
    John McKnight, Executor, vs. George S. Wright and Sarah E. Wright.
    
      Wills — Prolate—Proof of Contents — Capacity.
    Where a will is offered for probate by the person who drew it, and who takes a large interest under it, if it appears that the capacity of the testator was weak, and other circumstances of suspicion are shown, there must be strong and satisfactory evidence, beyond the mere proof of execution, that the testator knew the contents of the will, and approved of them.
    'BEFORE MUNRO, J., AT YORK, SPRING TERM, 1859.
    The report of his Honor, the presiding-Judge, is as follows:
    “ This was an appeal from the Ordinary, admitting to probate the will of George Wright, deceased. The will is as follows:
    “In the name of God, amen. I, George Wright, being of sound and disposing mind and memory, and being weak in body, and calling to mind the uncertainty of life, and being desirous to arrange the property with which God has blessed me with, I do ordain this my last will,’in the manner following, viz.: I bequeath to my. son, Robert Wright, my six negroes with their increase; also, my plantation and mill, with all the stock of which I may be possessed at my decease; and it is my will that McClelland Wright, Leander Wright and Emily Wright,, have a support on said plantation during the life of Robert Wright.
    “ And it is my will that after the death of Robert Wright, that, all the property that is, both real and personal, shall be at the disposal and management of John McKnight.
    
      “And I do nominate John McKnight my executor, of this my last, will and testament.
    “GEOBGE WEIGHT, [l. s.]
    {1 Signed, sealed, and subscribed, as and ) for my last will, in presence of us. j
    “ John M. Brtson, ^
    “Bobert M‘Cleaye, v Nov. 7,1855.
    “ John McFadden. )
    “ Probate in common form, 5th January, 1858.
    “The testator departed this life on the day of May, 1857, leaving four children surviving him, all of whom are named in the will. The appellants are his grandchildren, whose father, Philander Wright, predeceased the testator, and have-appealed from the decree of the Ordinary, on the following grounds:
    
      “First. Because the testator being very old and infirm, over eighty-four years of age, and said will being in the handwriting of the executor, who takes a large interest under the same, and there being no proof of instructions, or that the will was read over to the testator, the same was therefore null and void.
    
      “Second. Because the testator had no sufficient legal capacity to make and execute a legal and valid will at the date of said will.
    “ Third. Because said will was procured to be made by fraud, flattery, and undue influence.
    “The will was proved to be in the handwriting of the executor, McKnight, and on the 7th of November, 1855, the day on which it purports to bear date, it was signed by the testator in the presence of the three subscribing witnesses, all of whom attested it in the testator’s presence, and in the presence of each other.
    “ The several questions arising under the foregoing grounds of appeal, were submitted to the jury with instructions, to which no exception was taken, who returned a verdict, declaring the paper propounded not to be the last will and testament of George Wright.
    Testimony for the Appellees.
    
      “ 1. John M. Brison — The first subscribing witness, testified that he saw the testator sign the paper exhibited as his will, and subscribed his name as a witness thereto in the testator’s presence, and in the presence of the other two subscribing witnesses.
    “ Gross-examined. — The will was not read over in witness’ presence, nor did the testator say it had been read over to him ; he thinks the will is in the handwriting of McKnight ; he knows nothing, to the contrary, but that he was of sound mind'; supposes Jestator to have been between seventy and" eighty years of age, and appeared infirm; heard nothing said about instructions. Testator left four children; they are deaf and dumb; two of them are nearly blind; the eyesight of the other two is not good. Saw nothing different about testator to what he had seen on former occasions; was there but a short time, not more than half an hour.
    “After subscribing the will, witness paid testator some money for a horse he had purchased from him. Testator handed it to McKnight to count it for him, which he did, and handed it back to him, saying it was all right.
    “ Testator’s son Leander can hoe and plough; Robert is nearly blind, and incapable of attending to any business. Robert is the eldest.
    
      “Re-examined. — McKnight said to testator, come and sign the paper. Witness understood it to be his will; it was two or three weeks previous to this that witness had bought a horse from him; old man got the best of the trade; horse proved to be diseased, although witness don’t think testator knew it.
    
