
    
      D. Martin and wife and others vs. The Executors of Abner Teague.
    
    1. Although undue influence, being a question of fact, belongs to the decision of the jury, yet the presiding Judge may also express his opinion upon the facts, avoiding all undue control of the jury. Such expression of his opinion, or his silence on that head, must be left to his own sound discretion. The circumstances of the case may render such aid necessary, or superfluous.
    2. Where the court perceives but very little in the evidence to shew that a testator’s mind was unsound, and even that opposed by good evidence, especially that of the subscribing witnesses, and a verdict has been rendered against the will, most probably upon this ground, upon unsatisfactory testimony of little more than bare opinions, a new trial will be ordered.
    3. It is the incidental privilege of courts of justice to reconsider, or to have reconsidered, their possible errors; and although from the constitution of juries being temporary, they cannot themselves reconsider, their privilege, like that of a Circuit Judge, being placed in other hands, yet still, it is no less their privilege on that account. ■
    4. It is at the foundation of all new trials by a jury, that they will probably render a different verdict. But they are always granted without prejudice to their rendering the same verdict.
    
    
      5. Where undue influence is the predicate of a verdict setting aside a will, it should be brought to bear against the true disposing mind of the testator in the matter and subject of his last will.
    6. It is not enough that there has been a general influence merely, which may or may not have been used fraudulently or unduly, and to which general influence so many men are habitually subject.
    
      7. The cases of Thompson vs. Farr, 1 Spears’s Rep. 93; Hobby vs. Bobo, M. S. Dec. vol. 54; Tompkins vs. Tompkins, 1 Bail. 92; and Lide vs. Lide, 2 Brev. 403, referred to as embracing the principles of this decision.
    
      Before Richardson, J. at Laurens, Fall Term, 1842.
    The Ordinary of Laurens District had admitted to probate the supposed last will of Abner Teague, deceased. And this was an appeal from the decision of the Ordinary.
    Two of the subscribing witnesses (the third being absent from the State) proved the will; and prima facie the sound and disposing mind of the testator, (fee. very fully.
    The objections were then offered—
    
      1. That the testator was not, at the time of the execution of the will, 15th February, 1840, of sound mind, memory and discretion.
    2. That he was, at least, of a weak mind and memory— was aged and easily imposed upon, and had been unduly influenced, and induced to execute the supposed will. Upon both these heads, the evidence is detailed very fully in his Honor’s notes, but as the bearing and effect of it is adverted to in the judgment of the court, it is not deemed essential to the understanding of the case to give it at length.
    In charging the jury, the presiding judge defined what the law means by requiring that testators must be of sound mind, memory and discretion; the proper office and duty of subscribing witnesses when called on by the testator, which in his judgment had been fulfilled in this case; noticed the degree of credit which should be allowed to their opinion of the sound and disposing mind of the testator; and that he could not perceive in the counter evidence, sufficient evidence to outweigh their opinion, which was full and unqualified in support of the mental ability of Abner Teague, and of the supposed will. But the jury were finally to decide whether the testator was of such sound and disposing mind, memory and discretion, as the court had defined and explained those faculties. But secondly, admitting that the testator possessed, at the moment of the execution of his will, sufficient mind, memory and discretion, yet if these had become feeble, though not unsound, and he had been unduly biased, or fraudulently influenced to execute the will in question, the jury might properly set it aside as a fraud upon the testator. That upon this second question, the jury constituted the exclusive judges, and were to decide it as a question of fact from the whole evidence. The court suggested no opinion on this head of the case, (not that the court might not have done so.) The jury found a verdict against the will.
    The executors appealed, and moved the Court of Appeals for a new trial, on the following grounds.
    1. Because his Honor, the presiding Judge, charged the jury, that the question of undue influence was a question exclusively for the jury, and that the court ought not to express any opinion on the subject.
    2. Because there was no proof of incapacity, fraud or undue influence; on the contrary, the proof of capacity was full and conclusive.
    
