
    Gass’ heirs vs. Gass’ ex’rs.
    
    1. The question of sanity or insanity, is a question of fact peculiarly for the decision of a jury, and a party seeking to impeach the validity of a will on the ground of the insanity of the testator, must establish the fact by the clearest and most satisfactory proof.
    2. Where the testator believed in reference to a future state of existence, that there were degrees of happiness therein; and that in whatever circle a man lived in on the earth he would move in the same in his future state, and that his pre-eminence there depended materially upon the amount of property he acquired hel*e, and the charitable purposes to which he might have appropriated it. Held, that such opinions constitute no evidence of insanity.
    3. It seems, that no belief as to future rewards and punishments, or the principles of justice upon which they are to be administered, or other religious creed, can be regarded as evidence of insanity. There is no test by which their truth can be ascertained.
    4. Where a will was written on two pieces of paper, and only one of the pieces containing the signature of the witnesses, it is necessary that both pieces should have been produced at the time the witnesses attested it. That both pieces were present, however, is a fact which maybe inferred from circumstances.
    5. Capacity to make property and take care of it, is evidence of sanity, but not conclusive.
    6. The interest which will disqualify a witness, is a direct and immediate interest in the' subject matter of the dispute, or where the record of the suit may be used as evidence for or against the witness: and, therefore, where a testator devised his estate to a school district, for the education of the children therein, the inhabitants of such district were competent witnesses as to the sanity of the testator.
    7. A subscribing witness to a codicil, who was a legatee under the will, was not competent to be examined in reference to execution of the codicil, and the sanity of tlie testator at the time of making it. A codicil is a part of a man’s will, and furnishes conclusive evidence of his considering his will as then in existence.
    8. The statute of George 2d, which makes void a legacy to an attesting witness to a will, is not in force in this State.
    John Gass, at an advanced age, and in infirm health, made his last will and testament, in the county of Greene, on the 1st day of March, 1837. This will appointed Sevier, Williams, Ross, and testator’s wife, Betsy, as his executors.
    In September, 1840, he made a codicil to this will, by which he revoked and annulled the appointment of Ross as one of his executors, and died sometime thereafter.
    Gass was during life an eccentric man, having peculiar opinions on all subjects, and obstinately attached to them. He (amongst others) entertained the opinion that there were degrees of happiness' in a futui-e state of existence; that in whatever circle a man moved in on earth, he would move in the same in the second state of existence; and -that the state of pre-eminence he would acquire in his future existence depended in some measure upon the amount of estate he should acquire, and the charitable purposes to which he should contribute it.
    He accumulated a considerable estate, consisting of land, ne-groes and other property, and at different periods of time gave small portions thereof to his children as they married.
    The will gave the place he lived on, the negroes, the stock thereupon, the furniture, See. &c., the mills and distillery, &e. to his wife, during her life or widowhood. This constituted the mass of his estate. It however directed, that at the death or marriage of his wife, his slaves should be set free, and the sum of $100 given to each family, to enable such family to remove to a non-slaveholding State. He also directed, that the mass of his real estate and his other property be reduced to cash and vested in some safe stock, and the interest thereof to be perpetually devoted to the establishment of a free school “in the bounds of the Gass School district.”
    He had eight children, and to the “families” of each of them he gave $50, “to be equally divided amongst them;” using in his will the following language in reference to these devises: ‘ ‘This, with what I have given them, is all they may expect. When they left me, I portioned them off as well as my circumstances would admit, and some of them have made a poor use of it.”
    He made some specific legacies to some of his grand children, characterized by singularity and accompanied by eccentric remarks.
    Those entitled to his estate by the laws of descent and distribution, contested the validity of this testamentary disposition of his estate on the ground of insanity, and the issue was submitted. to a jury at the May term, 1842, Lucky, judge, presiding.
    Much testimony was introduced in reference to the question of the insanity of the testator at the time of the execution of the will and codicil, which it is unnecessary here to set forth.
    Amongst others, David Gass, a subscribing witness to the codicil, was introduced. The reception of his testimony was objected to by the heirs, on the ground that he was a legatee under the will, and incompetent. The objection was overruled, and he testified as to the execution of the codicil, and as to the state of the mind of John Gass at the time of the execution of the same.
    Sample, an inhabitant of the Gass School district, and having children therein, was introduced in support of the will. His testimony was also objected to, and the objection overruled and his testimony submitted to the jury.
    The jury, under the charge of the presiding judge, rendered a verdict in favor of the executors, and a motion for a new trial having been made and overruled, the heirs appealed.
    
