
    Lewisburg.
    Ben Mercer & als. v. Kelso’s adm'r & als.
    
    (Absent Cabell, P. and Brooke, J.)
    1847. July Term.
    
    1. Slaves emancipated by a will may propound it for probat.
    2. What nervousness of temperament, and eccentricity of disposition, manners and habits, is consistent with a sound disposing mind and memory.
    
      Hugh Kelso of the county of Bath, died in December 1843, having first made and published a paper purporting to be his last will and testament, bearing date on the 15th November 1843, and written altogether in his own hand. That paper is as follows :
    In the name of God, amen: I, Hugh Kelso, of the county of Bath and state of Virginia, being weak in body, but of sound mind and disposing memory, (for which I thank God,) and calling to mind the uncertainty of human life, and being desirous of disposing of such worldly estate as it has pleased God to bless me with. That is to say, 1st. I give and bequeath to my beloved wife Ann Kelso all my live stock, to wit: horses, cattle, &c., also two feather beds and furniture, her choice, also the household and kitchen furniture, and what farming utensils I may have. 2d. I give and bequeath to my said wife Ann one third of the money and proceeds arising from the hire of the slaves now in my possession, and also of any other slaves that I may own, or may belong to my estate hereafter, to wit: Mercer, Mary, Maria, Fountain, Moses, Dick, David, Julian, Silas, and also the hire of the children of Mary and Maria, she the said Ann, is to obtain one third of, viz: James, Charlotte, Ben, John, Julian, Maria's children: and also she the said Ann, is to receive the same share, that is, one third of the hire and proceeds of the labour of the children of Mary, viz: Charles, Jane, Katha
      
      vine, Caroline, Martha ; and also, the profit of tho labour of any other children that Mary and Maria may hereafter boar, she the said Ann is to possess the same proportion as before mentioned.
    3rd. I give and bequeath to my said wife Ann, the tract of land on which I now live, and the proceeds thereof during her natural life ; and after her decease I direct that said land shall be equally divided between my two daughters Mary C. Kelso and Caroline Kelso.
    
    4th. I give and bequeath to my said daughters one third of the money and proceeds of the labour of the slaves above mentioned, that is, their hires &c. of all, and the same share of the profits arising from the labour of any other slaves that may hereafter belong to my estate. And said third part shall be put to interest until said daughters shall arrive at lawful ago, which will be on the 6th of March 1848, at which time I direct that said money shall be equally divided between them.
    5th. I give and bequeath to my two daughters Mary C. Kelso and Caroline Kelso, the residue of my feather beds and furniture equally, also my library of books equally.
    6th. I give and bequeath to my said daughters Mary C. Kelso and Caroline Kelso, all my bonds and open accounts, equally, when they shall become of lawful age, except the sum of 500 dollars, which I direct to be put to interest out of said bonds, or vested by my executor in landed property at his discretion, and the proceeds thereof, or tho interest of said 500 dollars, as the case may be, applied to the benefit of foreign Christian missions annually, until the year one thousand eight hundred and fifty-five ,• after the expiration of said period, I direct that the proceeds thereof be applied to the benefit of domestic missions in our own state, viz : Virginia, for time without limitation.
    7th. I direct my executors to hire out annually all the slaves that may belong to my estate, giving said slaves liberty to choose as far as practicable, with whom they shall live, except one man and one girl suitable to cultivate the farm, and to attend to house business, to remain in the service of my wife Ann during her natural life ; on the condition that said slaves be under forty years of age. If they, or either of them, be above forty years of age, such one, or if both above said age, they shall be emancipated ; and also all the other slaves before named, or any others that may belong to my estate, on their arriving to the age of forty years of age shall be emancipated ; and if there be any legal obstruction to their remaining within the limits of the United States such as renders their continuance therein impracticable, then I direct that they shall be sent to the Continent of Africa. And if they be unable to bear their expenses thither, then I direct that as much money as is necessary for that purpose be reserved from their share of the hires, (to be hereafter mentioned,) shall be applied to defray the expense of their voyage, and to furnish them with such outfit as is indispensable.
    8th. I direct that one third of the hires, that is of all the slaves, belonging to my estate now or at any future period, shall be paid to each of said slaves annually, in proportion to the sum each one shall earn.
    9th. I direct that on the arrival of the year one thousand eight hundred and fifty-five, (except my wife Ann be then living,) all the slaves belonging to my estate at that time shall be liberated, that is the residue of those who have not arrived at the age of forty years down to the youngest infant; those of forty years of age being previously entitled to freedom. Those slaves under forty years of age, shall remain in servitude until the decease of my wife Ann; at which time they shall be liberated, including the elder Ben and his wife Charlotte not before named.
    And lastly, I do hereby nominate and appoint John S. Kelso, executor of this my last will and testament, revoking all others by me formerly made. In witness whereof, I have hereunto set my hand, and affixed my seal, this 15th day of November one thousand eight hundred and forty-three.
    ******** Hugh Kelso, * Seal. | ********
    
