
    [Lancaster,
    June 2,1823.]
    DORNICK and others against REICHENBACK.
    IN EKAOR.
    In ejectment, the probate of a will is prima facie evidence.
    A grantor without general warranty, is a competent witness in favour of the gran* tee; and if he has conveyed with an understanding that the property is still to bo his, merely that the grantee may carry on the suit, it goes only to his credibility. The verdict recorded in court is the only proper verdict: the paper verdict returned by, the jury is not evidence, nor is it to be filed or preserved.
    Fraud in fact is for the jury: legal fraud for the court to determine.
    Mere feebleness of'intellect, short of what might by many be supposed to amount to ideocy, is insufficient to render a will void.
    Error to the District Court for the city and county of Lancaster.
    
    Ejectment by Edward Graff Reichenbach against Elizabeth Eornich and others, for a lot of ground and three houses in the city of Lancaster, anda tract of 31 acres in the county of Lancaster. A verdict and judgment were rendered against the defendants, (now the plaintiffs in error,) in the court below, and the case came up on several bills of exceptions to evidence, and to the charge of the court, taken by the defendants.
    The plaintiff below claimed under the last will of William Graff, deceased, by which the premises were devised'to the plaintiff’s father William Reichenbach and wife, who afterwards conveyed them to the plaintiff by a deed of gift. The defendants held under the heirs at law of William Graff, and they had recovered the premises in a former ejectment brought against the plaintiff’s father, William Reichenbach. The defendants contested the validity of the will, on the ground of incapacity in the testator, from habitual intoxication and weakness of intellect, and of fraud and circumvention practised by William Reichenbach in procuring the will.
    The first bill of exceptions was to the court’s admitting the will proved in the register’s office in the ordinary form, to be read in evidence by the plaintiff.
    The second bill of exceptions was to the court’s allowing the plaintiff to read in evidence the deposition of William Reichenbach, the grantor in the deed of gift before mentioned. This bill of exceptions embraced a statement by the judge, that the objection was made to the competency of William Reichenbach as a witness, which the court overruled: but that no other objection was made to the deposition, or any part of it. This bill of exceptions contained, likewise, a memorandum from the judge’s notes, as follows: “ Deposition of William Reichenbach offered. Objected to, and requested to be noted by Mr. Hopkins. Admitted.”
    The third bill of exceptions was as follows:
    The cause being at issue and the jury sworn, prout the record, and the record of the ejectment brought by the heirs at law of 
      William Graff, viz. •William Krug and others, against William Reichenback in the Common Pleas of Lancaster county of January Term, 1817, in which the heirs recovered against the present plaintiff and his father, William Reichenback, who drew the supposed will under which plaintiff claims, and on which they defended themselves in that suit, having been given in evidence, the defendants offered to prove, that the said defence was repelled by the insanity of the supposed testator at the time of executing the said supposed will: and also, on the ground that the same was obtained by fraud and undue influence, and that the jury passed on both grounds, and to that end to give in evidence the privy verdict rendered by the jury in that cause, after proving the same to which the plaintiffs objected, and the court overruled the same, to which opinion the defendant excepted, &e.
    The court did not overrule the first part of the evidence, but told the defendants they might give such proof, and Judge Franklin was affirmed as a witness for that purpose, when it was distinctly admitted, that the grounds above stated were the subject matter of inquiry and decision on the former trial, and the identical subject of inquiry on the present trial. The court did overrule what is called a privy verdict, signed by the jury, which is the usual mode of bringing in verdicts in civil cases in Lancaster county, even where the jury do not separate; because the same was no part of the record, nor was it filed in the office, but was in possession of defendants’ counsel, and because the court did not think it was evidence on any ground.
    Charles Smith.
    A fourth bill of exceptions to evidence, offered by the defendants and overruled, was returned with the record: but embodying, under the seal of the judge, the objection of the plaintiff’s counsel thereto, namely, that when the evidence was overruled, no intimation of a bill of exceptions was given, nor was the court requested to note the objection, nor.was it stated what the objection was, and the bill was not tendered till the evidence was closed, and the last address to the jury of the plaintiffs’ counsel nearly concluded-
    The defendants requested the court to charge the jury on several points, and excepted to the answer of the court on the following:
    
