#### Executors of James Reel v. John Reel

From Pitt.

'¿lie intimation by a Judge below, io tlie Jury, of Ms opinion on mailers of fad, is a ground for a new trial. And the enumeration to the jury of a variety of circumstances detailed in evidence, with a declaration that such circumstances are badges of iiaud, and accompanied with the remark, that “ it is for the Jury to enquire how it is possible for the circumstances to have existed without fraud,” is too plain an intimation of the Judge’s opinion of the fraudulent nature of the circumstances.

Tías cause came before tlse Court again, on an appeal from the judgment rendered on the new trial, bad pursuant to the former decision of this Court.* The case, as it now stood before the Court, came up on the ground that the Court below intimated to the Jury its opinion of the matter in issue. Hie issue was, deroisaml vM non, and arose upon the offering for probate a paper writing, purporting to bo the last will and testament of James Bed, which was in these words;

“ in the mine of God. Amen i

C! C, James Heel, of Craven county,, being of sound and disposing i£ mind and memory, do make and ordain, this, my last will and testa" ££ incut, in manner and form following :

“ Imprimis — 1 direct that all my just debts be paid.

“ Bern — I give the sum of two hundred dollars to the children of my “brother, John Heel, to them, their executors, administrators and as* signs forever.

££ Item — l give to my brother, 1 /evi Keel, one hundred dollars, to him, his heirs and assigns forever.

“ ltem — i give to my sister, Sally Wintly, fifty dollars, to her, her s“ heirs and assigns forever.

t,: Item — 1 give to my sister, Alicia Willis, in Georgia, one hundred ■'dollars forever.

“ Item — 1 give to my sister, Polly Ernull, one hundred dollars forever.

“Item — l give to my nephew, Aaron Ernull, the debt he owes me, £< and one hundred dollars, besides a reasonable reward for his trouble if iii superintending my business, to him and his heirs forever.

*64« hem — I give to my nephew, Robert Reel, and my niece Susanna “ Pringle, each five dollars forever,

“hem — My friends, AVilliam Blackledge and Vine Allen, having “ heretofore borne the greatest burden of the expenses and labour in “ supporting the Republican cause in the county of Craven, and being “myself of the same political principles, and very desirous of having “them supported, T, the better to enable them to continue their sup- “ port of these principles, do give to them, their heirs, executors, ad- “ ministrators and assigns forever, the whole of the residue of my es. “tato, both real and personal, except so much as shall be necessary to “ pay two-thirds of the expenses of building a Baptist meeting-house, “ at such place in the neighbourhood as a majority of the Baptists of “the same sect of which my parents were, shall appoint or pitch upon» “ and to be paid as soon as the other third of the cost of the building “ shall be properly secured by the members of such Baptist church. “ My desire is, that no sale be made of any of the property, but that “ the legacies be paid out of the debts due, as they are collected, and “ if there be not enough due, then, that such as my executors cannot “ pay out of that fund, be postponed payment till the income of my es- “ tate shall pay them, and my executors to have choice in paying what- “ ever legacy first they please.

“ Lastly — I constitute William Blackledge and Vine Allen, sole ex- « ecutors of this my last will and testament, and revoke all other or “ former wills, by me heretofore made. In witness whereof, I have “ hereunto set my hand and seal, this 23d day of August, 1815, at “ Newbern.

“ JAMES REEL, (L. 8.)

“ Signed, sealed, published, and declared

“by the testator, as his last will and tes-

“ tament, in presence of us,

“ Thomas C. Masters,

“ David Lewis.

“ As a part of this my will, I further give to my nephew, Radford “Ernull, the debt he owes me and fifty dollars, to him, his heirs and “ assigns forever. As witness my hand and seal, this 23d day of Au* “ gust, 1815.

“JAMES REEL, (L. S.)

“Acknowledged by the testator at the same time,

“ with the foregoing as a part of this his will,

“ Thomas C. Mastehs,

“ Daviu Lewis.

