#### BENJAMIN ROSS & al. vs. HENRY CHRISTMAN & al.

Dec. 1840

Where there is any evidence of fraud or imposition in procuring the execution of an instrument as a will, the jurors are at liberty to consider the dispositions of property actually made therein, to guide their judgment in malting up their verdict.

But where capacity in the testator, formal execution and volition all appear, no tribunal can pronounce against a will, because of its disapprobation, however strong, of the dispositions made by the testator.

This was an appeal from the judgment of the Court upon the verdict of a jury, on the trial of an issue, “ vel non,” tried before Nash, Judge, at the Fall Term, 1840, of Guilford Superior Court of Law. The case was thus stated by the Judge:

Issue of11 Devisavit vel non,” to try the validity of George Christman’s will. It was admitted that the deceased had full capacity to make a will, and that the paper in evidence was duly executed under all the forms required by law. But for the defendant it was contended that he did not know the contents of the paper now propounded as his will; that either the will was not written according to his directions, or t-his *210paper had been fraudulently substituted for the true one. sllsta^n this defence, it was proved, that twenty years previous thereto a friend of the deceased, one Joseph Gibson, had written for him a will, in which he had given to his wife one half of his property during her life or widowhood, to be disposed of at her death as she chose, and the other half to his brothers and sisters; and by the widow it was proved that her husband had sent for Ross, one of the plaintiffs, to write his will; and that when Ross left, she went into the room, when the deceased handed her a paper and told her it was his will, which Ross had written for him, and directed her to put it into a tin box in his trunk, which she did. She then asked him if Ross had -read it to him, and he replied no; that both before and alter that time he had told her he intended to give her all his property. The will was read to the jury, and its contents largely commented on by the defendants7 cousel in support of their defence. On the part of the plaintiff it was proved that after the wifi was written by Ross, the old man had several times remarked that his will was yet to be executed, and that it must be done. The old lady proved this, and that,, on the night previous to the execution of the will, he was taken very ill, so much so that it was thought he would not live till the morning; that he then expressed much anxiety as tc having his will executed, 'Saying if he died without signing it, it would ha?e no effect. Before day light he despatched a messenger for a neighbor, William Greeson, who got there before day, to whom the old man expressed his regret at raising him up so early, told him that he wanted him and another neighbor, Mr. Boon, to witness his will, that he had put it off too long already; that he then directed his wife to get his will. She went to the trunk and got out a paper. The old man requested witness to examine and see if it was a will, as his wife might have made a mistake. The witness looked at the beginning, and seeing it in the form of a will, told the old man so. The old man executed the will, and after Boon had come, for whom he had also sent, he again called for the paper, carefully folded it up, so that the witness could see only his name and the place where the witnesses were to sign, and said, lac-*211knowledge this to be my last will and testament; and, after its attestation, requested his wife to put it back into his trunk, which was done. There was a difference between the witnesses as to the time when Ross wrote the will. The old lady said it was about a month before its execution; the subscribing witness said it was twelve or fourteen months befoie. The deceased had been sick for some length of time, and was seventy years old. The Court instructed the jury that in cases of doubtful capacity, the contents of a will might prove important testimony; but since that question did not arise, as capacity was admitted, that the true question before them was, whether the testator, at the time he executed the paper propounded, knew its contents; that if he did, and with such knowledge executed it, intending it to be his will, and with the formalities required by law, it was his will; that as in this case capacityanddueexecution were admitted, knowledge of its contents was presumed, unless the party alleging the contrary, proved it; that if the defendants had succeeded in shewing them that the deceased, at the time of execution, did not know the contents of the paper, it was not his will. The jury retired, and, coming in for further instruction, enquired of'the Court whether, on the question of fraud, they were at liberty to take into consideration, the contents of the-paper. The Court instructed them no: that by itself proved nothing; for, however absurd and unnatural the dispositions of the will might be, if, from the evidence in the casej they were satisfied the deceased knew the contents of the paper, and with that knowledge executed it as his will, intending it so to be, it was his will; and upon that question all the evidence given in the case was submitted to them.

The jury rendered a verdict for the plaintiffs. The defendants’ counsel moved for anew trial on the ground of misdirection by the Court. The new trial was refused and judgment rendered in favor of the plaintiffs, from which the defendants appealed to this Court.

The case was argued by J T. Morehead for the plaintiffs, and Winston for the defendants.

*212Gaston, Judge,

If we are t.o understand the answer s-Wetl by the presiding Judge to the enquiry of the jury, as laying down the proposition, that when there is any eviof fraud or imposition in procuring the execution of an instrument as a will, the contents whereof are unknown or misrepresented to the supposed testator, the tri,ers are not qt liberty to cqnsider the dispositions of property actually made therein, we should feel ourselves bound to hold that the jury hacj beep misdirected. A conflict between these dispositions- and the known testamentary intentions of the deceased — the reppgnao.ee of these dispositions to the claims of natural aflection or qf mpral duty. — .their conferring material benefits on those through whose agency the supposed ■yvill has been prepared — thesp, an,d such as these, are circumstances fit to be considered and weighed in conducting the judgment to a proper conclusion. But it is plain, we think, that such would not be a fair construction of the answer.

The instrument itself had been permitted to he read to the jury, and the counsel for the caveators allowed to comment freely upon its dispositions. The jury had then been instructed that as the capacity of the deceased to' make a will, and the formal execution qf the instrument as his will were not ■ questioned, the only enquiry for them was whether the deceased knew the contents of the instrument, and they were directed, if they should be satisfied that he did not know the contents, to find that it was not his will. This instruction was never afterwards with drawn, contradicted or modified. When they returned with the enquiry, whether they were not at liberty, upon the issue submitted to them, to take into consideration the dispositions in the will, his honor answered in the negative. But this negative was properly qualified and fully axplained by his accompanying observations. They were told “that the will of itself prqved nothing, for, that however absurd and unnatural its dispositions might be, yet, if from the evidence they were satisfied that the deceased knew the contents of the paper, and \yith fhat knpwledge executed it as his will, intending it so to be, it wqs his will;” and that it was with a view “ to that question, all the evidence given in the case *213was submitted to them.” Thus explained, it amounted to no more than what must be held to be clear law, that where capacity — formal execution. — and volition all appear, no tribunal can pronounce against a will, because of its disapprobation, however strong, of the dispositions made by the testator.

Per Curiam. Judgment below affirmed.