      '¿dpoint. That it is a fraud in a step-father, appointed guardian to his step-son, who, on attaining his age, continues to reside with his step-father for 4 years 5 months and 4 days, and who on attaining his age fell into habits of intemperance in drinking, and carried it to great extent for several years before the end of that time, and who never carried on or transacted any business, or had the possession or management of his estate, to draw a will from his said step-son, giving his estate to the said step-father and his wife for life, and to the children of his step-father in fee, in exclusion of his own right heirs: that if the jury believe the facts so to be, they should find the said instrument not to be his will.
    
      
      Answer of the Court. This is a question of law mixed with facts. I am not obliged to answer it. Fraud is matter of fact, and the above circumstances, if they exist, áre evidence from whichthe jury may draw the conclusion, whether fraudulent or not.
    
      4th point. If the jury believe .the supposed testator’s senses to have become besotted with drunkenness, before and when he signed the instrument, drawn up by his former guardian and step-father in his own favour, and that of his wife and children, to the exclusion of the step-son’s own right heirs at law, it is not his will, and the heirs at law are entitled to the estate.
    
      Answer of the Court. I have answered this fully in the charge to be delivered, as well as all the others, in such manner as I conceived just and right.
    
      5thpoint. That the step-father and former guardian, with whom the supposed testator lived, and whose estate was in the hands of the guardian, when the step-father drew the instrument of writing, under which plaintiff claims, gave the estate to himself and his heirs, and the plaintiff having proved, by the subscribing witnesses to the will, that at the time of the execution of it by the supposed testator, (to whom at that time it was neither read nor did he read it himself,) he declared that he had given his estate to his mother during her natural life, and then to go to his half brothers, which is different from the dispositions of the will; if so found by the jury, render the said instrument fraudulent and void, or are evidence of fraud.
    
      Answer of the Court. It was proved, that the testator went himself to the house of the witness, and requested him to be a witness; and this whole point is matter of fact from which, if proved, the jury may or may not infer fraud, the same being evidence for their consideration. The court will not, upon the evidence, direct the jury to find one way or the other.
    The residue of this question is also matter of fact; whether the testator did or did not know the contents of the will as drawn, which is for the jury to ascertain. For, upon the abstract proposition, there is no doubt, that if a testator, by fraud, contrivance, or imposition is made to sign a will contrary to his intention, it would be fraudulent and void, and not his will. Whether the fact be so or not, I know not; especially as there were other witnesses proving declarations corresponding with the will.
    
      Qlhpoint. That the defendants, having proved in addition to the facts stated intheabovepoint, that the supposed testator being a bachelor, declared, some time before the signing said instrument, and several times, that he had no peace at home till he made bis will, and assigned his estate over to his mother and two brothers, (the children of the step-father who drew the will;) and also that the said supposed testator declared twice before he executed the said instrument, under which the plaintiff claims; “ God knows how long I may live, and there are better owners for this property than even Retchenback;” 
      (the step-father;) imd also, that the step-father kept him under, and that the step-brothers were pets, and saucy to him; and abo that he complained several times that his step-father used him ill, the same are if believed by the jury, strong evidences of fraud.
    
      .Answer of the Court. This like all the rest, is matter of fact, and evidence submitted to the jury, for their consideration, to draw their conclusions from it. Fraud depends on many circumstances, and the circumstances have been laid before the jury, and from the evidence of such circumstances, the jury may find fraud or not. Where the law is so blended with fact, as in these points, the court is not bound, and ought not to give any other opinion.
    .The court delivered a long charge to the jury, in which the law relative to the capacity necessary to make a will, and to the employment of fraud and undue influence in obtaining it were fully discussed. Among other things they charged that “ mere weakness of the mental faculty is not of itself sufficient to render a will void: there must be the absence of intellect or understanding. Mere weakness of understanding or a harassed and uneasy state of'mind, unless such harassed or embarrassed state of mind amounts to a positive derangement of intellect, (which requires minute.and difficult inquiry,) do not furnish a substantive objection to the validity of a will or contract.”
    The answers of the court to the above points, and the charge also, were excepted to by the defendants.
    Errors were now assigned,
    1. In the matter contained in the bills of exceptions.
    2. In the answers of the court to the 3d, 4th, 5th, and 6th questions, namely: in refusing to answer these questions, and answering them erroneously so far as they were answered.
    3. In the part of the charge above mentioned.
    