      “ 2. Robert McOleave — The second subscribing witness, saw • the testator sign his will, and witness attested it in his, and in the presence of the other attesting witnesses. Witness thought him competent at the time. Testator said it was his will.
    
      “Gross-examined. — Will was not read over; witness had little or no conversation with testator; witness judged of his competency by his actions; witness had not seen him for some time previous; he was old and infirm, but not more so than men of his age. Testator’s wife died a year or two before him ; she was quite a business woman ; she attended to a good deal of his business; after her death, he attended to it himself. Thinks Leander more competent to attend to business than Eobert.
    
      “Re-easamined. — McKnight attended to testator’s business abroad; all the subscribing witnesses were near neighbors of testator.
    “ 3. JohnMcFadden — The third attesting witness. Witness signed it in the presence of the testator, and of the other attesting witnesses ; testator appeared to know what he was about; he invited witness in to sign it.
    “ Cross-examined. — Witness had no conversation with testator as he recollects ; witness judged from his conduct, and from inviting him in, that he was competent; was only there about half an hour; Brison handed him some money on payment of a horse; he handed it to McKnight; thinks a free negro living with testator came for him to witness the will; handwriting of the body of’ will resembles McKnight’s Occasionally saw testator previous to this, and conversed with him not long before. Leander is more competent than Robert ; the former can see better than the rest; Robert more competent to manage money. Testator’s mind was good enough for men of bis age.
    “ Has known Leander to borrow money; he has more mind than Robert.
    “ 4. Here a paper was introduced, purporting to be a declaration of trust, executed by John McKnight, and bearing date the 22d September, 1858.
    “South Carolina, York District.
    “Whereas George Wright, now deceased, in his last will and testament, dated gave the estate of which he died seized and possessed to his son Robert, for and during his lifetime, charged with the support and maintenance of his sister Emily and her two brothers, McClellen and Leander, and from and after the death of said Robert, empowered me to dispose of said estate as I saw proper. Now by virtue of said power, and in consideration of the same, I hereby acknowledge myself to stand seized of said estate, and possessed thereof, for the uses and purposes set forth in said will, for and during the lifetime of said Robert Wright, and after his death for the use and benefit of said McClellen Wright, Leander Wright and Emily Wright, or such of them as may be living at the death of said Robert Wright, for and during his, her or their lives, the said estate to be appropriated to their comfortable support and maintenance as far as the same will go. And I hereby expressly declare that the power of disposition given to me in said will, will not be exercised in favor of myself or my heirs. Witness my hand and seal. September 22, 1858.
    “Signed) JOHN McKNIGHT. “Wit. G. W. Williams.
    
      
      “5. Boss, Bsq. — Ordinary. Witness decreed in favor of the ■will; the evidence taken before the Ordinary was on the 23d August, 1858. The instrument executed by McKnight was filed before witness made his decree sustaining the will.
    
      “ Gross-examined'. — Witness come to the conclusion not to sustain the will, unless McKnight relinquished all interest under it; this witness communicated to Gr. W. Williams, Esq., before he made his decree. Here the actor closed.
    Testimony in behalf of Appellants.
    “ 1-. Thomas Williams. — Witness lived about a mile from Testator, and visited him frequently. From the year 1855 to his death, his mind was rather scattering ; he was the rise of eighty years old; was weak and infirm in body, especially the latter part of his life. In 1855 would doubt if he had mind enough to make a will. McKnight said, when McKnight went to draw his will, he enquired of testator how he was going to draw it. Testator replied, I will make it (or leave it) all to Leander. McKnight replied, don’t leave it to him, but leave it to Bob, as Leander may spend it; testator then directed it all to be left to Robert; thinks if any difference between Leander and Robert, it is in favor of the former. Robert is nearly an idiot; formerly he could hoe a little, but recently he has done nothing ; he is nearly blind, and gets worse every year; Leander not capable of managing property as well as others of his age. The property might be safer in Robert’s hands, as no one would trade with him. Testator was weak-minded and could be influenced by any one in whom he had confidence; thinks McKinght had influence over him. Testator generally transacted his own business, although he had not much to transact. Don’t know if his memory had failed him; but was in the habit of repeating the same thing over and over. His wife had great influence over him, and in trading, generally went along; when he got angry she could do nothing with him. He appeared to have affection for his children; also for his grandchildren, especially when they lived with him. Appellants are Philander Wright’s children; they have no property whatever. Witness was at testator’s funeral; some one enquired of McKnight how testator had disposed of his property; he replied, it was all left to Robert, and at his death at his (McKnight’s) disposal. The will was not present at the time.
    “ Gross-examined. — Testator generally traded safely; did not trade much. In 1855, testator knew all his property and his children. Testator paid more money for his son Philander than would amount to his share of his estate. He was security for Philander to a large amount, and upon one occasion, had to sell eight or nine of his negroes to pay it. Philander’s widow has again married since his death. Considered testator an obstinate man. McKnight is a respectable man.
    
