
    John and William Heyward and others against Hazard and others.
    The vitm'Si-o? to a will aro called not only to attest the fact of signing, hut also to determine the capacity of the testator, that is, whether he was sane or insane, at the lime of executing such will,
    THIS was an action of trespass, to try titles to lands under the will of John Heyward, of Tick-Toxun, deceased, upon the issue of denis amt vel non, before a special jury at bar, by consent of parties.
    The will in this case contained two kinds of devises or bequests, viz. one of real estates, and the other of personal property.
    The probate of wills, or in other words, the trial of their validity as to personal chattels, belongs exclusively to the court of ordinary, which is governed by the ecclesiastical rales. But their validity as to lands, is only cognizable in the common law courts, by the principles of the common law, which considei’s them as a species of conveyance. For which reason, it was foreseen that it might so happen, that the court of ordinary might give a construction to it one way, and a court of common law a different construction; so that there might be contrary decisions on the same will, and upon the same point, in the different courts. To guard therefore, against this clashing of jurisdictions, it was mutually agreed upon by the parties interested, to try this question at once, by a special jury, at bar in Charleston, be*, fore the common law judges; where it was supposed it would receive a more solemn and full investigation, than before a single individual, the ordinary of Beaufort district, in which the whole estate lay.
    The cause came on the 6th and lasted till the 11th of March. All the judges present.
    The defence was the insanity of the testator.
    
    Holmes, in his opening, on behalf of the plaintiffs in the action, stated, that they claimed the lands in question under the last will and testament of John Heytvard, deceased, a near relation of the plaintiffs, dated the 8th of January, 1793. That the testator lived till the lgth of January, when he died. That in and by this will, he had left the bulk of his estate, consisting of lands and negroes to a very large amount, to John and William Heytvard of Tulifinny, two first cousins ; and to Mrs. Glover, wife of 'Wilson Glover, his sister, all plaintiffs in the action. That in December, 1791, the testator had made a prior will, in which he gave the bulk of his fortune to the defendant, Major Hazard., who was also a first cousin of the testator by the mother’s pide, and to Mrs. Glover, one of the parties in the present; suit. So that in fact, Glover and wife would be very little affected, which ever way the action terminated, as they could claim nearly to the same amount under either will. The real dispute then, he said, was between the two Hey-wards of Tulifmny, and Major Hazard; and this depended entirely upon the validity of the last will, the former will having been made when the testator’s insanity had not been called in question. He then stated that the three witnesses to the will were in court, ready to prove the execution of this last will, and the sanity of the testator at the time it was executed. But as some of the defendant’s witnesses, who had been subpoenahad not arrived, on. account of the badness of the weather, whereupon the case was adjourned to the day following.
    Friday, 7th March, As soon as the jurors were seated and called over, the cause was resumed, when Holmes called
    
      George Hinson, the first witness to the will, who, being sworn, said that he saw John Heyward,, of Tick-Town, sign the will produced and shewn him. That he subscribed his name to it, as a witness, in the presence of the testator ; at least, in the room where the testator was, and who might have seen him. He appeared to him to be then perfectly in his senses, as much so as he had known him to be for six years before. That William Skillings David Motte, Wilson Glover, and William Heyward, were all in the room at the same time. That when he, the witness, went into the room, he asked the deceased how he was, who answered, he was so ill he could not shake hands with him., being much swilled, but bid him to take a chair, and sit down. The de= ceased then said to him, he looked ill; he replied, and said he had been sick.
    Upon his cross-examination, he said, Mr. Heyward was in his senses when he signed his will, otherwise he would not have witnessed it. That the will appeared to have been written by Mr. Glover, who was the person who asked him if he would not sit up, and sign the paper. 'That he had not seen the deceased from the month of November, preceding, till the 8th of January, the day he witnessed the will; he lived four or five miles ofF ; he had been sent for, but did not know for what purpose. That, on the way to the deceased’s house, he met Mr. Malory Rivers, who had just left it : he asked how Mr. Heyward was ? he said he was better. When he went into the house, he found Mrs. Rivers at breakfast, who soon after went away. The will was signed about two hours afterwards. lie had seen him often intoxicated with liquor, but he had no appearance of it when he signed the will.
    
      
      William Skilling, another witness to the will, was sworn» He saw this will signed, and placed his name as a witness to it, in the room with Mr. Heyward, and where he might have seen him. < He appeared to be perfectly in his senses, otherwise he would not have witnessed it. The deceased said he began too near the seal, which obliged him to put the word “ jun” on the seal. (This appeared to be the case.)
    
