
    C. & W. J. Peeples, Exors, vs. Elmira Smith and Others.
    Though the circuit judge improperly admitted evidence of the good character of the plaintiffs, a new trial was refused, because the evidence could have had no effect on the verdict.
    An appeal from the ordinary upon a question of admitting a will to probate, must be tried de novo, and the appellants may take grounds not taken before the ordinary.
    After the jury had been fully instructed, the circuit judge was asked to give further instructions upon questions of fact, which he declined to do. New trial refused.
    Where it is competent to give a conversation in evidence, the testimony of a by-stander who overheard it, is not secondary evidence. It is not necessary to call a witness who was engaged in the conversation.
    Where the objecion to the probate of a will is, that it had been revoked by writing, the jury in finding a verdict establishing the will may also find “ against the revocation.”
    BEFORE O’NEAL, J. AT UNION, EXTRA, FALL TERM, 1854.
    The report of bis Honor, tbe presiding Judge, is as follows,
    “ This was an appeal from the decision of the Ordinary, refusing to admit to probate the will of George L. Smith, dated 23d of March, 1854, on the ground, that it was revoked, by a writing dated 13th April, 1854, signed by the testator, in the presence of three credible witnesses, who in his"presence duly subscribed the same.
    “ The grounds set out in the suggestion of the executors, the appellants, were, 1st, that the will was duly executed by the testator and was valid; 2d, that the paper set up as a revocation was void, on account that the said George L. Smith had not sufficient capacity to execute the same; 3d, that it was procured to be executed by Dr. Harriss, the attending physician on the deceased, and others, by undue influence; 4th, that the same was procured by fraud and imposition generally.
    
      The appellees pleaded that the will was obtained by undue influence of the executors, and also of a negro woman, Nance, and that they, and more particularly the negro, prevented the revocation by burning, and generally traversed the grounds assumed by the appellants. Issue was joined.
    “ I state the grounds of the pleas of the appellees, as I gathered them from their being read to me : and I may not, therefore, state them literally,- and the appellees, can,: if they desire, bring up copies.
    “ It is difficult to report the case under the twenty-one grounds of appeals, most of which are mere garbled or supposed extracts from my comments oh the facts.' ■ Such grounds are, I know, utterly unavailable; still I do- not like to have it supposed that absurdities, such as are therein imputed to me, ever occurred. I, hence, shall have to state the case more- at length than I desired.
    “To avoid stating a mass of testimony, which will be of no avail, I will endeavor to state concisely the case as brought out by the proof.
    “ The will was executed on the 23d of March, 1854, in the presence of McKisick, the clerk, J. B. Young, and Dr. Harriss, all of whom concurred in saying that the testator was of sound mind. This was not questioned by the appellees. It was prepared by McKisick, from a draft written by W. J. Peeples; the testator declared it, the will, as executed, was his will for the last twenty or twenty-two years.
    “ The testator was a very aged man, eighty-three or eighty-four years old; he had been sick for some time. The executors, the Peeples, his grandsons, children of a deceased daughter, lived in Georgia-; they were lawyers. ■ The will gave to them,-their sister and another brother, the whole of his estate. There were three other children of their mother not mentioned in it. So the children of John Smith, George Smith, and of Isaac Smith, deceased children of the testator, were not provided for. He had no children surviving him. His reasons for not giving to the other grand-children, were stated by different witnesses, as follows: Elmira Smith, the only daughter and child of Isaac Smith, he had provided for in 1846, in a will nearly identical with the present, except as to the provision for Elmira, and for his wife, who had since died, he stated that she had an illegitimate child by her step-father, and therefore, he not only refused to give her anything, but also refused to permit her to come and see him. George Smith, he said, had shot at him, and beat him, and John Smith he had helped by assisting him to pay for a ne‘gro-, and that he had not treated him well.
    