“ As a further part of this will, I give to my nephews, Moses and Allen Ernullj each twenty-five dollars, and to Stephen Email I give the *65ainouiil. fie owes, ^ks witness my hand and seal, tilts :?";1 of August, «1815. '

“ JAM«ñ REEL, (L. s.)

“Acknowledged, &c. as before,

‘e Thojeas C. IvÍASTiins,

“ i>A-Vin Lewis.”

A. staioraont, in detail, of the- testimony is necesoury to acorred understanding of the case» "Ose cause was tried before Mmveod, Judge, and the Srst witness cas'3e4 wan Thomas C. Musiera, a subscribing witness to ¡he writing produced as a will, who lest; Ken s:n íbilows :

Mr. .BiariJedgc came to the jail in Newbern, of which v.ifuess was the keeper, and rotjuestod him to go to his house to witness a paper. The witness went with Biack-Icdge ; David Lewis also came in, and witness and .Lewis attested the paper now produced as the will of Janies Heel. The witness either saw Bed sign it, or heard hita acknowledge it, and thought that no writing was done, nor was there any reading of the paper in his presence. The transaction look place before breakfast, arid Heel, .BlacUedge, Lewis and the witness, were the only per* sons present The witness said ho thought Heel was sober ; it was not mentioned that the paper was a will, nor did he know he had attested a will. Heel drank bard, but witness thought he had capacity enough to know what he was about. Heel was close and niggardly, and witness said be had seen him aiteiupt to jew David Lewis in a bargain for a chair, and whether drunk or sober, no man could take advantage of him. Witness knew cf no instance but the one just mentioned, of .Brers bargaining, or attempting.to bargain. The paper, after it was attested, was left at Blackledgo’s, and witness was present when it was opened after Heel’s death, at Heel’s house, by Biackiedge. It was enclosed in an envelope, tinder three seals.

The next witness called, was David Lewis. — lie was passing Blarklcdgc’s house-, on his way from 'market, he believed, because it was early in the morning, when cl-*66ther James Roe! or B Sac Id cage, be was uncertain which, called him into Blackledee’s bouse. He-there witnessed the paper with Masters. He was about to read it, but Rees said it was nothing to hurt him, and took it out of his band. It was not read to Reel, nor by him, in bis presence, nor was it declared to be a will. Reel several times attempted to bargain with witness to make him a riding chair 5 Heel wished it made for a sum less than its worth, and wished to pay for it in Plank, and no bargain was ever concluded between them. If Reel was drunk when he attempted to bargain with him, he did not remember it. Red generally called at witness’ shop when lie first came to town, and before he had an opportunity to get drunk. Witness remained at Blackledge’s a very short time $ he was present at Reel’s house, after his death, when Elackledge.produced the will, sealed in a cover with three setds, and it was then opened.

John Cratch was next sworn. — -He saw Blackledgs searching in his (TPs) trunk at his (B’s) mills, in Beaufort comity, and saw him there find the paper now produced as a willj it was sealed up in an envelope, under three seals j an endorsement of the time, and place of finding it was then made, which this witness attested» Upon cross exam!nation, he stated that the wafers with which it was sealed, were not wet.

The Defendant called first John F. Smith. — He knew James Reel from a boy, and he was a habitual drunkard — would get drunk at every opportunity. He was a weak, ignorant man, could hardly make himself understood, nor be made to understand others. Witness never saw him in a situation to dispose of his property with good sense — naturally weak — intemperance had impaired his understanding. Reel once offered to bargain for corn with witness, at five dollars the barrel, when every one else sold at three dollars. The witness had been a supporter of the republican ticket, and, in Mr. Jeffer*67son’s first ejection, travelled through the Mewbera dis-friot, and expended nearly iyKH); others also paid liberally in all the party contests:j s» lack ledge was liberal ;n treating \ oleic, bat Allen wns less so than any other candidate; in tart, had expended Ie:;s, as witness believed, in support of the republican party, than any other candidate, or any other no an of note, hi it. Allen had not been generally known as of the ¡parly until party Contests bad gone a, great way.