    Upon this witness being cross-examined, he said, he iived'on a plantation of Mr. Thomas Heijzvard’’s, father of two of the plaintiffs, about the distance of one mile and a' half from the deceased’s. Mr. William Heyzvard sent for him the night before — went in the morning, very early— did not see the testator till he was called to witness the will. When he went., in the morning, Mrs. Rivers was there, but went away some time before he was asked up to see the will executed. The paper was not read to him ; he did not read it himself. The testator did not call it his will — only said he acknowledged it as his act and deed ; but verify believes Mr. Heyzvard_knew it to be his will. He thought it was his will. 'I hat Hinson, Motte, William Heyward, and Glover, were there when the will was signed.
    
      David Motte, the third witness to the will, said, that his name to the will was his hand-writing. That he saw John Heyzvard sign his name, and deliver it as his act and deed; and he subscribed it as a witness, on a half chest of drawers. That William Heyzvard offered to get a table for the witnesses to sign their names upon, but John Heyzvard., the testator, said there' wras no occasion — pointing to the half chest of drawers, said they might sign their names on that; That he was perfectly in his senses — had known him for eleven years before — had lived on the plantation ; and would not have witnessed the will, unless he had been convinced in his own mind he was in his senses. He wished very much for chocolate, and expressed his surprise that people did not bring that article up into the country for sale, which was much better than many articles they did bring up for sale.
    
      Upon his cross-examination, this witness said he lived on the plantation of the deceased, as a shoemaker and saddler • — had an account against the estate, for jobs done in both lines — had not seen him for a fortnight before he was sent for to witness this paper — did not wish to disturb him by going up stairs, having a wooden leg — never heard him raving for a fortnight before the will was made. He had frequently been intoxicated before his death ; particularly about Christmas he saw him raving about the plantation, in liquor. He was soon after taken sick, and never went about afterwards. He thought the paper to be Mr. Heyward's will, and verily believed Mr. Heyward knew it to he his will when he signed it.
    Here the direct testimony for the plaintiffs closed, the counsel observing, that they had other testimony to offer in reply to the defendants5 witnesses.
    
      Ford, in behalf of the defendants,
    stated, that under the plea of insanity, it was not altogether necessary to prove that the testator was entirely deranged at the time the deed was executed ; but if it appeared that, by long habits of intoxication, the mind was rendered unfit for so important a transaction as that of making a final arrangement of his worldly concerns, or if he was in that state of weakness that he was liable to be influenced by the importunities of those about him, it was sufficient to support the plea. That the evidence they were about to offer, was to that effect; and if it turned out as he was instructed it would, the defendants would unquestionably be entitled to a verdict.
    
      Major Jenkins was then called as a witness. He proved that he had been intimate with the deceased for some time before his death. That he had been frequently at his house in iroi 5 that he was often indisposed. That, during that year, he heard him speak often of Major Hazard,, and in warm terms of friendship for him. He sometimes spoke of getting his will made, and said he would made him a warm fellow yet. in if92 he was frequently at the house of the deceased ; that he was, in the course of the year, much indisposed, at which time Major Hazard was very attentive to him j and once, in particular, he got a fever by his attendance on the deceased, when he begged of him to go over and stay with his cousin, John. That the deceased, had, in the spring and summer of 1792, frequent fits of insanity, about the full and change of the moon ; but the witness did not think they were the effects of hard drinking. When he was in this deranged situation, he was easily persuaded to do any thing. His first will was made in December, 1791, when he was very well; but in 1792 he was much and often deranged in his mind. In the summer of 1792, at a time when he was in his senses, he told the witness he had made his will, and divided his estate between Major Hazard and Mrs. Glover, and was determined to give nothing to the Talijinny family, as his uncle, old Mr. Thomas Ileytvard, had used him very ill ; for which reason he was determined never to give them a shilling, while in his senses. In November, 1792, the deceased told him, he wished Major Hazard (who had removed some distance off) back in the neighbourhood again.
    Upon his cross-examination, he said, the deceased had been drunk for days together, but after these drinking frolics he frequently recovered again, and was perfectly in his senses. That November, 1792, was the last time he saw him.
    Doctor West, about a month before the testator died, said he saw him at his own house ; he was then entirely deranged, and it appeared to him to have been occasioned by hard drinking.
    