      11 Re-examined. — In 1855, regarded testator’s capacity as doubtful. Don’t know the degree of capacity necessary to make a will.
    “ 2: Moses Lindsay. — Witness lived about a mile from testator, and was frequently at his house; his mind was not as good at times as it was at others; on some occasions his mind did not appear exactly right; his mind would dwell on some particular subject, and when witness would suggest something calculated to divert his mind from it, he.would get right back to the same subject, and continue repeating it over and over; at other times when he was well, his mind appeared good for one of his age; physically, he was weak and bent; don’t know that he was easily swayed; he was pretty firm when lie took a stand; be appeared doubtful of tbe condition of bis own mind. Upon one occasion be said, be wanted Judge Eoss to draw bis will, and .wanted witness to accompany bim to York for that purpose; be said, “ Moses, I don’t believe I can make a will myself, I want you to go and help me.” He appeared attached to bis own children, also to Pbilander’s — tbe latter have no property. When be was well, witness thought be bad capacity to make bis will; when not well, witness thought it doubtful.
    
      “ Cross-examined. — A few days after making his will, be told witness be bad settled all bis business; at that time be knew all bis property, and was reasonable enough. He (tbe testator) thought that neither Leander nor Eobert was fit to manage property ; bis reasons were, that Leander could get about and spend it. Eobert could not. Witness thought so too.
    “ 3. Moses McCleave. — Witness lived about a half a mile from testator; was a frequent visitor at bis bouse. One evening in tbe fall of 1855, testator remarked, that be bad made bis will but was not satisfied. Witness inquired in what respect be was dissatisfied with it; he replied, I have not made any provision for Pbilander’s children. He said, “ I have sent for Jack — meaning McKnight — but be won’t come to me; you know your Aunt Betsey — meaning bis wife — did something. for them while she lived, and I want to do something for them also.” Late in tbe fall of 1855, found bis mind scattering and flying from one subject to another; bis body was weak and infirm, so that be could scarcely walk; don’t know that bis wife exercised more authority than she ought tee have done. Leander is more competent- than Eobert; best to trade or traffic; neither one competent; tbe latter not competent at all to take care of property. Testator attached to both bis own and bis grand-children.
    
      
      Cross-examined. — Never knew testator guilty of a foolish act or speech; he died in 1857 ; knew very well what property and what children he had ; was as competent as most men to know the value of his property. At the time witness conversed with him in the summer of 1855, he was as sensible as he ever was; it was the last conversation witness had with him, that he expressed himself dissatisfied with the will; it was after the will was made; at that time witness thought him perfectly competent; he would repeat the same thing over and over. This is what witness means, by saying his mind was waveringhe had involved himself considerably for Philander; don’t think any of his children competent to manage property ; witness advised him to get some one else to draw his will.
    
      “Re-examined. — Was late in the fall or winter, witness found his mind wavering.
    
      “ 4. William Burris. — After testator’s death, McKnigbt was at witness’ house, when witness’ wife enquired of him, if uncle George had made any alteration in his will; he replied that he had, that he had left the property to Eobert; that uncle George had intended to leave it to Leander, but that he had told testator to leave it to Robert, because Leander would spend h. McKnigbt spoke of paying a bill for testator in which there were many articles got by Leander’s wife, which he thought extravagant; and understood Eobert had been substituted in the will for Leander.
    