      Hopkins, for theplaintiffs in error,
    now relinquished the first bill of exceptions, the court intimating that the point had been decided in Logan v. Watt, 5 Serg. 8, Rawle, 212, and contended on the second bill of exceptions, that any error appearing in tbe bill of exceptions on a point material to the issue, may be assigned by the plaintiff in error, though not particularly stated in taking the exception in the court below. This was so decided in The Phoenix Insurance Company v. Pratt, 2 Binn. 308.
    The court, however, told Mr. Hopkins, .that by the bill of exceptions on this point he was confined to the objection to the competency of the witness; the judge having expressly certified, that there was no exception to the deposition, except on the point of com peten cjr.
    He then insisted, that the witness was incompetent, because he conveyed the property in dispute to his son the pláintiff as a gift: and no doubt for the purpose of becoming a witness. The conveyance was made while the witness was out of possession, having been dispossessed in an ejectment previously brought against him, 
      5 Johns. 498. The deposition showed, that the- witness conveyed because he was too poor to carry on the suit, and paid one half the expense.of the conveyance. It may be inferred from these circumstances, that the conveyance was in trust for the witness as to a moiety. When the witness was asked, whether he did not make the conveyance for the purpose of becoming a witness, he gave no answer to the question; so that it should be taken for granted that was the case.
    
      3d bill of exceptions. The court rejected the privy verdict given in the ejectment brought by the heirs of William Graff against William Reichenback. This was the best evidence the nature of the ease admitted, to show on what ground the verdict in that case was given.
    
      2d error assigned. 3d question. The court referred to the jury what they ought to have answered themselves. The opinion of the court may be asked' on any point relative to the issue, and refusal to give, it is error. Whart. Dig. 198, 199.
    
      4th question. This question ought to have been answered distinctly and specially, and not reserved for the charge, where it was mixed with other matter so as to weaken its effects.
    
      5th question. This question was not answered distinctly. The judge introduced other matter, and then answered the whole.
    
      6th question. This question likewise was unanswered: the court submitted it to the jury. They ought to have instructed the jury, as to the law which governs the relation of guardian and ward, and grants from the latter to the former. If a guardian accept a feoffment from his ward, the ward may bring an assise against him as a diseissor: for the guardian acts contrary to his duty, when he assents to any alienation made by his infant. Bro. Diss. 95. 3 Bac. Jib. 418. The same doctrine will apply to a devise to the guardian by a will drawn by the guardian himself, as was the case here. So a court of equity will not allow any gift or release to a guardian from his ward on coming of age. 3 Bac. Jib. 306, and ' cases 1cited. For so jealous are they of the influence arising from this relation, that they will, in general, rescind any transaction between the parties. 3 Bac. Ab. 418. Newl. on Cont. 449, 451. Settlements made, says the Chief Justice, in Say’s Executors v. Barnes, 4 Serg. 8f Rawle, 114, between guardian and ward, soon after coming to age, and especially before the ward is in possession of his estate, are always viewed by courts with a watchful and even a jealous eye. All this was embraced within the scope of the questions put to the court, and yet it was passed by without notice. It is clearly an error, if the court do not give their opinion on any legal point relevant to the issue, when asked by a party. Shaeffer v. Landis, 1 Serg. Razóle, 449.
    
    
      3d error assigned. The charge was faulty in stating, that “mere weakness of mind, without derangement of intellect,” will not avoid a will. Such imbecillity of mind as renders a person incapable of transacting the common business of life, incapacitates him from making a will. A lunatic or non compos mentis is defined by Blackstone to be, one who hath had understanding, but by disease, grief, or other accident, hath lost the use of his reason. And he says under the general name of non compos mentis are comprized, not only lunatics or persons under phrenzies, or who lose their intellects by disease, but those that grow deaf, dumb, and blind, not being born so, or such, in short, as are judged by the Court of Chancery incapable of conducting their own affairs. 2 Black. Com. 304. 
    