      Malory Rivers deposed, that he was a relation of the deceased — had an invitation to go and see him ; accordingly, his wife and himself went to his house, on Christmas day, 1792, and staid a fortnight. That on Christmas night Mr. Heyward got up, and was outrageous : sometimes he appeared reasonable, but again out of reason. That during the fortnight he was there, he was two days out of his bed. He often drank water for grog ; spirits were taken away from him. One morning he conceited he saw a number of men at the door, and made use of expressions which con-irinced him he was deranged. He struck a dozen blows against the wall, with his hands, thinking it was his man Ben whom he beat, and behaved in such a manner as convinced the witness he was out of his senses. He left the house of the deceased the day the will was signed j he was then better — bade him good-bye — did not think he was then in a situation to do business. He heard nothing about a will before he left the house — did not ask him to stay and see it signed, although he had mentioned his intention of going off. He met Hinson on the road after he had left the house. William Heyward went to the deceased’s house the second day after the witness went, and attended him till his death, and paid him all the attention of a kind friend, and kept him from liquor, and employed Dr. Houser to attend him.
    Mrs. Rivers went with her husband to see the deceased on Christmas day, 1 792 j stayed a fortnight; saw him drink water for grog, and play tricks, which induced her to think he was deranged. Saw him strike at a shadow against the wall. That the greatest part of the fortnight she was there, he was out of his senses, though he was sometimes in his senses ; she left the house the eighth of jfanuary, but heard nothing about a will 5 when she left him in the morning, he appeared to have an interval of reason. Upon the oath she had taken, she did not think he was in a situation proper to do business.
    Doctor Campbell, about six months before the testator’s death, heard him say he had made a will, and left his estate to Major Hazard and Mrs. Glover. He had fits occasionally, owing to hard drinking — once saw him in one j when he recovered from them, he was fit to make a will. He was accustomed to get drunk, and continue so for a fortnight or three weeks together.
    Dr. Pepper saw the testator on the 7th of December, 1792, at Black Swamps and heard him say the Tulijinny family should have nothing to do with his affairs. He made an agreement with him at that time, about some land.
    
      Doctor Bowers went to see the testator ou the 11th of January, 1793 ; he was very ill; Mr. Glover told him that WiDiam Heyxuard said he was out of his senses every five minutes. From the answers he gave them, he appeared to be out of his senses.
    
      Jacob Devaux heard the deceased say, about six months before liis death, he had made a will in favour of Major Hazard.
    
    At this stage of the cause, the first will made by the tes'tator in December, 1791, was produced.
    
      John Collmgton, a witness to it, was sworn, and proved the due execution of it. That the testator was perfectly in his senses when he made it ; he declared it to be his will. After it was witnessed by himself, together with Mr. Sal-tas and Mr. Gilbert, the testator folded it up and put it by. On the cross-examination of this witness, he said, that Major Hazard was at the house, but while the testator was executing the will, he went out .of the room.
    Mr. Saltas, one of the witnesses to the will, was sick, and did not attend.
    Mr. Gilbert, the other subscribing witness, proved the due execution of it, and confirmed what Collmgton said on the subject.
    The will was then read ; after which, Pinckney, one of the counsel for the defendants, informed the court, that he here closed the testimony on the part of the defendants.
    Saturday, March 8th. The cause resumed.
    
      Rutledge, for the plaintiffs,
    in reply, stated, that they had several witnesses to examine, whose evidence would take off the force of what had been given in evidence by some of the witnesses for the defendants ; as well as several letters to produce, which were written by the testator, from the 12th of August, 1791, till the 3d of December, 1792, all which would shew, that although at times the testator might have been deranged by hard drinking, yet at other times he was perfectly in his senses, and as fit to do business as am ocher man.
    Mr. Qjickly was then called and. sworn. He said he went to see the testator on the 1st of January, 1793; went up stabs inio his room, conversed with him about eighteen, half barrels oí rice, which were to be put on board Captain Tucker's vessel, for Charleston ; but he said he had thought of taking them down in his own boat himself; he was perfectly in his senses. Saw him again on the lOch of January, and he was as perfectly in his senses as he had ever known him to be. He had lived with him for some time as an overseer. He inquired about his plantations, and the witness gave an account of them to him. He drank hard, and was apt to be deranged or flighty, but he would again recover his senses.
    Sundry letters written by the testator in the summer of 1792, were then produced and read, and they all appeared to be sensible, well written letters ; and two as late as the 3d of December, 1792, one to Captain Tucker, and the other to Ball Es? Minot. In the letter to Captain Tucker, he Informed him he would have a parcel of rice ready to send to Charleston by the 18th of the month. And in the letter to Ball &f Minot, his factors, he advised them of it also, and desired them to get some articles from Mr. E-wing, and send them up to him. Captain Tucker’s deposition corroborated the above facts ; and further, that he had frequent fits of intoxication, but would recover again.
    Dr. Baron attended him in the spring of 1792, he was very ill, staid at his uncle Thomas Heyward’s house, where he was taken great care of. He was sometimes out of his senses, and at other times again perfectly sensible ; so much so, that he would have no hesitation in witnessing his will, if he had been called upon for that purpose.
    