      “5. Robert Me Cleave. — Heard testator say, he was dissatisfied with his will; he wanted to leave a part of his property to Philander’s children, but that McKnight had objected to it. _
    
      “ Cross-examined. — He said McKnight’s objection was that Philander had already spent his share of the estate ; testator said it was true. This conversation was in January, 1857; he appeared then to be in his right mind ; he died in May, 1857.
    “ lie-examined. — He was lame and bent for about a year or two before his death.
    “In Beply — Hugh Burris — In the fall of 1855, (November) witness purchased from testator nine negroes, for which he paid three thousand dollars ; witness considered him perfectly competent to make a contract.
    “ Gross-examined. — McKnight was there to fix the business after witness and testator were done trading; it was with the testator alone that witness traded. The negroes consisted of two women and their children, the oldest of the latter seven or eight years old.”
    The defendant appealed, and now moved this Court for a new trial, on the grounds:
    1. Because George Wright had sufficient capacity to execute the paper propounded as his will, and was of sound and disposing mind when the same was executed.
    2. Because no undue or fraudulent influence was used, to procure George Wright to execute said paper as his last will and testament.
    8. Because there was sufficient and satisfactory evidence that the testator knew the contents of the paper signed by him as his will.
    4. Because it having been clearly established that said testator was of undoubted capacity when said paper was executed, no proof of instructions or reading over of the will was required or necessary.
    5. Because John McKnight, the executor, took no interest or estate under said will — a power is alone given to him to manage and dispose of said property after the death of Eobert Wright, and it is submitted that by virtue of said power, he could not make disposition of the property amongst any other persons than Leander Wright, Mac Wright and Emily Wright.
    6. Because the contestants of said will have no interest in the estate of George Wright, and if said will was set aside, would get no part or share,of said estate.
    
      G. W. Williams, for appellant.
    1. Testator knew his estate,, the object of his affections, and to whom he wished to give his property. There was no proof of any foolish act or speech. Old age did not deprive him of the capacity of making a will. See 1 Williams on Executors, 33; Kirhwood vs. Gordon, 7 Eich., 474.
    See testimony of John M. Brison, Eobert McOleve and John McEadden, subscribing witnesses. Also, of Hugh Brison. The witnesses on the part of the. appellees, viz.: Thomas Williams, Moses Lindsay and Moses McOleve, all say testator knew his property, its value, his children, &c.
    2. There was no proof of undue or fraudulent influence over the testator. The influence to vitiate an act must amount to force and coercion, destroying free agency; it must not be the influence of affection and attachment. It is not unlawful for a man by honest intercession and persuasion . to procure a will in favor of himself or another person; neither is it to induce the testator by fair and flattering speeches. 1 Williams on Executors, 39, 40; Means 
      vs. Means, 6 Rich., 21; Farr vs. Thompson, Executor, Cheves, 46.
    The only influence proved against McKnight was that he persuaded the testator to leave no property to the children of his son Philander, and to give his property to Robert, instead of Leander, as he had intended. He gave his reasons for his advice, the testator admitted their force and yielded his assent. Such influence was not undue, but lawful and proper.
    3. It was not proved the testator was of unsound mind. If he had been of doubtful capacity, it was not absolutely necessary to sustain the will, to offer proof of its being read over, or of previous instructions. It was only necessary to show he knew the contents of the paper. This was done by circumstantial proof of various kinds. The executor was shown to be of good character; the witnesses were the nearest neighbors of testator, and of respectability; testator requested them to sign the paper, and said it was his will. On various occasions afterwards, he spoke of a part of the contents of the will, and of provisions not in it, but which he desired to have inserted, showing knowledge of the contents of .the paper, and that he either had read the will or heard it read; he could read. The will is all in the same handwriting. He was under a higher moral obligation to provide for his own children than his grand-children. The fact that he has provided for them as natural affection and moral duty' demanded, shows that the paper contains his will. The executor is left a mere trustee, to manage the property for the children. McNinch vs. Charles, 2 Rich, 230.
    4. The testator being of sound mind when the paper was executed, the law presumes his knowledge of the contents, from the mere fact of its execution. There was no proof to destroy the presumption in this case, but much to support it.
    The will was simple, not complex. The testator could read, and there is no proof he did not read the will. There is no proof tbe will was not left with him, and the presumption is, it was. Fraud is not to be presumed. The executor was proved to be an upright, honest man. Jarman on Wills, 44; Harrison vs. Rowan, 3 Wash., C. 0. 580, 4, 5.
    5. It is submitted, that under the will, testator has given bis property substantially, to his four children, to be managed by Robert AMright during his lifetime, and after his death, by John McKnight, and that no beneficial interest whatever in the property is given to said McKnight. His interest p.nder the will being so slight, the most stringent and satisfactory proof of fraud and undue influence, is required to set aside the will. The paper executed by McKnight, since testator’s death, shows his understanding of the power conferred on him by the will.
    6. If the will were set 'aside, before the contestants could receive a share of the estate, they would have to account for the advancements, to their father, Philander Wright; such advancements, it was proved, exceeded his share, or that of his children. (See testimony of Thomas Williams and Robert McOleve.) This shows the will is just in its provisions ; that if it was set aside the property would go to the very persons who now have it, and that this litigation and contest are waged without purpose and object, save to impute fraud to the executor, &c., without proof of it, and to cast reproach on the testator for simply doing his duty. Testator never intended his grand-children to have any part of the property he died possessed of, and they never will get any share of it, whether his will be established or set aside.
    