      “ On Thursday, 13th April, he executed the revocation in the presence of Dr. Harriss, Messrs.. Spencer and Phillips, all of whom concurred in saying that he was then of sound mind; though Dr. Harriss' stated he “ did not know whether the testator understood the revocation.” This was read to me as Dr. Harriss’ testimony,, before the Ordinary: (he was not present at the trial.). There was nothing said about the testator not understanding the words “ chose in action, used in the revocation. Spencer and Philips both said they would not have made a trade with him at that time; and Spencer said he was not able to do common business.- He died on Sunday night, the 16th of April. His situation, as described by his nearest neighbor, Mrs. Young, was that he was unable to lift his head from the pillow; that he had to be fed with a spoon; that he was clearly out of his senses on Wednesday evening — pretty much so on Thursday and Saturday evenings, though not so bad.
    “ The will did not meet with Dr. Harriss’ approbation. He told the deceased, the December before its execution, if his grandfather was to make such a will he would disown him. The testator said his grand-children had already done that. In reply to Mr. John B. Young’s observation, that he thought the testator was about to break the will, Dr. Harriss said “any one who would make such a will ought to go to hell.”
    
      “After the will was executed, McKisiek took it borne and sealed it up. Tbe testator asked Harriss to get it and bring it to him, which he did; he gave it to him, and he gave it to Nance, his usual house-servant and favorite, and directed her to put it away. On Saturday evening before the revocation, he wished the will, as he said, to burn it; he sent for Nance, before she had time to come, he dispatched another messenger, and finally, Dr. Harriss. She said when she came, she had burnt it; he said that was a lie, he had given no such orders. He was then suffering great agony from his eye, which had bursted; he was cursing and swearing; he ordered her whipped. Mr. Young gave her a few stripes; his negroes, at -his request, were all called in; when they came in he did not even notice them. On Monday morning, Dr. Harriss severely whipped Nance to make her produce the will; she averred that she had burnt it. He, Dr. Harriss, searched the trunk, in a chest at the head of the testator’s bed, for the will, it was not found, though it was stated both by Harriss and Young, that the ' search was slight. W. J. Peeples arrived the evening of the day on the night of which the testator died. The keys of the chest and trunk were surrendered to him. The next evening, after the burial, he returned alone to the house for a few minutes. The next morning, examining the papers of the deceased, he found at the very bottom of the trunk, the will, in the leg of an old soelc. Dr. Harriss procured Mr. Arthur to write the revocation the day of the execution; the testator asked him if he had the paper; he said he had left it home — if he wished to execute it in the presence of witnesses he would go for it. The testator said he did. Testator inquired who should be the witnesses; after some talk, the Doctor suggested Mr. Spencer and Mr. Phillips — they each lived a mile and a half off, but they were not intimate friends and associates of the deceased. They were sent for by .the testator; before they came, and while Dr. Harriss was there waiting for them, John B. Young, a witness to the will, and John Humphries, the testator’s step-son-in-law, were present; Nothing was said ■ to them about the revocation. When the witnesses came, Dr. Harriss suggested that he was in a hurry, (he had been there an hour and a half,) told the testator to state his reasons ; he accordingly said he had become dissatisfied with his will, he desired to make his grand-children equal; the law made a better will than he could make. Harriss asked if he should read the paper. He "might read it if he chose;” “he did not care mpch about it,” was the testator’s reply. The testator asked Mr. Spencer to take care of it until he called for it. The day of the burial of the deceased, [Monday,] Dr. Harris called on Spencer, desired him to bring the revocation to Union, where he would meet him. This was done, and Harriss inquired of a lawyer what he should do with it.
    Dr. Gage was requested by one of the executors, Cincinatus Peeples, to attend to his grand father; he accordingly did. He saw him 19th, 21st, 23d March, in company with Dr. Harriss; he was . again to meet Dr. Harriss on the 26th; the latter- did not- attend.- They agreed on the 23d, if deceased got worse [he was then apparently better] Dr. Harriss was to let Dr. Gage know. He, however, gave no such information. There was a great deal of proof as to testator’s situation and capacity from the 23d of March to his death; there was no doubt that he was often in the exercise of his proper senses ; it was also- plain from the testimony, that he was also often in a very doubtful state. He continued to inquire impatiently for his grand-son and his executors until his death; he said, on one occasion in the presence of Dr. Harriss, that if they were to receive a letter giving an account of his death, they would be soon there, to which Dr. Harriss replied, “Yes.”
    “ To Mrs. Frances Myers on Tuesday before the revocation, he stated how his will was: [he stated the exact provisions,] he told her this had been his will for twenty years. They were trying, he said, to get him to make another will; if they did, be wanted her to see it blown to tbe clouds, be was not, be said, to be led by tbe nose.
    “ On Sunday morning preceding bis death, John C. Young stated be found tbe testator quarrelling with his woman, Harriet; be wanted her to go to Dr. Harriss’ for a paper; he said be was afraid be would not treat him right about it; she did not go; another, Mary, promised to go that evening ; he seemed to be satisfied. Mary Jane Trammel proved, that on tbe same day, tbe deceased applied to her sister, Wealthy Trammel, and asked her “ if she would go to Dr. Harriss’ and get a paper, which they brought there for him to sign; he was dying, and wanted to destroy it before he died, for he had made his will, which he intended to be his will.’ Her sister, Wealthy Trammel, was in court; the appellants did not examine her.
    “ Col. B. Johnson, as well as other witnesses, states the character of the appellants to be good. He said he saw them when in Georgia, sometime ago, and they asked him to invite the deceased for them to come to Georgia, and let them take care of him. He delivered the message; the deceased said they were sharpers, and smart men, and he did not intend they should have his property in his lifetime. Dr. Harriss was proved to be a man of good character.
    “I have stated the case generally,-and as particularly as seems to be necessary. I will now, however, look to the grounds of appeal, and if anything is omitted, supply it.
    “ It is true I admitted evidence of the general good character of the appellants; they were charged as being guilty of a fraud in procuring the will to be executed; and one of them, W. J. Peeples, particularly, in slipping the will into -the trunk, after the testator’s death. It therefore seemed to me, according to the rule, their characters were in issue, when they were charged with -a. fraud. The testimony, however, as the case turned out, was wholly unimportant, for there was not a tittle of proof to charge them with fraud in procuring the will.
    