      J. A. McKinney and Fecit, for the plaintiffs in error.
    
      T. A. R. Nelson, for the defendants in error.
    1. It was not necessary that the testator should sign, or the subscribing witness see both the sheets upon which the will was written; and it was a question of fact — which could be proved positively or by circumstances — for the jury to determine whether all the sheets were present at the time of the attestation. 1 Vesey, jr., 11: White vs. British Museum, 6 Bing. 310: 2 Starkie (last ed.) 918, text and notes, 919-20.
    2. The inhabitants of “Gass School District” were competent witnesses. Nason vs. Thatcher, 7 Mass. 398: Cornwell vs. Isham, 1 Day. 35: 2 Starkie Ev. 929, (notes.)
    3. David Gass, a witness to the codicil, was competent, although he may be (which, is denied) a legatee or devisee under the will; as the devise or bequestis void. 2 Starkie, 921: 4 Johnson, 311; 1 J. C. 63: 2 J. C. 314: Nelms 8f McCulloch vs. Pugh, 1 Murph. 149.
    4. As to the general principles asserted in the charge of the circuit court; the law presumes every one to be sane until the contrary appear. 2 Starkie on. Ev. • 928: 1 Williams on Ex’rs. 16: Shelford on Lunacy, 178. The will being written by the testator, affords prima facie evidence of sanity. Temple vs. Taylor, 1 Hen. & Mun. 476: 1 Williamson Ex. 416, (note): 2 Starkie on Ev. 633.
    Old age alone is no disqualification. Van Alst vs. Hunter, 5 John. Ch. Rep. 158: 2 Starkie Ev. 930, (note): Bootle vs. Blundel, 19 Yesey. - '
    Mere weakness of understanding is no disqualification, as grossiim caput, a dunce, may make a will. 1 Williams, 32.
    If the testatqr had sufficient understanding to make a bargain, or to do any binding act, that is the proper standard by which to judge of his capacity. Shelford on Lunacy, 177: 2 Starkie Ev. 930, (note.)
    It is the office of the subscribing witnesses to ascertain and judge of the testator’s capacity. 2 Starkie Ev. 932, (note.)
    The testator has the absolute right to dispose of his property, may even disinherit his children; and though the distribution made of the estate by the will, may be regarded as imprudent and'unaccountable, the court will not examine into the wisdom and prudence of men in disposing of their estates. Jaclcson vs. Bates, 9 Cow. 208: 2 Starkie, 931-2: Shelford, 177, 179, 191-2: 1 Williams, 32.
    
      Robert McKinney, on the same side.
   Tuklby, J.

delivered the opinion of the court.

This case involves the question of the validity of the last will and testament of John Gass, deceased, and was tried in the county of Green, upon an issue of devisavit vel non, which was found by the jury in favor of the will, and judgment rendered accordingly; to reverse which this writ of error is prosecuted. The will is attacked by the heirs of the testator, upon the ground, that at the time it purports to have been executed, he was not of a sane and disposing mind, and that, therefore, no rights áre acquired under it, but' that he died intestate, and that they are entitled to bis property under the laws of descent and distribution. There is much testimony introduced upon this question on both sides, which it is unnecessary for us to examine. The question of sanity is - peculiarly a question of fact for the decision of a jury, and a party seeking to impeach the validity of a will for a supposed want of it on the part of the testator, must establish the fact of the insanity, by the clearest and most satisfactory proof. 2d Starkie Evid. 982: 1st Williams on Ex. 17. The verdict of a jury upon the question will not be set aside by a reviewing court but for great rashness on their part, or for error on the part of the inferior court in declaring the law as applicable to the case. The juiy was guilty of no rashness; the verdict is in conformity with the weight of testimony, and the only question for our consideration is, whether the law upon the various points involved in the discussion was properly expounded by the Court. Many points are debated, the most material of which we will examine.