      John Witchard was In the testator’s employ, saw him the last of December, 1792, he inquired about his plantations, and gave him some directions about one particularly, from which the negroes had been removed, and said some person should be left there to take care of the buildings ; he then appeared to be perfectly in his senses. Mrs. Rivers came to his house on the 8th of January ; (the day the will was signed ;) he inquired of her how Mr. Heyward was, she answered he was much better and perfectly in his senses. He sometimes had drunken fits, but would recover again.
    Mrs. Witchard. Mrs. Rivers paid her a visit on the StTl of January," 1793 ; she inquired how Mr. Heyward was ; she, Mrs. Rivers, said he was much better, and perfectly in his. senses ; adding, that he was so brave, that she believed they were about making a will. She said she met Hinson going there.
    
      Robert Ewing’s deposition was read, in which he said Mr. Rivers told him that Mr. Heyward was perfectly in his senses on the morning of the day the will was signed. That he said so several times, and that he, Rivers, believed the will 'would hold good.
    
      Etving Richardson deposed, that he heard Mr. Rivers tell Mr. Adam Ewing that Mr. Heyward was in his senses the morning, he left him.
    
      Adam Etving proved that Rivers told him the testator was in his senses the day he left him. The witness asked what day it was ; he replied it must have been the day the will was signed, as he met a young man going, there who was a witness to it.
    Mr. Russel confirmed Mr. Ewing’s testimony.
    
      Thomas Heyward, the testator’s uncle, saw his nephew on the 4th of January, 1793 ; he was in bed, but was sensible ; he was so much so, as to be able to transact business, for he called to see whether he could pay his son a sum of money he had advanced for him. He said he had sent 170 barrels of rice to town, but he ordered the proceeds to be paid to Colonel Skirving, who had been a very indulgent creditor towards him. The witness saw Mrs. Rivers there ; his nephew said there was some troublesome company there : he mentioned it to Mrs. Rivers, who got into a violent passion about it. He saw him again on the 10th of January; he was then in a good state of mind, and entertained hopes of recovery ; he was able to sit up in a chair. He saw him again on the 11th, and in the morning of the 12th of January, 1793, and he appeared at ihose times to be sensible. Indeed, he said, all the fits he ever had, proceeded from hard drinking.
    Here the evidence closed on both sides.
    Harper, for the plaintiffs,
    then proceeded to observe to the jury, that the only question for their consideration was, whether the testator was insane or not at the time the will was made. That a man generally insane, if he has lucid intervals, may make a will, and it shall be deemed good. That where there is a contrariety of evidence, it is to be presumed in favour of sanity. (Orphan!s Legacy, page 24.) That reasonable dispositions to men’s nearest friends and connections, ought to be supported ; but if given to strangers, were very suspicious. That in this case, the estate was given to his nearest friends and relations; though others were unnoticed. That the plaintiffs were very near relations, and stood in equal degree with the defendant, Major Hazard. In the first will, the two Heywards were unnoticed. Why ? Because the testator, when that will was made, did not think proper to give them any thing $ but the will would not have been less valid on that account, if the latter one had not been made. In the latter will, Major Hazard, probably, for the very same reason, unfortunately was passed over unnoticed in his turn. The moment of signing the will is the time to which the attention of the witnesses is drawn ; not what was his state of mind at any time before. 4 Burn. Eccl. Laza, 90. That is the critical moment. Supposing the witnesses then honest men, how little need they know about it. They need not know it was a will; • they need not be together. A paper-folded up and signed, but the hand and seal acknowledged., was deemed a good will. 4 Burn. 83.
    
      
      Monday,, March 10th. The case resumed.
    