      “ I did hold, that the appellants might, by their appeal, make the question whether the testator was of sound mind at the execution of the alleged revocation. That it was, in this point of view, perfectly immaterial, whether they made the question before the Ordinary or not. The grounds of appeal filed with the ordinary, corresponded, however, with the suggestion.
    “ In my charge to the jffry, I was very f articular to tell them, that it was my duty to s'um up the facts; if in doing so, they discovered my opinion, it ought to have no influence on them, further than it accorded with their own opinions of the facts. They, not I, were to .decide on the evidence. I studiously endeavored, in commenting on the evidence, to give the views of which it was susceptible, in favor of both parties ; and I think no one knew what was my opinion of how the case should result., The right to make a will, was, I told the jury, a very sacred right.
    “ The fourth ground is a perfect absurdity. I admitted evidence to show that the testator was dissatisfied with the revocation, and gave it the effect to show, that it was not the understood, voluntary act of the testator. The same kind of evidence was previously received, at the instance of the appellees against the will, and to show it was properly revoked.
    “ I submitted to the -jury the question of the competency of the testator at the execution of the revocation, and turned the jury’s attention to the testimony denying or affirming it.
    “ The sixth ground is an entire mistake. I made no such remark on Col. Johnson’s testimony the words “ the wanderings of an insane mind,” were applied to conversations with other witnesses after the revocation^ and not to the conversation with him. I said, I believe, of this conversation with Col. Johnson, that it was probably the result of a cautious, jealous old man, determined to hold the staff, his property, in his own hands till his death.
    
      “ In commenting on the manner of the execution of the revocation, I said to the jury, that the fact that John B. Young, a near neighbor, a witness to the will, and John Humphries, the testator’s step-son-in-law, both of whom were present at the testator’s house, while Dr. Harriss was waiting to have the revocation executed, were not called as witnesses, and that Spencer and Phillips, who were comparative strangers, were called, might be considered by the jury, and they mightynfer, that there was therefore something wrong in the revocation. To this I opposed the explanation, that the witnesses, Spencer and Phillips, had been sent for, and the jury were told, this might remove the ground of suspicion.
    