Isaac Taylor. — James Keel was a simple man, ana much addicted to drink. He. was generally, more or less, intoxicated when witness saw him, and was (he should say) a stupid, drunken man. fide would offer plank for sale, but asked such extravagant prices that a bargain was impossible, fie would ask, in clores, to taste the spirits, that lie might compare prices and quality, and would liras obtain liquor.

Claiborne Ivey knew Jatncs Heel, and had twice been at his house. He was always drunk when witness saw Min} his mind was naturally weak, and habitual intern pcrancc had rendered it more so. Witness, who is a. Magistrate, stated that, as suds, he could not have relied on James Heel as a witness, and though he had heard Jieel was hard ata bargain, he doubted whether he would-have administered an oath to him, even if sober, but as he never had seen Mm sober, he could not positively say he would refuse to let him fee swore.

William Tvtgh. — Me resides in I*iit county, James Reel called at his house on his return from Wayne county, w here he said he had been to consult a negro conjuror on his complaints. Reel .said the negro fold him he war tricked3S by persons who wanted his property, and told him also where the stuff was which tricked him. Reel also told witness that he had fixed, his property so that his folks could not cheat him out of it | he had made it over, he said, to Bladdodge and Alien to take care of if *68until lie returned from his journey. He talked very foolishly, and witness took him to be a man of less than half wit. Reel wanted spirits, and witness gave him a small bottle full, to get rid of him. Witness never saw him before, nor has he since.

■Evan Thomas, — He knew James Reel from his childhood. in the summer of 1815, Reel came to the house of witness, in Newhern, and remained all night j he was very drunk when he came j he said he was about to fix his business, and meant to make choice of Elackledge and Allen as Ills agents, or to leave it under their care until he returned. He said he was going to the springs; that his house was a terror to him. Witness had him put to bed, but Red said ho was afraid of ghosts, and desired that the windows might be shut to prevent them drag-ing him out by the legs. Witness remained with him until he dropped asleep, and then, leaving him, locked the door. In the morning he seemed as drunk as he was the over night; about 9 o’clock, of that morning, witness met him in the street, coming from the direction of Black-ledge’s house, quite drunk,* he said he had not yet lived his business, but would do it before he left town. In the conversation of the preceding night. Reel told witness lie Intended to take a ramble, to pass the rest of his life in travelling, and that his saw-mills would defray the expense 5 that he would put all of his notes and accounts in the hands of Blackicdge and Alien, and if lie died, it would be known what he had done. He also said, that while his neighbors slept, he was awake and walking his floor that he was sometimes in France, sometimes in England, and at others in the Western country. Reel could take in witness and his neighbors, by making them pay more than an article was worth, and by taking usurious interest. Reel said he could calculate interest before he got in this way,” and once,, when drunk, eleven or twelve years ago, he calculated the price of some .plank, and said he could do it to half a cent, but as wit-*69iifsss knew nothing of figures, lie could not say the calculations Keel made were correct. Witness did not know, nor had lie ever heard of any difference existing between Reel and his relations; he remained muck at home, and visited very little. Many years ago, witness went to Reefs to settle a note, and carried a man with him to see that it was correctly settled ; the man made no complaint of Reefs calculations, and witness paid the note accordingly. On his cross examination, witness admitted that he had said, if liquor made Reel’s limbs drunk, it did not make his head so ; that Reel could calculate on a slate, but would talk at random.

Thomas llidchi vs. — -lie went to reside in Newbern in J 809, and became acquainted with James Reel. He saw Reel at the election in Newbern, in A ugust, 1815, and for several days after; he was all the time drunk $ lie spoke of travelling to the westward for health. After this, Reel came once to the house of w ilncss, and asked him to go with him to filacklcdgc’s, saying there was a packet of papers there he wished to get. He told witness that he (Reel) understood that, in his drunken frolics, he had made a will and divested his relations of Ms property. This conversation was in 1816, or 1817. About two months afterwards, witness again saw Reel, in Newbern, and Reel again requested him to go with him to Blacklcdge’s, but witness informed Reel that JBlackledge was not at home.