      Ford, for the defendants.
    The time of making a will is very different from the time of execution. In all probability, this will was drawn several days before the day of its execution. The cutting off Major Hazard, without leaving him a shilling, is strong evidence of insanity, after having, so short a time before, left him the bulk of his fortune. A testator ought to have judgment, to discern and know what he is about: to be able to answer questions alone, is not sufficient. Mary Winchester’s case, S Co. Rep. 4 Burn. 4a. Ibid. 90. The office of a witness, when he comes into a chamber, is to inspect and judge of the testator’s sanity. And if it is even doubtful, they ought to refuse to witness it. For which purpose they ought to have an opportunity of judging, which no man can well do, who is only just called upon the spur of the occasion. If, therefore, the witnesses have not had an opportunity of judging, the jury-are to judge of the sanity, from all the circumstances. The witnesses in this case had not been long enough about the testator, to form a competent judgment of his situation and state of mind. It does not even appear that the testator knew it was a will; it was not read to him ; he did not read it himself. The physician who attended him was the most proper person to judge of his sanity; he ought to have been produced as the best evidence on such an occasion. From the whole tenor of the testator’s conduct, and from the length of time he had been indisposed, it is not to be presumed that he could have sufficiently recovered, so as to be capable of doing so important an act as making a will; though he might have been able to attend to common concerns.
    
      Holmes, for the plaintiffs.
    All that the law makes requisite, has been complied with on the present occasion. Every man is to be presumed of sound mind, and insanity must be proved. A drunken man is considered as a madman, and incapable of making a will while drunk; but when he beepmes sober, he is to all intents and purposes capable. 4 Burn. 46. The reading of a will is not necessary, unless ip a blind person. 1 he witnesses, by law, are to attest the sanity of the testator; and in this case, they all agree on that point. But even if one had differed from the other two, it would have been good. Burn, 70. 74. It was not necessary that the witnesses should know it was a will.
    Tuesday, March ilth.
    
      Pringle. The meaning of non compos, implies a total deprivation of reason ; drunkenness, only a temporary madness ; it is the lowest state or degree of it. A will made in that state is not good ; but if a man gets sober and returns to a proper state of mind, it is valid. 3 Áth. 173. 2 Hawk. 2 Burn. 181. The witnesses are therefore called upon by the statute to try the testator’s sanity. Poiv. Dev. 68. In the present case, the witnesses to the will are very positive on this head, and their testimony has been corroborated by a great number of other witnesses, who are equally positive. Whereas, the witnesses for the defendants are only negative, and that too only circumstantially so. The only witnesses for the defendants, who speak of the insanity of the testator, at the time of his last sickness, are Mr. and Mrs. Rivers; but they have made declarations to divers persons, which invalidate considerably what they gave in evidence on this trial. For it is a rule of law, that what a witness has been heard to say at another time, may be given in evidence to invalidate his testimony in court. Loft. 279. The two Heywards had assisted the testator with money at a time when he was distressed ; and it is highly probable that was the true reason why he preferred them in the disposition of his estate to Major Hazard. No formal declaration of a will is necessary; a delivery as a deed is sufficient. 8 Vin. 124.
    Pinckney, for the defendant.
    The sanity of the testator is the principal point to which the attention of the witnesses is called by the statute. Where a testator never was insane, soundness of mind is ever presumed i but where he has once been insane, sanity must be proved. 3 P. Wms. 93a ® ^lis barely being able to answer questions is not sufficient; be must be in his perfect senses, and of r ’ sound disposing mind and memory. Swynb. 77. 82. 112. Publication of a will is essential, not a mere formal part. Pow. 68.
    
    
      Rutledge concluded by observing, that it was the province of the jury to judge of the credibility of the witnesses ; that of the zvitnesses to judge of the sanity of the testator. That wills differed very much .from common deeds on this very account; for one or two witnesses to a deed, was good ; but with respect to lands, not less than three were necessary to a will, for the purpose of viewing the situation of the testator, inspecting into his state of mind, and guarding against frauds and impositions. That it was impossible for the jury in this case, to judge of the state of the testator’s mind, except from the mouths of the witnesses examined. They Were not present to see and observe him; the witnesses were ; and if they believed the witnesses to the will, they were bound to find a verdict for the plaintiffs. Every thing therefore, depended on the credibility of these witnesses : and nothing had been offered in the course of the cause, to impeach or call their credibility in question, and they had no interest at stake upon the issue or final event of it.
   Waties, J.

being nearly connected with Mr. Glover, one of the plaintiffs in the action, declined giving an opinion.