      “ In stating the grounds against the revocation, arising out of the alleged improper conduct of Dr. Harriss, I mentioned to the jury the fact, that he did not inform Dr. Gage, that the testator had become- worse, as he had promised to do so. I know nothing of his reasons for not doing so; he was examined before the Ordinary, and did not state them. His statements to Dr. Gage, why he did not meet him on the 26th, was objected to as inadmissible, and excluded.
    “ I gave no such charge as mentioned in the ninth ground. But I supposed, that the will was placed in the' trunk, in the old sock, by the woman, Nance, according to the directions of the testator ; this I said to the jury. Eor one of the witnesses proved, that the testator, shortly before his death, inquired about the will, and his servant Jim said to him, it was in the trunk, in the chest, at the head of the bed. The testator seemed to be therewith content. There was no proof that W. J. Peeples ever saw the will, till he found it in the trunk. He went from John B. Young’s, after the burial, to the house of the deceased. Mr. Young proposed to go with him ; he said it was unnecessary, it was a very short distance; he was going to lock up the house, and would be back in a few minutes. He was not gone half an hour.
    
      11 The tenth ground goes a great deal farther than I did. I told the jury, that Dr. Gage’s testimony, as to the capacity of the testator, was one of tbe circumstances to wbicb they might refer. I thought there was no ground to reject his testimony; he had seen the deceased the 19th, 21st, 23d, 26th March, and knew his situation; he had heard the description of his condition, when the revocation was executed, and, as a scientific man, might well say he could not have been as competent on the 13th of April as on the 23d March.
    ■ “ The eleventh ground is another perversion. It is true, I said to the jury, that it was plain Harriss took an active part in the revocation, but the appellees had the full benefit in opposition to it of the facts, that the testator might have directed, and, according to some of the proof, did direct Hai’riss to obtain it, and that Harriss proved that he had used no influences, and' that all which he did was according to the testator’s directions. If these were believed, the jury were told there was nothing wrong in Harriss taking an active part.
    ■ “ The twelfth ground is also another mistake. The testator’s reasons for - refusing to provide for Elmira, the children of George and John, were stated.- The appellees had the full benefit of his after statements, such, as that ‘ his little grandchildren were fluttering all around him.’
    “ The charge to the jury, on the thirteenth ground, was, that if the deceased did not understand the act-which he did, it would not bind him. ■ The jury were referred to Dr. Harriss’ statement, ‘ he did not know whether the testator understood the revocation or not.’' I am not aware of any proof that Harriss referred to the term chose in action.
    ' “ The fourteenth and fifteenth grounds can be judged by the proof already reported.
    
      “ Upon the sixteenth ground, I have to remark that I had fully charged the jury on every point; they had been permitted to walk out before they retired to their room. Mr. Thomson asked for additional instructions, which I thought very improper under the circumstances. The Court of Appeals will see from the ground how utterly frivolous they were, especially after I bad passed over and commented fully on • tbe very matters. On tbe seventeenth ground, I have only to remark, that tbe jury were to judge, and have decided in that particular.
    “ Tbe eighteenth ground has surely no pretence to be a legal ground. Between the proof of two living witnesses, was it ever before heard, that the court was to decide which was the best ? ...
    
      “ The nineteenth ground is true. I refused to permit the verdict to be amended ; the issues were: Was the will valid? Was the revocation legally and properly executed ? The Ordinary had decided that the revocation was valid. The verdict, as a matter of course, must decide, whether the revocation was valid.or not. It is true, a finding for the will might have done, but when it went further, and found against the revocation, it only made the matter more certain.
    
