
    JOHN DERR and others against JOHN McGINNIS and others.
    
    Where a person of weak intellect, (though then competent) made a will, giving- the bulk of his estate by a residuary clause to his children equally, which was made known to them and concurred in by them all, and after-wards some of them took conveyances of a part of the residuary fund, thus destroying the equality of division provided in the will, on a bill to set aside these conveyances on the ground of mental infirmity in the donor, it was Held that the onus of establishing tlio donor’s sanity devolved upon these donees.
    Cause removed from the Court of Equity of Gaston County.
    George Entledge made bis will in (he year 1850, in which, after providing for his wife, ho bequeaths as follows: “ Also, I give to my three grand children, Yalentine Derr’s children, John, Louisa and Lavirah, the twelfth part of my estate, to he equally divided between said children. My will and desire is, that the residue of my estate he equally divided and paid over to my seven children in equal proportion, share and share alike to them, and each of their executors, administrators and assigns.” The plaintiffs are the children of Yalentine Derr, and two of the children of the testator, and as such, are entitled to residuary shares, given in the will. The disposition made in the residuary clause of this will, was known to all the parlies interested in it, and had their concurrence.
    After this will was made, to wit, in 1853, the testator made a voluntary gift by deed, of a valuable slave called Eliza to the defendant, John McGinnis, one of the sons-in-law who, in the right of his wife, was interested to the amount of one seventh part in the residuary bequest above stated. About the same time, the testatoi-, voluntarily and without consideration, surrendered to Eli Linebarger, another of his sons-in-law, in like manner interested in this residuary fund, a note on him for $175; and about the same time he surrendered to Rufus Beaty, another son-in-law, also interested in the residuary fund, voluntarily, and without consideration, a note which he held on him (Beaty) for $200, thus diminishing the residuary fund by the amount of the value of the slave, Eliza, and the two notes, and giving these sons-in-law a preference to these amounts.
    John McGinnis, above mentioned, and Robert Rutledge, are the executors appointed in the will of George Rutledge, and they both qualified, and are made parties defendant, as such.
    The bill alleges that shortly after the testator, George Rutledge, made his will, he lost his intellect, and that in 1853, when he made the deed of gift of the slave to McGinnis, and surrendered the notes to Linebarger and Beaty, he was unable to understand the nature of these transactions, and that- he was fraudulently prevailed upon by McGinnis, Linebarger and Beaty, to do the acts severally above complained of. The prayer is, that the said slave, Eliza, may be held by the said McGinnis, not for his own use, but for the benefit of the residuary fund in the hands of the executor, and that Linebarger and Beaty re-deliver the said notes for the like purpose, and that the whole fund, thus re-instated, may be divided by the executors in the proportions set out in the testator’s will; and that the executors otherwise account, &c.
    
      The defendants answer, and insist that the donations to them were free and voluntary, and on their part there was no unfairness or fraud ; they insist also, that the testator was entirely competent in point of intellect to do these acts. Eeplication, commissions and proofs.
    Cause set down for hearing and sent to this Court.
    
      Bynum and Guión for the plaintiff
    Thompson, lander and Avery, for the defendants.
   Pearson, J.

The donor, who was a very old man, and whose faculties wore evidently impaired to some extent, had disposed of his estate by his will, and therein provided for a fair and equal division among his children, who were then living, and the children of his deceased child. This “family settlement,” as it may be termed, was at the time, concurred in by all of the members of the family; consequently, any alteration which was afterwards made, having the effect to defeat this equality of division, must be looked upon, by this Court, with suspicion ; and the onus of proving entire fairness on the part of McGinniss and Linebarger, at whose instance the deed of gift, mentioned in the pleadings was executed, and tlic notes of Linebarger and Beaty were surrendered up and cancelled, and also, that the donor had sufficient mental capacity to understand that the deed of gift and the surrender of the notes defeated, fro tanto, the equality of division provided for by the will, is upon the parties who procured these acts to be done.

After full examination of the pleadings and proofs, we are satisfied that no unfair means were resorted to, or used, and the only question is, did the donor, at the time he executed the deed of gift and surrendered the potes, have sufficient mental capacity to understand that these acts defeated the equality ox division which lie had provided for by his will, and gave to McGinnis, Linebarger and Beaty, a preference to the value of the property given to them over and above his other sons-in-law and children. In respect to this question, owing to the very loose and defective manner in which the depositions are taken, we are unable to arrive at a satisfactory conclusion. We therefore direct that the following issues be submitted to a jury by the Superior Court of Law, for the County of Gaston, to wit:

1. Was George Rutledge, at the time he executed the deed of gift, and caused the notes to be surrendered as mentioned in the pleadings, of sound mind?

2. Did George Rutledge, at the time he executed the deed of gift, and caused the notes to be surrendered, have sufficient mental capacity to understand that the deed of gift, and the surrender of the notes, would have the effect of defeating the equality of division provided for in his will, and give to Mc-Ginnis, Liuebarger and Beaty a preference to the value of the negroes given, and of the notes surrendered, over his other sons-in-law and children ?

The interlocutory order will provide for reading in evidence the deposition of any witness who may be dead or removed from the State, &c.

Per Curiam. Decree accordingly.  