    In June 1844, John S. Kelso, the person nominated as executor in the will of Hugh Kelso, applied to the County Court of Bath, for letters of administration on the estate of said Hugh, which were granted; and he at the same time filed in the Court an explanatory affidavit, in which he said that in taking the oath “that Hugh Kelso deceased died without a will,” he did not intend to deny the fact of the execution of the aforesaid paper by his brother, as and for his will, but simply to affirm his conscientious conviction that the said will is not valid, because the said Hugh Kelso, at the time the paper aforesaid was drawn, did not possess that sound disposing mind and memory which the law requires to give validity to said paper, as the true last will and testament of the said Hugh.
    
    In September 1844, Ben Mercer and Mary Wright, two of the slaves emancipated by the said paper writing, applied to the Superior Court of Bath county to be permitted to propound for probat the said paper as the true last will and testament of Hugh Kelso ; and liberty being granted them, and the administrator and next of kin having been summoned, the cause came on to be tried in said Court in September 1845, when the jury found that Hugh Kelso was not of sound and disposing mind and memory on the 15th of November 1843, the date of the supposed will; and that therefore the said paper writing was not the true last will and testament of the said Hugh Kelso deceased. Thereupon the Court pronounced against the will, and refused to admit the paper to probat.
    
      The counsel for the propounders having moved the Court for a new trial of the issue, which motion was overruled, filed a bill of exceptions to the opinion of the Court overruling the motion, which exceptions embraced a^ ^acts Proved) and thereupon applied to this Court for a supersedeas, which was granted.
    The following is the bill of exceptions:
    On the trial of this issue it was proved that Hugh Kelso the alleged testator died about the first of December 1843; that some weeks before his death he had placed in the hands of Andrew Crawford, a cousin of his, for safe-keeping, the paper purporting to be his will. Two witnesses proved that the body of said paper writing was altogether in the handwriting of said Hugh Kelso, and that the signature thereto was his handwriting. It was also proved that about a week or ten days after the deposit of said paper writing in the hands of said Andrew Crawford, he received from said Hugh Kelso, then alive, a written communication in his Kelso’s handwriting, in the following words and figures, to wit : Dear Sir: As I am much indisposed and on the event of my not recovering I request you not deliver the paper that I committed to your care to any other person except the clerk of the Court in order to have it committed to record.
    Yours respectfully, <fcc.
    
      Hugh Kelso.
    