      “ The testimony of Sarah Humphries taken before the Ordinary, mentioned in the 20th ground, was objected to being read by the appellants. They denied any agreement to that effect. She was in the district, and not at court. I could not, under such circumstances, order it read.
    “ The twenty-first ground is the usual flourish with which an appeal concludes and needs no remark from me. The jury found for the will and against the revocation; and I fully concur in their conclusion.”
    The defendants appealed, and now moved this Court for a new trial on the grounds, viz:
    1. Because his Honor admitted evidence of the good character of the plaintiffs.
    2. Because his Honor held and ruled that, the executors, though they had not made any question as to the capacity of the testator at the date of the revocation (April 18, 1854,) on the trial before the Ordinary, which defendants might assume as true, still they could do so now, wifcb all the legal advantages they could have, had they done so, in which it is submitted, there is error; inasmuch as this Court has only appellate jurisdiction, and his Honor should have charged -that no allegation of incapacity being made before the Ordinary, was a tacit admission of testator’s capacity.
    3. Because his Honor dwelt at great length upon the sacred right of making a will, (which defendants admit) without adverting to the fact that the execution of the revocation, was the highest exercise of that right.
    4. Because his Honor admitted parol evidence to revoke the revocation, and in his charge gave full effect to that evidence.
    5. Because his Honor charged the jury that they might well conclude the testator incompetent at the date of the revocation, when the proof was that he was competent down to the day of his death, as proved by plaintiff’s witnesses and others.
    6. Because his Honor charged that the testator’s conversation with B. Johnson, in 1852, might well be regarded as the “wanderings of an insane mind,” though made at a period when there was no charge or pretence of incapacity.
    7. Because his Honor charged that the jury might well infer there was something wrong in the revocation, because the Youngs were not called as witnesses, and that Spenser and Phillips were comparative strangers to testator; when the proof was otherwise, and that the Youngs were not present, and Spenser and Phillips were sent for by testator, they being near neighbors.
    8. Because his Honor charged that Harriss having failed to meet Dr. Gage at testator’s, by appointment, when he had in fact met him twice, and was prevented from meeting him the third time by professional engagements, as Harriss informed Gage, which his Honor would not /permit the witness to tell; in all which it is submitted there is error.
    9. Because his Honor charged that the testator might well have put the will in the trunk, when the proof showed he could not have done so; and, in fact, it must have been put there by W. J. Peeples after testator’s death, as appears by the evidence.
    10. Because his Honor charged that Dr. Gage’s opinion of the capacity of testator,- on the 13th April, was important testimony; when the fact was, Gage had not seen testator after -the 26th March, and his opinion was incompetent evidence, which was, objected to.
    11. Because his Honor said to the jury “ he had no doubt Harriss took an active part in the revocation,” when Harriss swore he had not used any influence, and had done nothing but what he was requested to do by testator, and there was no proof to the contrary.
    12. Because his Honor charged the jury that the testator was angry with his children till his death; when the proof was that he became reconciled, and said “ he could not punish the children for the acts of the parents;’ ’ and was even reconciled to Nance.
    13. Because his Honor charged — that because Dr. Harriss said “ he did not know whether testator understood the revocation or not,” the jury might infer that testator was incompetent,-when the proof was that Harris referred to the term “ choses in action,” and that the legal presumption and proof was that testator did understand the legal effect of the paper.
    
      14. Because the will of the -23d March was obtained by flattery, importunity, and undue influence, and was in fact and in law revoked prior to tbe 13th April, 1854, by being fraudulently kept out of testator’s possession, contrary to his will and wishes, often expressed, as he clearly desired to destroy the same.
    15. Because the revocation of the 13th April, 1854, was duly and legally executed by a competent testator, and could » not be revoked by parol.
    16; Because his Honor refused, when requested by defendant’s counsel, to hear suggestions as . to points on which they wished the jury to be instructed, and which had not been adverted to in the charge; among others, they wished him to instruct the jury that if Harriss meant by saying, “ he did not know whether testator understood the revocation or not,” that testator did not understand the term “choses'in action,” bub knew the legal effect of 'the paper, then it did not affect the validity of the revocation; and also as to the sacred right of making wills.
    17. Because Dr. Harriss had done nothing that was legally improper, or that could affect the validity of his testimony.
    18. Because his Honor admitted the testimony of Mary Jane Trammel, as to the conversation between Wealthy Trammel and testator, which was secondary evidence — Wealthy Trammel being in Court.
    19. Because his Honor refused to .allow the verdict to be amended -by .striking out the words “ and' against the. revoca-, tion,”Inasmuch.as that paper had not. been propounded for probate, and had only been used as evidence. ' ■
    20. Because his Honor refused to allow the testimony of Sarah Humphries, as taken before the Ordinary, to be read as defendant’s counsel understood it was to be read.
    21. Because the verdict was contrary to law and evidence, and should be set aside.
    