    In Rambler v. Try on, 7 Serg. & Rawle, 90, Duncan, J. considers as the test of incapacity, “a continued darkness of the understanding from birth until death, a perpetual infirmity from infancy, rendering him incapable of managing himself and hi§ affairs.” He also cited 2 Johns. Ch. 232.
    
    The court requested the counsel for the defendant in error to confine themselves to the third error assigned, in the charge of the court.
    
      Rogers and Buchanan then observed, that the judge’s charge must be taken altogether, and it would be found, that it was expressly said, that feebleness of mind might be so great as to disable one from making a will: and that a man incapable of managing his affairs could not make a will. Besides, the language assumed on the other side, is not that of the judge. He did not say, that mere weakness of understanding, unless it amounted to derangement, was not sufficient to invalidate a will: but that a harassed state of mind was not sufficient, unless it amounted to a derangement of intellect. No great share of reason is necessary to make a will. 1 Yeates, 114. . ,
    
      
       See 1 Ftmbl, Eg. 37, where this passage is commented on,
    
   The opinion of the court was delivered by

Gibson, J.

In actions of ejectment, the practice of receiving the probate of a will as prima facie evidence, has obtained in this state, time out of mind; and has beside received the sanction of this court in Logan v. Watts, 5 Serg. & Rawle, 212.

The defendant, having read the supposed will, offered in evidence the deposition of William Reichenback, a devisee under whom he claims. The deed from the witness, contains no covenant of general warranty; but the deposition was objected to because, as was alleged, the witness being too poor to carry on the suit, had conveyed to his son with an understanding that the property should still belong to him. Taking this to be true, it is clear it went to the credibility of the witness and not to his competency. -

To prove that the will was obtained by fraud and undue influence, the plaintiffs gave in evidence the record of an ejectment between the same parties; and to show that the validity of the will was passed upon by the former jury, offered in evidence what we inaccurately call a privy verdict; which was rejected. A privy verdict is that which, for the sake of being released ftom confinement, is given by a jury out of court to a judge; but if the court be adjourned to the judge’s chamber, it is not privy but public. With us a practice equally safe and convenient has obtained, of permitting the jury to reduce their finding to writing, and after sealing it Up, to separate till the meeting of the court; when the paper being handed to the judge, their verdict is received from the lips of the foreman, and recorded in the usual way. But this difference is unimportant; for neither in the one case or the other, is a privy verdiet thus delivered, recorded. As the jury may depart from it, their finding in court is what decides the rights of the parties, and what is admitted of record. The paper delivered to the judge having performed its office, is never filed or preserved; and if it even should be, it would form no part of the record. The verdict in open court by the proper officer, was therefore the only competent evidence of what the jury directly found: what they passed upon might be proved by the jurors themselves ; and the plaintiff had the full benefit, of that under the court’s decision.

The plaintiffs propounded several points to the judge, founded oil a statement of facts supposed to have been proved, such as the principal devisee being the step-father and guardian of the testator, and having been as an inmate in his family; an enfeebled state of the testator’s intellects from intemperance, the will being written by the step-father, declarations of the testator that he had no peace at home till he consented to make it, and a variety of other circumstances; and then prayed the court to direct the jury that if they were of opinion those facts were true, they should find for theplaintiffs. The judge was of opinion that the facts stated were evidence of fraud, but not conclusive; and that the questions proposed were so mixed of fact and law as to render it improper to give a positive direction with resped to them. From this I in one particular dissent: these points presented questions purely of fact, and were for the exclusive consideration of the jury. There undoubtedly are cases where fraud arises by implication of law', from specific facts; such as retention of possession after the execution of an absolute bill of sale of chattels; and there the court is to judge: but here the question was not whether one or more .circumstances should be deemed fraudulent per se, on the score of public policy, but whether there was actual fraud and imposition practised on a weak man; which was evidently a matter exclusively for the jury.