1st. There is proof in the record tending to show that the testator held opinions somewhat peculiar in relation to futurity, to wit, that there were degrees in heaven; that whatever circle of life a man lived in on this earth, would be enjoyed by him in heaven; that his pre-eminence there depended materially upon the amount of property he acquired here, and the charitable purposes tó which he might have appropriated it. This it is contended is delusion, and the court was asked to charge, that it was evidence of insanity sufficient to avoid the will.- The court said, if a testator acts under a delusion which is the result of a disordered mind amounting to insanity, and the delusion influences the testator in the execution of his will, it will be sufficient to avoid his will; whether any particular delusion amounts to such an alienation of mind as will be esteemed insanity, is a question of fact for the jury to determine; if they believed that John Gass was under the belief that the doing some great charitable deed would advance him to a high state in heaven, and that the delusion was so absurd and visionary as to amount to insanity, and executed his will under its influence, it would be sufficient to avoid it. This charge is objected to as being vague and uncertain. It is difficult to conceive how it could have been made more specific without interfering with the province of the jury, whose right it is, as we have seen, to determine the question of insanity. The judge might perhaps have attempted to define what constitutes delusion, but this is a most difficult thing to do, and is but very unsatisfactorily done even by the most acute and metaphysical minds that have investigated it; he certainly could not legally have said that the points of belief avowed by the testator were delusion, because that would have been deciding the very question for the trial of which the jury was empanneled, for delusion is insanity. Shel-ford in his treatise on the law of lunacy, says, (p. 40,) the true criterion, the true test of the absence or presence of insanity, where there is no phrenzy or raving madness seems to be the absence or presence of delusion, that delusion and insanity seem to be almost convertible terms, so that a patient under a delusion on any subject or subjects, is for that reason essentially mad or insane on such subject or subjects to the extent of the delusion. In 3d Haggard’s Rep. pages 598-9, Sir John Nichol, who is high authority, says, “that no case had ever come under his consideration, where insanity had been held to be established without any delusion ever having prevailed, nor was he able exactly to understand what is meant by a lucid interval, if it did not take place when no symptoms of delusion can be called forth at the time.” If then, delusion be insanity, to charge that the proof establishes delusion, would be to charge that the insanity is proven, the question of fact to be determined: but the court was asked to charge, that it was evidence of insanity sufficient to avoid the will'. The points of belief avowed by the testator are expressions of opinion, which opinion is either a delusion or not; if it be a delusion, it is direct insanity; if it be no delusion, there is no insanity, and of course it cannot be evidence of it. But who shall say that the opinion avowed by the testator, as to futurity, is a delusion. Delusion is defined to be, when a patient conceives something-extravagant to exist which has no existence but in his own heated imagination, and having so conceived it, is incapable of being reasoned out of the conception, (Shelford on Lunacy, 40,) as the fancying things to exist which can have no existence, and áre impossible, according to the nature of things, as that trees walk, (Shelford 293,) the magnifying slight circumstances beyond all reasonable bounds, as if the parent of a child, really blameable to a certain extent in some particulars, takes occasion to fancy her a fiend, a monster, an incarnate devil, (Shelford, 41.) We can comprehend the delusion of the man who fancied he was Jesus Christ, and kindly extended his forgiveness when asked, saying, I am the Christ; also his, who imagined he correspon ded with a princess in cherry juice, and his, who dreamed dreams, and heard voices directing him to bum York Minster church. But we cannot comprehend a delusion upon a point of belief as to the nature of future rewards and punishments, and the principles of justice upon which they will be distributed. This is a subject beyond the ken of mortal man, and in one sense of the word, perhaps, every individual is laboring under a delusion who attempts to solve it. Yet there is no subject we are more disposed to theorise about, and about which there is a greater conflict of opinion. The fool hath said in his .heart there is no God; and of course no future rewards and punishments; a dreadful error, yet no one apprehends that it amounts to insanity, and that he has not a disposing mind. The Turk looks to his heaven of sensual enjoyment, the Christian to his intellectual points of faith, differing as widely as the sources of their religion. Delusion in its legal sense cannot be predicated of either, and indeed of no creed upon the subject, because there is no test by which it can be tried. The testator’s impressions are innocent and harmless at least, and for aught we can say, may be true. Charity in all its ramifications, is a theme upon which our Saviour, while on earth, dwelt again and again with marked emphasis, and enforced with the strongest promises ofrewards and punishments. Upon this point there is no error.