    It was also proved that about twenty years before the death of said Hugh Kelso, he married Ann Gerrard, now Ann Kelso, who survived him, and is now his widow ; and by whom he had twin daughters Mary and Caroline Kelso, also surviving him, and now about eighteen years old. That said Hugh Kelso’s father was a deranged man, so generally considered, and on one occasion raving, but never put under restraint in consequence of his supposed derangement. That Hugh Kelso himself exhibited symptoms of derangement about the time he grew up, such as dancing by himself, wildness of the eye, deep melancholy and strong religious excitement, so as to make his family uneasy about his condition ; but that these symptoms afterwards, in the course of a year or so, left him, except that he still continued eccentric, and did not return until about the age of thirty-five years, when he was married as aforesaid. That on the evening of his marriage he came to the house where it was to take place, and one of the company asked him if the parson would be there that night to marry him ; he replied that he would be there that night or the next day, he supposed. He did not arrive that night; was sem for the next day, when it appeared he had not been spoken to by Kelso to marry him, and on the said next day Hugh Kelso was married to his said wife, then a maiden lady somewhat older than himself, and ugly. That in a few days after the marriage Hugh Kelso abandoned his wife and went off some twelve miles, whore he staid several weeks or months, denouncing his wife as an old ugly woman, and saying he had sacrificed himself and married beneath him, and had committed a great sin in so marrying. That by the intervention and persuasion of his friends he was induced to go back to his wife in a few months; and that he lived with her till his death. That he got by his wife a negro man and woman with five or six children, from whom all the slaves belonging to him at his death, were descended ; but got no other estate by her. That he was a severe husband, taking from his wife the conduct of her household affairs and attending to them himself; a severe father, sometimes making his daughters work out in the fields at hay time and harvest. That he had given a colt to one of his daughters, a gentle animal, but which had never been broke ; and on one occasion, made said daughter ride the colt in treading out grain ; and being remonstrated with, said it was her colt and he wished her to break it after her own mind, that that was a good place to do it in. He would call his servants and send them to do a particular job, and before they would get where the work was, would often call them back to do something else. That he would in the presence of company often call out one of his daughters, speak to her, send her back and call out the other in the same way, and so on ; and would make them do menial acts when his servants were idle in the kitchen. That he had generally a wild expression of the eye, was restless, wakeful, rising through the night, sometimes one hour or more before day, singing psalms, and then calling up his family, flying quickly from one subject of conversation to another, and sometimes suddenly leaving company with whom he was in conversation. That on one occasion he put some little poles under the lower logs of his smokehouse and drove up slight stakes to keep them in place, but in such a way as any one might without difficulty remove them, and being asked why he did it, said that his neighbours were in the habit of stealing his meat, and he wished to prevent them. That on another occasion, not long before the date of the will, a neighbour went with his wife and some other females to his house, and found him in October or November sitting by the fire bathing his feet in warm water, carefully keeping the door of the house closed while he bathed. That when he was done he rose and went out into the yard in his bare feet, with his pantaloons rolled up, stood there some time silently looking on the ground. That while taking medicine he would expose himself in spite of the remonstrances of his wife. That he advised a witness, the Rev'd S. Brown, who was his pastor, not to build a barn on his land, that it would not quit cost, and that his crops would be safer without it. That on one occasion he told said Brown he had escaped a great danger, that his physician had sent him a vial of medicine, and that on pulling out the stopper it smoked ; that it at once occurred to him if he took it, it would burn him up, that he then poured it all out on the ground, and it smoked like fire. That in the summer, some time before his death, an apple tree was blown down on Sunday in his yard, full of green apples, that he had them all carefully gathered on that day and put away in his garret; the witness could see no use they could be applied to. That he said he was opposed to teaching his daughters more than reading and writing, as he thought women ought not to know more. That on one occasion in October 1843, he flew from one subject to another, was restless, not so pleasant as he had been in his family, his mind and body seemed impaired by disease, said if one of his daughters should marry a trifling fellow, he would confine and whip her. He was then sick, but witness found him out next morning feeding his stock and talking to one of his negroes; night before he had