      Smith, Wilson, contra.
   The opinion of the Court was delivered by

Glover, J.

A valid testamentary disposition of property must be the voluntary act of a capable testator performed according to prescribed statutory regulations. Substantially, these requirements have been complied with by the deceased in the paper propounded for probate. The subscribing witnesses proved the execution of it, and the testator’s capacity; and their opinion is entitled to consideration, as the law imposes upon them not only the duty to attest the signing, but requires that they shall be satisfied of the testator’s disposing memory before they attest. Tt is manifest that, from age, his body, was infirm and his understanding impaired, but he had not survived the exercise of those powers which enabled him to comprehend the act he was performing. A non sane memory means actual incapacity, and such a disability does not depend upon degrees of intelligence, or upon any well defined condition of the mind; which may be greatly impaired by time or disease, and yet retain sufficient strength to make a testamentary disposition of property. Admitting the capacity, it is contended that the testator’s mind was feeble from extreme old age, and consequently, less able to resist the illegal influence which might be employed to control him; — that for the natural objects of his bounty, whose ’ claims were strongly pressed by their misfortunes, he made. but a small provision — while a large benefit is secured to a stranger, who wrote, and as executor, propounds the will for probate; and that under these circumstances some evidence of the knowledge of the contents should have been offered, besides the signing and attestation.