      Arthur, Thomson, for the motion.
    
      Dawhins, Herndon, contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case, I propose to examine in a very summary way, such of the grounds as present any legal question. On the first ground it may be remarked, that a majority of the Court think that the admission of proof of the appellants’ good character does not come within the exception pointed out in Dawkins vs. Gault, 5 Rich. 151. But as in Smets vs. Plunkett, 1 Strob. 372, we all agree that it would not have had any effect on the verdict, and, in this point of view, it would be extreme fastidiousness to order a new trial for such an error.

The second ground of appeal presents no difficulty. For the appellants had the right to make any grounds which they pleased, to test the decision of the Ordinary. When such grounds were filed with the Ordinary, and the suggestion to the Court of Common Pleas, corresponding therewith, presented to the appellees the issues, in fact, on the same, and they pleaded, thereto, I do not perceive how it can be disputed, that according to the Act of 1839, the case should be tried anew. That is, as I understand, it is tried as a new ease.

But in point of fact, the Ordinary did decide on the very question now made the subject of dispute. For he had to decide before he could give effect to the paper called a revocation, that the testator was of sane mind; and it is perfectly immaterial, therefore, even if the case now was a strict appeal from his decision, whether the appellants made, on the hearing before him, that as a distinct objection or not.

The fourth ground when explained, as it is by the report, requires very little comment here. Beyond all doubt, a will, or a writing revoking a will, cannot be legally revoked by parol proof. But that was not the purpose for which the evidence was given. It was offered, and received, to show that the revocation was not the free, voluntary, understood act of the testator. When so understood, there can be no room to dispute the competency of the proof.

The 3d, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 18th, 14th 15th, 17th, 20th, and 21st grounds require nothing further to be said of them, than that they are exceptions to the Judge’s remarks on the facts, as he submitted them to the jury, and were either mistakes of the counsel who drew them, or were so separated from the context of the charge as to give them an improper impression. When explained, as they are by the report, they require no further vindication.

The 16 th ground claims a right, which, when properly presented, would never be denied. If the attorney for the appellees, who made this claim on the circuit, had, before the charge commenced, asked for specific instructions on particular points of law, then, if they had not been given, and there were any such legal questions properly to be decided, and the appellees suffered any injury from the instructions not being given, it would be a ground for a new trial. But after a Judge has passed over the entire case, and the jury are in the act of retiring, I am far from believing that an attorney, who may not like the remarks of the Judge upon the faets, has the right to ask for further instructions. It is worthy of remark here, that this case goes even beyond that. For the jury had not only been fully instructed, but had been permitted, before retiring t<3 their room, to leave the court room; it was on their return, that these additional instructions on mere difference of views as to facts were asked. It was, as the Judge supposed, then too late to ask for any suck thing. This was, however, an appeal to the discretion of the Judge below; that it was exercised properly this Court does not doubt.

The 18th ground is a strange mistake as to law. Two living witnesses hear the same words uttered by a man: one is called and sworn, and the party chooses to rest on that, and not call the other; there can be do doubt that there is no question about the competency of the testimony thus given. If the words were uttered to the one not sworn, it does not affect legally the testimony of the other. It may be a matter affecting the credit which the jury may give to the proof. But between the witnesses there is no such distinction as “ the lest and next lest.”

On the 19th ground, I have only to say, that there must be some strange misunderstanding of the issues before the Ordinary and this Court, on the part of the learned counsel for the appeal to this Court. The revocation was as much propounded for probate to the Ordinary, as the will. It is true, it was'set up to defeat the will: but to have that effect, it was necessary it should be proved, and allowed. It was accordingly both proved to the satisfaction of the Ordinary, and also allowed by him. The appeal from his decision made it a part of the issue before the Court. It was, therefore, in every respect, proper that the jury, in establishing the will, should find against the revocation. We are therefore of opinion that the verdict required no amendment.

The motion is dismissed.

Wardlaw, Whitner, Glover, and Munro, JJ., concurred.

Withers, J., absent from sickness in his family.

Motion dismissed.  