rose from supper and said he could not eat. He at that time sent a message by witness to a negro man of his at a furnace to send him some iron. About fifteen or eighteen years before his death, he bought a tract of land at 1400 dollars from a witness named Howell, who had bought it at about the same price from his, Kelso's cousin, Andrew Sitlington, which is the same land devised in the will, and was improved by him by liming, &c. Some years before his death, he was asked by a neighbour for some small pines growing on his land to use in building a church; at first he said he could not possibly do without these pines, and refused to give them, then immediately after gave them. That he would often go to stores and buy Ad. worth of goods in order to get a bank note changed. That he would often sit in church ringing his hands and talking to himself so as to annoy a witness sitting near. That some eighteen months before his death, he wrote a very foolish letter to one of the witnesses, containing words not to be found in the dictionary, unintelligible, except at the close, where he said he would give him something of a similar kind hereafter : but not produced at the trial. That on the 19th or 20th of November, a witness was sent for by him, to come and see him about a beef t^iat w^tness had bought of him the previous Septemher. That he had sent for witness a day or two before to come and take away the beef. That when witness went he told him he had been so lazy about coming for the beef that he had turned it out. Witness said he had counted on getting it, and must have it. He then went out with witness where the beef was, they agreed on the price, and returned into the house. There he got to talking politics with witness, became much excited, went out of doors ringing his hands and looking wild. After his death it was ascertained that he had entered on his books a credit instead of a charge to witness for said beef. In October 1843, a witness went to see him about the wood-work of a wagon that he had talked with witness about getting him to make. They agreed about the wagon, and he then told witness he had another job for him to do ; that he wanted him to cut off the corner of his bedstead, to prevent him from having to walk so far around it to the fire. Witness objected, that if that was done one side of the bed would be shorter than the other; well, said he, my wife is very short and the short side will fit her. That in the spring of 1843, he and a witness agreed for the lease of some of witness’s land, for which he was to pay one half the crop ; but if he would build a certain fence, he was to have it for one third of the crop. Next day he came to witness to know if he would rent him that same land. Witness told him he had rented it to him, and told him the terms. He then set off to go home, but before he got home returned again, and again asked witness if he would lease him the land. Witness again told him he had leased it, and repeated the terms; when he said- he would make part of the proposed fence, on which they agreed. He then took possession of the land, but never made the agreed fence. It was proved that said Hugh Kelso never was put under any restraint: never committed any act of violence ; was a consistent professor of religion for many years ; very strict in the performance of his religious duties ; well informed on religious and historical subjects, often conversing eloquently ; very economical in his disposition and habits : careful of the morals of his pupils when a teacher, and of his daughters; always conducting his affairs economically and savingly ; and a close dealer, generally making good contracts, and collecting his money closely ; punctual and honest; and that no one questioned his right and capacity to deal; and that most of the witnesses dealt with him. That one witness had gone to his house in the fall of 1843 to sell him some cattle, found his health very bad, proposed a trade to him, when Kelso said he had not time then. Witness insisted ; Kelso again said he wanted the cattle, but he had not time. Hurried about the house, looked wild, rung his hands, said he must cut out some shoes for his negroes at once, went out; witness then was so convinced of his insanity that he would not sell his cattle to him, without consulting his wife. That on one occasion he sent his daughters to the field with two negro men and a woman to work, but soon after followed himself. That in October or November 1843, a witness told him that some of his hogs were at his house, and asked him if he did not want them; he said no, he would exchange them with witness for some shoats. To this witness agreed, went home and fastened up the hogs. Next day one of Kelso’s negroes came over, as witness understood by his orders, and took away the hogs, to which witness did not object. That a witness, James M. Wood, owed Kelso some money, and James Lyle was indebted to said Wood ; that witness agreed to give Kelso an order on said Lyle for the amount he owed him, when Kelso in his own hand, wrote the following order:
    3d Aug. 1843 — Sir, please to let Mr. Thomas A. Bell have three hundred feet of 1J inch plank, and the ballance of what you are due, that is $ 6 25 in all the residue after the 300 feet of l-J inch plank being reducted, to be sent in f inch plank, and in' so doing you will much oblige, yours respectfull.
    