      Burt <§' Young, for the motion.
    Sullivan, contra,
    commented on the nature and necessity of instructions and reading over, and of that undue influence which will render void a will. He contended that, on both of these grounds, the testimony warranted the conclusion that testator’s will was exceptionable, and ought not to be sustained. In support of this view of the case, he cited the case of Tompkins vs. Tompkins, 1 Bail. 92.
    
      J. J. Caldwell, same side.
    Although the proof does not amount to a total want of capacity in the testator, it is abundantly sufficient to establish such weakness of body and mind, connected with the peculiar position of the parties, as to bring this case within the rule in Billinghurst vs. Yickars, 1 Eng. Eccl. Rep. 67, which has been recognized and adopted in Tompkins vs. Tompkins, 1 Bail. Rep. 96, as a principle well established, “ that where capacity is in any degree doubtful at the time of the execution, there must be proof of instructions, or reading over; and that the presumption is strong against an act done by the agency of the party to be benefirted; and although the court will not presume fraud, it will require strong proof of intention.” The testator was a very old man, whose powers of perception were greatly impaired, and whose memory was fast failing; he was afflicted with the rheumatism ; had been sick, and had been salivated a few days before the date of the alleged will, which was in the handwriting of Dr. Teague, (one of the principal legatees) who had copied it from a draft drawn, at his request, by an attorney. There was no proof of its having been read over to testator, who had quit keeping house, and had lived with the Doctor for several years; ho was his son — his agent transacting his business, and his physician, in whose house and presence it was executed, where testator continued to reside until his death. Neither charity nor skepticism can make us doubt but, that an overwhelming influence might have been easily exercised over almost any testator similarly situated. The case of Hutton vs. Blalock et ux. 2 Mill’s Con. Rep. 231, was not so strong as this ; there General Hutton, (the father of the principal legatee) was the son-in4aw of testator, and drew his will. His mind had been impaired, but not to the extent to incapacitate him from making a will; yet the court held that this, coupled with the facts that tended to shew that undue influence might have been used in obtaining it, upon a mind too feeble to resist artifice or persuasion, furnished sufficient reasons for not disturbing the verdict against the will, as the facts were fairly submitted to the jury, and their verdict had the effect of securing to the persons best entitled in law and reason, the estate of the deceased.
    Nor is the doctrine of undue influence of as recent origin as has been supposed — it has ancient authority to support it. Swinburne, in his treatise on testaments and last wills, (3 vol. 887) says, that “it is not unlawful for aman, by honest intercession!, and modest persuasions, to procure either another person or himself to be made executor; neither is it altogether unlawful for a man, even with fair and flattering speeches, to move the testator to make him his executor or to give him his goods,” except in the six cases that he enumerates — among which are, 1st. fear; 2d. flattery joined with fraud and deceit; 3d. “when the testator is a person of weak judgment and easy to be persuaded, and the legacy is great;” 4th. “when the testator is under the government of the persuader or in his danger, and, therefore, if-the physician, during the time of sickness, be instant with the testator to make him executor, or to give him his goods,, this testament is not good,” (fee; 5th. where the persuader is very importunate, (fee.
    It was held by Rolle, C. J. in Hacker vs. Newborn, Style’s Rep. 427, “ that if a man make his will in his sickness, by the over importunity of his wife, to the end that he may b.e quiet, this shall be a will made by control, and not a good will.”
    In the case of Ingram vs. Wyatt, 3 Eng. Eccl. Rep. 167, it was decided that, “mere evidence of execution of a will and codicil by a person of weak and inert mind, appointing his attorney and agent sole executor, and almost universal legatee of a large property, is insufficient, without proof of instructions by the deceased ; instructions for the will being given to the solicitor who prepared and attested it, by and in the handwriting of the executor’s father, (also the deceased’s co-agent and attorney) the codicil being prepared exclusively for his benefit by the executor, in whose house the deceased was living, apart from his family — the court pronounced that the executor’s case was not sufficiently established against all the presumptions and suspicions that attached to it. Also, the cases of JBrydges vs. King, 3 Eng. Eccl. R. 256, and of Mursh vs. Terrell, 4 Eng. Eccl. Rep. 33 — 4. In these cases, the peculiar position of the parties benefitted as attorney and client, agent and principal, or even of a favorite domestic companion, with a testatrix in a state of extreme weakness and debility, (although their capacities were not intestable) overthrew the wills, as having been obtained by undue influence; the proof must exceed a mere formal execution, it must establish that the deceased dearly understood and freely intended to make the disposition of the property which the will directs.
    In Baker vs. Batt, 1 Curt. Ecc. Rep. 125, a husband caused a will to be prepared by a solicitor, unknown to his wife, constituting himself her executor and residuary legatee; shortly before, she had expressed her intentions to make a different will; the will was pronounced against, and although signed by deceased, a marks-woman and two attesting witnesses who deposed in favor of the paper execution, although her faculties were not more impaired than those of persons generally in severe illness.
    In the case of Ullman et al. vs. Hatcher, Ex’’or. Rice’s Rep. 271, the question of competency to make a will, and of undue influence in procuring it to be made, were held questions of fact for the jury, who found against the opinion of the presiding Judge on the first question, and against the will.
    As to whether undue influence be a question of law or fact, it must follow in the analogy of “probable cause” which, when the facts are contested, becomes a mixed question of law and facts, to be decided by the jury, under the instructions and explanations of the presiding Judge. Paris vs. Wad-dell, 1 McMul. 358.
    The case was not argued- in reply.
   Curia, per