Burke, J,

mentioned, that in his opinion there were such Strong circumstances of insanity about the testator, and had been for some time before this will was signed, that it made it extremely questionable in his mind, whether it merited the sanction of a court and jury or not. That it was difficult to conceive why a man in his perfect senses, who possessed so high a regard and esteem for another as the testator seems to have had for Major Hazard, should, in so short a time, without any difference or quarrel, or any ma - terial change of circumstances, alter his mind so much as to have totally forgotten his old friend and relation. He thought there was no other way to account for it but by insanity, or a want of sufficient energy in the mind of the testator, to resist the effects of influence, in a weak, debilitated state, both of mind and body. But as this depended on matters of fact very proper for the consideration of the jury, he left it with them to determine as they in their consciences thought proper.

Powell on Devises, 69, 70.

Ibid. 71.

Ibid. 69. 3 Will. 95.

Rutledge, Ch. J. Grimice, J. and Bay, J.

were of one opinion on this occasion, and delivered their opinions seria-tim to the jury. They were to the following effect, viz. That the statute of frauds, which was the pattern for wills for lands, at this day, required “ that all devises of lands M should be in writing, signed by the party himself, (or 54 some other, by his directions,) and attested and subscribed a by three or four credible witnesses at least, in the testa-‘x tor’s presence, otherwise to be null and void.” It is evident, therefore, that by this act there are four essential requisites: First, the will should be in writing; for no parol devise will convey lands, as it will goods and chattels. Secondly, it should be subscribed by the party, (or some other, by his direction.) If a man cannot write, or is disabled, another may sign it for him, by his direction. The third requisite is the attestation. The true construction of law under this head, had always been, that the act called the attention of the witnesses to the situation of the testator himself ; and this particularly relates to his sanity. The wxtnesses are not called upon by the act to attest the mere factum of signing, but the capacity of the testator. The business, then, of the persons required by the statute to be present at executing a will, is not barely to attest the corporal act of signing, but to iry, judge, and determine, whe ther the testator is compos to sign ; that is, of a sound as every will, upon the face of it, imports. And uPon every controversy, the heir at law, or other persr*lnteresi> ed, has a right to a proof of sanity from ever on" Bl ^iero whom the statute has placed around the testator. There is no other security but the witnesses, and their integrity. The acknowledgment of the hand and seal of the testator is sufficient, without saying it is his last will and testament, as no particular form of publication is prescribed by the act. The fourth and last requisite is the subscription of the signatures 5 and this must be by all the witnesses, in the presence of the testator, or within view of the testator, where he might see if he pleased, as going into a gallery or adjoining room with the door open, or the like. Notwithstanding all these guards, however, this evidence is not uncontrollable when insanity is alleged ; and it is upon this ground the courts of law have permitted the heir at law (or other person, who is materially to be affected by the will) to examine other witnesses, against the attestation of the subscribing witnesses, upon the point of insanity. All the witnesses examined for the defendant were evidently intended to establish that point, against the testimony of the three witnesses to the will; and it is for the jury, ultimately, to determine on which side the weight of evidence lies. They have proved, beyond all contradiction, as, indeed, the witnesses for the plaintiffs have also done, that the testator was subject to fits of insanity, by hard drinking, some time before his death. But, on the other hand again, they all prove, also, that after these fits were over he returned again to his senses, and was perfectly in his reason. Upon this point the law is clear, that in cases of insanity, brought on by the visitation of God, or by acts of indiscretion, as drunkenness, &c. if the party has what the law calls lucid intervals, that is a proper return of his rational faculties, he may make a will. As, therefore, almost all the witnesses, on both sides, prove that he was occasionally deranged, it will be for the jury to determine whether this latter will was xecuted at a time when he had one of these lucid intervals or St. Upon the whole, however, it appears that the weighi^f tes|;imony js greatly in favour of the plaintiffs. The thro. witnesses to the will, all swear positively that was perfe<,qy jn senses the day it was signed ; and there is nothing to impeach, in the least, their credibility, excepting the evidence of Mr. and Mrs. Rivers, which is, no doubt, invalidated by the declarations they made to several persons, on the day the will was signed, that the testator was much better, and in his senses.

Powell, 81. S Tin. 125.

Powell, 90.

«id. 712.

The cause was then submitted to the jury, who found a verdict for the plaintiffs, with a shilling damages, so as to establish the will.  