      Thos. E. Wood.
    
    Which witness signed. That on several occasions for several years before his death, said Kelso has expressed to a witness, James Howell, his conviction of the evil of holding men in slavery: and said he thought every one ought to liberate them as soon as he could. That to another witness, James Via, he spoke on two occasions to the same effect; the last time being about the 1st November 1843 ; at which time he mentioned the difficulty he felt about the manner of disposing of his own, and suddenly left the witness standing in the midst of the conversation. That to another witness, John Armentrout, he several times, some years before his death, expressed his determination to liberate his slaves at his death: all which witnesses believe him compos mentis, at the dates of said conversations respectively. That on one occasion he got Mr. Bell, a merchant, to change a note for him. Bell gave him the change, and he took the note and change and went out of doors with the witness, there being a crowd in the store at the time, to count it over. After he had counted over the change and found it right, he requested witness to go in with him and see him hand the note to Bell, which was done, when he touched the witness privately to induce him to notice it. That shortly before his death a witness told him he was in present need of some money, and proposed to sell him a bond he held on a good man for 50 dollars at the price of 40 dollars. Kelso said he had not that much money, but proposed, that if witness would let him have the bond he would give him for it twenty dollars cash, and twenty more when he collected the boud; to this the witness did not agree, as he wanted all the cash. That on one occasion he complained of a neighbouring miller, that he had not got a full return from the mill, when, on enquiry, he admitted that he had not weighed his grain on sending it to the mill, but had only weighed the meal sent home. In a settlement with one of the witnesses, he gave up or proposed to give up two or three small bonds as paid, which the witness owed him and which were not paid, but the same witness as the agent of another person leased him some land, and on settlement of the rent, Kelso insisted on a mode for settlement which deprived witness’ principal of about two hundred and fifty bushels of rent corn to which he was entitled. Witness know he was wrong, but was forced to submit or have a lawsuit, and submitted. This was several years before his death. None of the witnesses saw said Kelso from about the 1st of November to the 19th or 20th of August 1843. About thirteen years before Kelso’s death, he called on a witness, Col. Thomas Sitlington, his cousin, to write a will for him. At that time the emancipation of his negroes was talked of by him, but the witness told him if his object was to disinherit his wife and children he must get some one else to act as his scrivener. He then told witness to write what will he pleased. Witness then wrote three or four wills for him, with none of which he was satisfied. Witness wrote nearly a week for him, but could get nothing to suit him. While thus engaged he spoke of belling all the cattle, black and white, meaning his wife and children and slaves, and turning them out in the world. Witness thought him insane then, at last he became more calm; witness wrote a will for him which he executed, and witness attested. By this will his slaves were not emancipated, nor by any that witness then wrote ; though he does not remember the provisions of the one that was executed. A few months after, he got this will from, witness, and never gave it back again. In conversation with this witness on slavery, he at one time would condemn it, and again would endeavour to shew from the Bible that it was right. He was a recluse m his habits, and maintained at different times different religious doctrines. The above facts having been proven by various witnesses, the Rev. Samuel Brown, his pastor, Thomas Sitlington, John Sloan, Samuel M, Daniel, Walker Kelso, John Allen and Andrew Sitlington, his cousin, and Samuel Crawford, also a cousin, and the custodier of this will, and Thomas O’Kain, Jos. Bell, Sen., Jos. Bell, Jun., Thomas A. Bell, William Aris and John Hepler; many of whom had been on the most intimate terms with him, were his near neighbours, and had known him from his infancy, gave it as their decided opinion that he was non compos mentis, and had been so ever since his marriage with his wife. On being asked the grounds of their opinion they all agreed as to the wild expression of his eyes, his restlessness, incoherent conversation, flying from one subject to another; and some of them stated the facts above certified. While Dr. Coiner, a physician who had occasionally attended him, and had lived in the neighbourhood since 1836, Jas. Howell, Adam Surber, John Amentrout an old pupil of his, but who had not seen him for nine years before his death, Henry Rush, George Mayse, Orlando Griffith, who had known him thirty years, James Via, and Jonathan Demmon another old pupil, while they considered him as eccentric, sometimes flighty, singular, &c., yet thought him always sane and capable of doing a valid act, and disposing of his property. Said Coiner thought his bodily health had failed in the latter part of his life, and that his mind had become weaker with his body; that he was in a strange state of mind; that he overtasked his mind, and was not able to bear up under it; that he was very flighty, restless, full of notions, wakeful, sleeping in the forepart of the night, but up at unusual hours; still he thought him always sane, capable of doing a valid act, and making a will.
    