Richardson, J.

' Upon the first ground of the appeal, I have little to observe.

In the case of Thompson vs. Farr, Speers’s Rep. 93, this court very recently decided, that the question of undue influence being one of fact, belonged to the decision of the jury. It is a question upon the imposition of a false will. And although the presiding Judge may also express his opinion upon the facts, while he avoids all undue control of the jury, yet such expression ,of his opinion, or his silence on that head, must be left to his own sound discretion. The complexity of the facts, the character of the case, or even the management of it, in the argument of counsel, may render such aid necessary or superfluous.

The particular case afforded a good illustration of the last position. One great, if not the chief, stress of the argument, was upon the supposed influence unduly practiced upon Abner Teague; but without any material difference in the meaning of undue influence. The court was, therefore, left with nothing material to define, expound or enforce on that head. The court also avoided giving any opinion upon the conclusion to be drawn from the particular evidence before the jury. But not because the court might not have done so, legally or judicially.

Still, let it be observed, as noticed by the appealing counsel, that the Judge was very unwell, and-did confine his charge to its bare essentials. But he expounded fully what sound mind means, and added his own opinion, that the testator’s mind was sound, and his memory sane. So much the case still required. The decision of the appeal must, then, turn upon the second ground taken.

2d. That there was no proof of mental incapacity in the testator to make a last will; nor'of undue influence practiced upon his disposing mind.

Upon both of these subjects of judicial investigation, which have lately become topics of great interest, as well as upon the meaning of the disposing mind of testators, and the application of undue influence to that disposition of mind, this court very recently took the case of Thompson vs. Farr, Reported in 1st Speer’s p. 93, for a proper opportunity, as that case was there finally disposed of by the second verdict, to express its opinion, to wit:

1st. Upon “the reasonable mind and sound memory” essential to the civil individual right of making any last will.

2d. Upon the necessity of a free and disposing mind, exempt from any undue or improper influence, in order to render such will valid and good in law ; and, finally, upon the particular bearing and stress of the supposed undue influence. Whatever shape it may assume upon the peculiar disposing mind or will of the testator, in contradistinction to the due and common influence, which one mind, or a friend, may rightfully have and exercise over another, and to the right of every man to take advice and counsel, before he finally and fully decides upon his own course of conduct. In the case before the court, this, distinction on the one side, and the converse on the other, as each assumed the facts to indicate, was at the bottom of the argument.

When the testator’s mind is not proved to be unsound, and there is no satisfactory proof that he was unfairly influenced to adopt the particular will, courts can no more set it aside than his contract. But both contracts and wills being subject to frauds, are equally open to such judicial investigation, and may be set aside for fraudulent imposition, circumvention or undue influence.

But as this case is again to be committed to the jury, the court will do little more than refer to the case already noticed, to those of Hobby vs. Bobo, MS. Dec. 5 vol. 440; Tompkins vs. Tompkins, 1 Bail. 92; and Tide vs. Tide, 2 Brev. 403, for the principles of its present decision, and would send the case back with as little prejudice as possible.