Where a will is drawn by one deriving a large benefit under it, the law requires that the proof shall not only show the act of signing but a knowledge of the contents, (Paske vs. Ollatt, (2 Phill. 323.) and that where the capacity is doubtful there must be proof of instructions or reading over. (Billinghurst vs. Vickers, 1 Phill. 193.) This rule as was said in McNinch vs. Charles, (2 Rich. 229,) is not exclusive and universal, but, in its application, is modified by the circumstances of each particular case. Referring to this class of cases, Dr. Lushington says: “ The doctrine is, that proof of the knowledge of the contents may be given in any form; that the degree of proof depends on the circumstances of each case; that in perfect capacity knowledge of contents may be presumed, but that when the capacity is weakened, and the benefit to the drawer of the will is large, the presumption is weaker, the suspicion is stronger; the proof must be more stringent and the Court must be satisfied of a knowledge of the contents beyond the proof of execution. I have always understood the doctrine to be that, in case of suspicion (which, depends upon all the circumstances of the case,) the proof is to be in proportion to the degree of suspicion.” Durnell vs. Corfield, 1 Robertson, Ecc. 51.) Every rule that has been adopted is intended to aid the Court and Jury in ascertaining if the will is the act of a capable testator, subject to no influence controlling his free agency. In this case the testator was more than eighty years of age — infirm and feeble in body and mind — reposing great confidence in John McKnight who wrote the will and who is appointed the executor — and to whom he leaves the disposal and management of all his property, after the death of Robert. Soon after the making "" of the will he expressed dissatisfaction because no provision had been made for his grand-children, and he said he had sent for 'John McKnight, who would not come. Add to this the small provision made for his helpless and dependent children, and do not these circumstances create such suspicion in regard to the freedom of disposition, as requires proof of a knowledge of the contents beyond the mere signing and attestation? The testator left four children and two grandchildren — the former deaf, dumb and partially blind, and all poor. Their very infirmities were additional claims upon a fathér’s care and bounty, and yet the only provision he. has made for them is a support during the life of his son Robert, after whose death the disposal and management of all his property is given to John McKnight, who wrote the will and is appointed the executor. Whether the words “ at his disposal and management ” gives an absolute interest or a life estate with an unrestrained power annexed, it is not material to inquire He has that dominion over the property which enables him to control its final disposition ; and although one or all of the children should survive Robert, they could no longer claim even a support under their father’s will. The evidence does not furnish a satisfactory foundation for the presumption that the testator knew the contents of his will. His declarations do not show a conformity between its provisions and his intention and wishes expressed before and after its execution. His purpose was to leave his property to Leander, but at the suggestion of McKnight, Robert was substituted — manifesting a ready acquiescence in McKnight’s advice — his grand-children are omitted, and a strong desire is expressed to provide for them — in all his conversations the objects of his bounty are his children and grand-children; yet the final dominion of his property is given to a stranger of whom he never spoke as a beneficiary in connexion with his will. If we add to this a feeble capacity without any proof of instructions or reading over or possession of the will, it becomes the duty of the chief devisee and legatee who drew the will to furnish more satisfactory evidence of a knowledge of the contents than the fact of execution.

The verdict of the jury shows that the evidence did not satisfy them that the testator knew the contents of the will and approved it, and we perceive no reason to doubt the correctness of their conclusion.

The case of Hobby et al. vs. Bobo & Dean, executors, referred to in the argument is unlike the principal case. The testator Burrell Bobo produced the will when it was executed, examined it “leaf by leaf,” inserted the day and month, declared that it was his will, directed it to be put in an envelope and sealed, and after Ms death it was deposited with the Ordinary with the seals unbroken. In the absence of the more usual and conclusive evidence of instructions and reading over, these facts were enough to satisfy a jury that the testator knew the contents.

Motion dismissed.

O’Neall, Wabdlaw and Munbo, JJ., concurred.

Motion dismissed. 
      
       Tlie following is tlie opinion of tlie Court of Appeals in tlie ease of Hobby vs. Bobo, delivered at Columbia, May Term, 1832, by
      O’NealIi, J. This case falls within the rule laid down in Keller vs. Atkins, at the last Term, and a new trial must be ordered. In sending the ease bach it is desirable to so present the questions involved in it to the Circuit Court, as to avoid the necessity of another adjudication here.
      