      Michie, for the appellants,
    to shew that the bill of exceptions was properly taken, referred to Gov. for Fisher v. Vanmeter, 9 Leigh 18; Slaughter’s adm’r v. Tutt, 12 Id. 147; Isaac v. Johnson, 5 Munf. 95.
    To shew what were the principles by which the capacity of the testator and the validity of his act were to be tested, he referred to 3 Rob. Pr. 334, 337, 342, 347; Temple & Taylor v. Temple, 1 Hen. & Munf. 476; Lovelass on Wills, 25 Law Libr. 263; Burton, &c. v. Scott, &c. 3 Rand. 399; 4 Philip’s Evi. 293, 299; Stock on the Law of non compotes mentis; 25 Law Libr. 10, 11, 40, 46, 48, 53, 4; 2 Law Libr. 46, 7, 8, 9, 50; 1 Beck. Med. Jurisp. 657, 8, 9; Dornick, &c. v. Reichenback, 10 Serg. & Rawle, 84 to 92.
    
      Stuart, for the appellee,
    to shew the principles on which a Court would grant a new trial on the ground that the verdict is contrary to the evidence, referred to Story’s opinion in M’Lanahan & als. v. Universal Ins. Co. 1 Peters’ R. 170; Ross v. Overton, 3 Call 309; Carstairs v. Stein, 4. Maule & Selw. 192; Brugh v. Shanks, 5 Leigh 598; Mays v. Callison, 6 Id. 230; Brown v. Handley, 7 Id. 119; Mahon v. Johnston, 7 Id. 317.
    To shew the principles upon which an Appellate Court will act on such a question, he referred to the opinion of Carr, J. in Brown v. Handley, 7 Leigh 119; Bennett v. Hardaway, 6 Munf. 125; Taliaferro v. Franklin, 1 Gratt. 332; Brooke, J. in Green v. Ashby, 6 Leigh 135; Baldwin, J. in Patterson v. Ford, 2 Gratt. 18; Hunter Hill’s Case, Id. 594.
    
      He then reviewed the facts stated on the record, and insisted that almost every indicium of insanity stated by the writers on medical jurisprudence was to be found in this case.
   Baldwin, J.

delivered the opinion of the Court.

It appears to the Court, from the facts stated in the bill of exceptions, to have been proved on the trial of the issue, that although the alleged testator was a man of nervous temperament and eccentric in his disposition, manners and habits, yet that at the time of his executing the paper writing purporting to be his last will and testament in the proceedings mentioned, he was of sound disposing mind and memory; and that the said paper writing was in all respects duly executed by the said Hugh Kelso as and for his last will and testament. The Court is therefore of opinion, that the said Circuit Court erred in refusing to set aside the verdict of the jury and grant a new trial of the issue. It is therefore considered by the Court, that the final sentence and judgment of the said Circuit Court, rejecting the probat of the said paper writing as and for the last will and testament of the said Hugh Kelso, is erroneous, and that the same be reversed and annulled; and that the plaintiffs in error recover against the defendants in error their costs by them expended in the prosecution of their writ of supersedeas. And this Court proceeding to pronounce such sentence and order as the said Circuit Court ought to have pronounced, it is further considered, that the said verdict of the jury be set aside, and a new trial had of the issue between the parties,  