First, then, we perceive in the evidence very little indeed to shew that the testator’s mind was unsound, and that little was opposed to good evidence, especially by the subscribing witnesses, that it was still competent for all the purposes of a last will. Upon this question, if we may judge from the opinions of several witnesses, who gave very unsatisfactory reasons in their support, it is probable the verdict turned.

But we cannot see a man stultified, and thereupon disfranchised of an important privilege, and property trans ferred, as a consequence, upon most unconvincing testimony of little more than bare opinions, and not give a chance for reconsideration bv the same tribunal.

It is the incidental privilege of courts of justice to reconsider, or to have reconsidered, their possible errors. But as from the constitution of juries, that tribunal being temporary, they cannot, themselves, reconsider, their privilege, like that of Circuit Judges, has been placed in other hands. Still, it is no less their privilege on that account. It is at the foundation, therefore, of all new trials by a jury, that they would probably render a different verdict. But they are always granted idthout prejudice to their rendering the same verdict.

Jealous views upon this popular subject, arise from the possibility that the privilege may be abused, or from a partial or prejudiced consideration of our whole judicial system. And yet, experience points out plainly, that the privilege of reconsideration must be preserved somewhere. Jury trials, more rarely, yet sometimes, require it. In, perhaps, nine out of ten cases, it is the Judge, not the jury, that is corrected.

But secondly, the jury may have decided, that Abner Teague, although having a sufficiently sound mind, may have had his disposition to make a will unfairly influenced, so as to turn him from his own free will, which would amount to undue influence or a fraud.

But the court cannot perceive in the evidence, on this branch of the second ground taken for a new trial, any proof that can be fairly weighed against the first conclusion, that Abner Teague possessed a reasonable mind and sane memory.

If fraud be the predicate of a verdict which would take away the important privilege of making a last will, and, consequently,, making much property pass to other hands, while it derogates from the character of the chief legatee, surely such fraud should be made to appear from more perspicuous indices of undue influence or conduct; and such influence should be brought to bear against the true disposing mind of the testator in the matter and subject of his last will.

This is the point of attack and defence. It is not enough that there has been a general influence merely, which might, or might not, have been used fraudulently or unduly, and to which general influence so many men are habitually subject.

Power does not imply an undue application of it, nor individual confidence its own perversion. Such- abuses are to be first proved, and their undue influence be made to appear from evidence; which is what we think the case wants, in order to be supported on this last ground. Therefore, upon neither the ground of imbecility of understanding, nor that of undue influence practiced upon Abner Teague, can the verdict, setting aside his last will, be supported ; and a new trial is ordered unanimously.

O’Neall, and Evans, JJ. concurred.

Wardlaw, J.

I concur in the result.

Butler, J.

The ground upon which I consent to a new trial in this case is, that I am not altogether satisfied with the sufficiency of the instructions of the presiding Judge to the jury, on the question of undue influence. I know that this court cannot, either by precise definition or uniform description, say what is undue influence, so as to enable one judge to follow the suggestions of another. Each case will afford, however, an opportunity for the Judge to give useful information to the jury, of what should be regarded undue influence over the will of the testator; sometimes by negative explanation, and sometimes by more direct instruction. So far, at least, we would agree, that it must be a control intentionally exercised by one mind over the will of another, so as to deprive the latter of the free agency of option. Such as seducing the mind from its formed purposes by artful flattery; harrassing it into submission by continued and excessive importunity; or overcoming it by false information and improper menaces. The desire of the legatee modestly expressed, or habitual confidence, and even deference on the part of the testator, inspired by affectionate attention, j or general kindness of the favored legatee, would not be sufficient, unless they were addressed to a mind of unresisting imbecility that had lost the power of self-direction. In the latter view, a want of mental capacity would place the testator’s effects under the direction and disposition of the law.

In the. case before the court, such suggestions as the above, might well have been made to the jury, who may have confounded the general confidence of the lather, with an undue influence exercised over him by the wilful control of the son.  