        As is said in tlie ease of Tomkins vs. Tomkins, 1 Bail. 93, “if a man possess sufficient mind to transact tlie common business of life, there is no question but that he may make a will.” It is often difficult to say whether this capacity exists at the time the will is executed. The general legal presumption is that every person is capable : the want of capacity either generally, or at the time of execution is to be shown by the parties contesting a will. In this ease the plaintiffs on the appeal from the Ordinary have failed to show anything like a general want of capacity before the execution of the will; and at and after it the evidence of a capacity to transact the common business of life is abundant. There was, therefore, no ground on this part of the case, either in law or fact, to authorize the verdict.
      It has been urged in favor of the verdict that if a legatee write the will, that it is an inflexible rule of law that to sustain it there must be proof of instructions, or that the will was read to or by the testator. The rule is too broadly stated. If a legatee write a will, by which-he takes a legacy, and the testator be in common health, and capable of reading or understanding it, and he formally executes it, the legal presumption is not against the will on account of its being written and prepared by one who takes a benefit from it. The presumption is, in such a case, in favor of the will. Bor in the language of my brother Johnson in Tomkins vs. Tomkins, “The usual and almost the only mode in which assent to a writing is manifested is by subscribing it, and in the absence of any other proof, that would be sufficient evidence of assent to a will as well as to any written contract.” In the case of Billingshurst vs. Vickers, 1 Phill. 193, the rule is stated by Sir John Nicholl tobe “ that when the capacity is doubtful at the time of execution, there must be proof of instructions or reading over.” In such a case he remarks that, ‘1 the presumption also is strong against an act to be done by the agency of the party benefitted; the act is not actually defeated as it was by the civil law, provided the intention can he fairly deduced from other circumstances.” Taking the rule and the qualification together, the result is that in a case where the testator is of doubtful capacity, it resolves itself into the question of fact, did the testator at the time he executed the will, know the nature and contents of the paper which he executed? If he does, it is good, no matter by whom it may be written, for we have the assent of his mind to the paper prepared as and for his will, in the fact of execution. That the inquiry which I have stated is the true one is apparent from the manner in which Sir John Nieholl propounds the matter to be considered in the case of Billingshurst vs. Vickers. He says, “ now in this case was the deceased’s capacity so alive as to prevent him from executing an instrument of the contents of whioh he was not aware ? Or was lie so languid and reduced as to acquiesce in whatever might be proposed?” His argument proves that the negative of the first and the affirmative of the last question was true, and therefore he enforced the rule without qualification, and refused to admit that part of the will to probate which was written by Billinghurst. In Tomkins vs. Tomkins, the proof was that the testator neither read, nor heard read, that part of the will which disposed of the residue of his estate; it was, therefore, necessary to supply this want of knowledge of its contents by proof of instructions, and showing that the will was in conformity to them. But, if in that case, the testator had had the will in his possession long enough to have read it, and the case had rested on the presumption of his knowledge of its contents from the fact of execution, I have no hesitation in saying, that the will must have been sirstained. In Warley vs. Warley, decided at this place, May Term, 1828, Judge Nott, who delivered the opinion, said, “But I cannot suppose that it will ever be held as law, that a will executed by a person in good health, not in contemplation of a speedy dissolution, of sound and vigorous understanding, and in the full possession of all his faculties must necessarily be considered void, because the instructions were given by a person interested in it, and because there is no evidence that it was read over by the testator. I do not know that any extraordinary suspicion ought to attach itself to the execution of a will more than to any other instrument of writing. And it is unreasonable to suppose that a man of ordinary understanding, who was acquainted with business, would put his hand to any paper by wliich he was to be bound, or in which he was materially interested without knowing the contents.” These explanations of the rule and its application will enable the court and jury properly to pass on this part of the case. According to the proof, the testator was not of doubtful capacity, he had the will in his possession, he examined it page by page, dated and executed it by signing, sealing and making a formal publication. With such facts before us, it would be monstrous to conclude from the fact that it was written by the principal legatee, that therefore the testator did not know the nature and contents of the paper which he executed as his will.
      The will is strangely prepared, the writing of each devise or bequest on a distinct page, is unusual, but furnishes no evidence of fraud in itself. It was I suppose thus prepared, to gratify the whim of a capricious and eccentric man. It was said that it was evident from the face of the will, that the residuary clause had been added to the bequest in favor of Joel Dean and Simpson Bobo, after the execution of the will. But on comparing the whole writing of the two parts of the bequest together, it is manifest that it was written with the same pen and ink and most probably at the same’time.
      If, however, the fact be'that the will from the time it was executed, until it was delivered to the Ordinary, remained in the envelope in which Col. Martin placed it, at the time it was executed, with the seals unbrokep, it is impossible that there could have been any fraudulent alteration. This fact was, we think, fully proved by Mr. Trimmier, who proved that he received it sealed up, and that he believed the word “sealed” written across the seals was in the handwriting of Col. Martin.
      The motion for a new trial is granted.
      Johnson and Habpek, JJ., concurred.
     