Then as to the exception to the charge: The judge filed the whole charge, pursuant to the act of assembly: and the error is assigned in the following extract from it: Mere weakness of the mental faculty is not itself sufficient to incapacitate, but there must be the absence of intellect or understanding. Sickness and fevers impair the mind to a certain degree, yet there may be enough left for the purposes of a will: all that is necessary is that a disposing mind and memory remain. Mere weakness of understanding, or a harassed and uneasy state of mind, unless such harassed or embarrased state of mind amount to a positive derangement of intellect, (which requires a minute and difficult inquiry,) does not furnish a substantive objection to the validity of a will.” It is not pretended that a harassed or uneasy state of mind,-unless the exciting cause has driven reason at least partially from her seat, is sufficient of itself to avoid a will: but this part of the charge is excepted to, because there may be, it is said, a degree of imbecility short of ideocy, which may nevertheless incapacitate. Iam not going positively to say whether this be so or not; or.if it be, to attempt to draw the line between capacity and incapacity. Such attempts have been made; and'have ended where they began, in just saying that the testator must have a sound disposing mind and memory: as in Winchester’s Case, 6 Co. 23., where it is said that “ by law it is not sufficient that the testator be of memory, when he makes his will, to ahswer usual and familiar questions, but he ought to have a disposing memory, so that he is able to make a disposition of his lands with understanding and reason; and that is such a memory as the law calls sane and perfect memory. ” This definition isjust about as certain and satisfactory as any I have met with, or perhaps as the subject is susceptible of. It is certainly better than that given in Combe’s Case, Moore’s Rep. 759, where it is said: “ Sane memory for the making of a will is not at all times where the party can speak yea or no, or had life in him; nor where he can answer any thing with sense: but he ought to have judgment to discern and be of perfect memory,” otherwise the will is void. Now we should be here on sharp points indeed, if we were to reverse for a supposed want of precision or accuracy of definition, where the thing is, from its nature, in a great degree incapable of being defined. But let us see whether it is altogether certain that mere imbecility short of ideocy, is sufficient to avoid a will. Swienburne, whose book is perhaps still the best we have on the subject, says (Part 2. §4.) If a man be of mean understanding, neither wise nor foolish, but indifferent as it were between a wise man and a fool, yea though he. rather incline to the foolish sort, go that for his dull capacity he may be termed grossum caput, a dunce,,such a one is not prohibited to make a testament: unless he be yet more foolish and so very simple and sottish that he may easily be made to believe things' incredible or impossible; as that an ass can fly, or that trees did walk, beasts and birds could speak, as it is in JEsop’s fables.” ■ Now such a person would undoubtedly be pronounced an ideot. But it is said the judge went further and said that any thing less than a total absence of intellect would be sufficient to sustain the will. It is certain that a mere glimmering of reason is not enough. But the part of the charge in which the error is assigned is near (he conclusion, and where the judge was recapitulating the principles he had before more at large laid down. If we were to decide on detached sentences without a consideration of the whole, we should render the operation of the act requiring a judge to file his charge of record, more oppressive to suitors, and obstructive of the speedy and fair administration of justice, than it has yet been found. This part must therefore be taken in connexion with what was said before; and we find that the judge in the outset laid down certain principles in which it was clearly expressed, that a slight degree of understanding is sufficient for the purpose of making a will; but not where the mind is so dark and obscured, either by nature or from accidental causes, as to fall within that description which the law gives, of persons mentally incapable:” and again, that “ mere weakness of mind does not incapacitate where there is no fraud or imposition, if it be not so feeble as to become what the law calls mental incapacity.” Now fpebleness of mind is very different from the absence of every thing like mind: and the language here used is inconsistent with the supposition that the necessity of a total annihilation of the testator’s intellects was intended to be inculcated. Taking therefore all the parts of the charge together, it is evident the judge meant to say and the jury understood, that mere feebleness of intellect short of what might by many, be supposed to amount to ideocy, is insufficient to render a will void; and in this I cannot say there is error,

Judgment affirmed.  