2d. The proof shows that the will of the testator was written by himself upon two sheets of paper which upon production appear to have been once united, but there is no proof that they were so at the time of the attestation, nor is there any direct proof that they were both present at the time the witnesses attested the will. The court charged the jury upon this point, that it was necessary where a will was written on separate pieces of paper, and the last only signed by the witnesses, that they all should be produced at the time of the attestation, but that this fact might be proven by circumstances. This charge is correct; but it is said there were no circumstances from which it might be presumed. In the total absence of proof to the contrary, to hold the executors to strict proof upon this subject, might, and no doubt would, often be productive of serious consequences where wills were written'upon different sheets of paper, which after having been united become accidentally separated. The only case produced upon the subject, is from 3d Burrow, p. 1773. Testator had written his will on two sheets of paper, and’a codicil on a third, and showed the whole will and codicil to one witness; the two other witnesses never saw the first sheet, and it was not upon the table at the time of their attestation. The court held, that the jury ought to have been directed to presume that the first sheet was in the room. This is a strong case, much stronger than the present. There was then direct proof that two of the witnesses never saw the first sheet; that it was not upon the table at the time of the attestation; there is no such proof here; the whole will is in the hand writing of the testator; whenever he called upon an attesting witness he told him, ¿Ais is my will; this would not have been true if it had only been a part of it. He went to town to procure a witness; it would be a violation of all probability to suppose that he carried with him but a part of his will. The charge of the court was correct, and the circumstances justified the finding.

3d. It is contended, that the court below erred in charging the jury that the capacity to malee property and take care of it, is evidence of sanity. This is not error, it is evidence of sanity, but not conclusive.

4th. The testator devises the mass of his property, after the death or marriage of his wife, to the Gass School district, for the promotion of education. Citizens resident in the district were introduced and examined in support of the wifi. This it is objected is erroneous, because -of the interest of witnesses under the will. The point of interest has long since been narrowed down by the decisions of the courts, to a case of direct and immediate interest in the subject matter of dispute, or the case where the record of the proceedings and judgment might be subsequently used as evidence by or against the witness; neither of these is this case. The witnesses have no direct and immediate interest; if interest at all, it is collateral, depending upon the facts of their remaining in the school district, having children and choosing to send them to the school.

5th. David Gass, one of the subscribing witnesses to the codicil, is a legatee under the will; he was introduced and examined upon the trial, and proved the codicil and the sanity of the testator at the time of making it. This was objected to, but the objection was overruled by the court. In this we think there was error. David Gass was ah interested witness, and ought not to have been permitted to be examined. The court went upon the idea that the probate of the codicil and the sanity at the time of making it, did not' affect the question of sanity at the time of making the will. In this he was mistaken. A codicil will amount to a republication of the will to which it refers, whether it be annexed to the will or not, for every codicil is in construction of law part of a man’s will, and as such furnishes conclusive evidence of the testator’s considering his will as then existing. 1st Williams on Ex. 105, and the numerous authorities there referred to. The necessary consequence is, that though the testator may have been of insane mind at the time of making the will, yet if he were sane at the date of the codicil, the will is established. And yet again: when the question of insanity rests, as it does in this case, upon a general decay of body and mind, the result of old age and disease, proof of a disposing mind at the date of the codicil, would be strong corroborative proof of a disposing mind at the date of the will. David Gass was then clearly interested, and not a competent witness. But it is argued, that the statute of George the 2d, which makes void a legacy to an attesting witness of the will, is in force in this State and makes the witness competent. This statute was passed at a period of time subsequent to that at which English statutes have been held not to be in force in this country, unless in terms extended to the colonies. This statute of George 2nd, in .terms, extends only to such colonies as had in force the statute of 29th, Charles the 2d, or some other statute requiring subscribing witness to wills. This was not the situation of North Carolina at the time of its passage.' The statute of frauds and peijuries, passed 29th,- Charles .2d, never was in force in North Carolina, and there was at the date of the statute of George 2d, no statute requiring subscribing witnesses to wills. It is not, therefore, in force, and does not malee the witness competent. His reception vitiates the proceedings and a new trial must be granted.

Judgment reversed and case remanded.  