
    General J. Hutton, Guardian, &c. against Hardin Blalock, and wife.
    Issue of devisajitvel non. Objections, that tes~ tatortvaa«o»co«pos, and liable to Bv'ldMceíSlh not conclusive, as to insanity, yet sufficient to show might been used, and be¡ngfeMysubmitted to the Jury, a”ain“tethefi“vuC the Court would disturb the verdict.
    This case came before the Circuit Court, by James Johnson, deceased. p ir* j i /n j p /-v -* • way or appeal irom the Court ot Ordinary, on J * L J 7 •an issue devisavit vel non, as to the estate of
    The deceased had made, and formally execu- ,, . ted, a last will and testament, and two questions 7 7 A arose out of the evidence:
    -vtti ¶ ti i hirst, YV hether the deceased was, or was 7 7 7 compos mentis, at the time of making the said last will and testament ? and,
    Second, Whether, admitting that he was not wholly so, the evidence did not justify the conclusion, there had been undue influence practised upon him in obtaining it ?
    The will devised and bequeathed to Catharine Calhoun, the grand-daughter of the deceased, almost the whole of his estate, real and personal, with a limitation over, in the event of her death, without issue, to the children of General Hutton, in exclusion of Mrs. Blalock, an only daughter, then living, and the children of Mrs. Brown, another daughter of the deceased, who died before him.
    The whole of the subscribing witnesses to the will, when before the Court of Ordinary, deposed, that the deceased was non compos at the time of the execution of the will; but as this ■was a trial de novo, they were all examined. Two of them still retained the same opinion, and the third, Alexander Calhoun, the father of Catharine Calhoun, the plaintiff was so equivocal, that no- • thing satisfactory was to be obtained from him. On the evidence of these witnesses alone, the Ordinary had rejected the probate of the will; and from that decision the present appeal was brought up. There was a great diversity of opinion among the witnesses; a considerable number of whom were sworn on the trial, as to the question of sanity, which were founded on the following facts: The deceased was upwards of an hundred years of age, and had, during a long life, been considered as possessing remarkable strength of mind, particularly on the subject of contracts; and well informed on religious subjects : but at this period, and sometime previous,had become childish and inconsistent; so much so, as to be, in a great measure, lost to the sense of shame; but when called to a particular subject, appeared to speak rationally, for the moment, but would digress, and go into childish and unappropriafce subjects and inquiries.
    On the question of undue influence, the following facts were in evidence: The deceased regarded General Hutton as the person in whom he could confide more than any other; he sent for him at the distance of sixty miles, and he attended, for the purpose of writing the will. He read it to him privately, and, upon being asked, by one of the subscribing witnesses, what the contents were, he said they were similar to one which he had before made, with some alterations, which were necessary, on account oí property acquired after its execution; and a former will, but whether the one alluded to or not, did not conclusively appear, w7as produced, which contained provisions very dissimilar to the present. Opposed to these circumstances were the facts, that the deceased had differed with his daughter, Mrs. BlalocTc, but it appeared to me upon an occasion that would not have justified the displeasure of a reasonable parent, and had determined to disinherit both her and the children of his other daughter, Mrs. Brown; and having determined on this course, there was no person so likely to succeed to his affection as General Hutton, as he had no other relations.
    In the charge to the J ury, I gave to them what 1 then and still think, was a correct exposition of the law on the points arising out of the case, and after correctly summing up the evidence, left it to them to apply it, and they found a verdict for the defendants.
   The opinion of the Court was delivered by

Mr. Justice Johnson.

A variety of grounds have been taken in support of a motion for a new trial in this case, but that which alone is considered important in the consideration of it at this time, is that which arises out of the facts stated, and amounts to no more than that the conclusion drawn by the Jury was incorrect, and not warranted by law; I feel it due to myself, however, to add, that many of the specific grounds stated in the brief are not warranted by fact.

The Court is of opinion that the motion for a new trial ought not to prevail. The evidence on the question of sanity, although inconclusive of itself, and rather tends to show the wreck or fragment of a vigorous mind, than such total deprivation of reason and discretion as to incapacitate the deceased from making a will; yet when coupled with the facts that tend to show that undue influence might have been used in obtaining it, and that upon a mind too feeble to resist the influence of artifice or persuasion, furnish sufficient reasons for not disturbing the verdict, especially as the facts were fairly submitted to them; and their verdict has had the effect of securing to the persons best entitled, in law and reason, to the estate of the deceased.

Colcock, JYott, and Cheves,• J. concurred.

Gantt and GrimJcé, J. dissented.  