Elizabeth Myden. — She resided at Mr. Blacklcdge’s in 1815, and had done so for 11 or 12 years before. James Reel came to the house of Mr. B. in the afternoon, and remained all night $ a bed was prepared for him in the room in which Blackledge usually transacted business with Ms clients $ witness thought that Reel was intoxicated when he came. The next morning Reel took breakfast there, but the witness did not like to say positively *70whether he was drunk or sober in the morning; his conversation was trifling and disagreeable. In the evening *•? o preceding, when at tea, something was said about Reel’s making a will, and leaving hi's property to Blackledge. Reel spoke of it. Witness never saw Reel at the; house except on this occasion. Spirits were kept in the side-hoard of the room in which Blackledge did his business 3 in that room Reel and Blackledge were together, and, as far as witness knew, alone for some time, and the next morning she knew Masters and Lewis were in that room to witness some writings.

William Tolar.- — lie lived within a short distance of .fames Reel — iic-;! always had a fondness for drinking, particularly towards the latter part of his life. Mis love of drink increased with ids years, and, witness said, he never knew so hard a drinker. He would ask high prices and trust any one. Before the year 1815, Reel had a severe fit of sickness, which weakened him very much. At the time of which Thomas speaks of Reel’s being at his house, Reel was absent from home, a week or more | it was in August. A little while before Reel’s death, witness was with him and remained some time j Reel told him he had tried to shoot himself, but the pistol would not go off until he held it in the air, when it fired 3 that some one had asked him for half his mill, but he told them their legacy was in Newbern. R. said that there was to be a meeting-house built, there was to be no sale, and witness would get as good a share of ids property as any body would. There was no reason in Reel as to trading, when he was drunk. Reel was guardian to a young man named Gaskins, but John Reel did the business for him. Reel’s sister often stayed with him— his brother John sometimes. Reel could work, as a smith, so far as to sharpen his ploughs, and was a tolerable wheelwright. Before Reel went up the country, he was a constant, habitual drunkard — kept spirituous liquor generally by him, and never was sober when he *71(•¡íshIíJ jW drank. He generally (lid bis own business* but when drunk, there was no reason in bins. He bad not wrougbíj as a smith, for years before his death, but bad ?í:,¡n’e a smith of one of bis boys.

Extm Jones.- — He bad known James Reel 8 or 9 years - - keel veas the hardest drinking man be ever knew, wan oommonly drank, and, in the latter paid of bis life, John Reel and Aaron Email managed bis business for him. las. Heel lived on good terms with his brothers and sisters, and nephews and nieces ; the witness lived within a, mile of him. In his latter years. Reel did not appear to have sense, and was frequently sick. Witness had. beard Slim talk about his will, and be said different things of it | that be bad left $500 to Aaron Erntill, '••3500 to build a meeting-hisuse, $500 to repair bis mills, and $12,000 to the public. The three first legacies ho named whenever be spoke, of his will, but the residue, ho sometimes said, was to go to build a navy. Witness did not bí-lievé that See" was capable of reading the paper produced as his will. Red cultivated between 5 and 10 acres of land, owned a grist and saw'mili, and sent probably one raft of plank a year to the Newbern mar-kef. Oh bis cross examination, tais witness said that be, .did not mean that dao. Reel and Ermuli managed James Reel’s business as owners, but under James Reel’s direction;'!. Witness never saw Black ¡edge at James Reefs but once. Reel had a salt in (tourl, at Newborn, some time ago, about a cow-bell, and Elactdcdge was Isis attorney. Reel couM read and write, and might once have been able to read the paper now produced.

ilavid WhUford. — lie is nearly fifty-eight years old, James Reel v/as about two years younger, and wan knows» to witness from bis childhood. He could figure iiad write, though but abad hand. In 1813, or 1814, Reel bad a dangerous illness, and from that time be was khe «no dwtwgwi, bis nerve* were Affected. Witness *72had been afflicted with rheumatism, and was advised to visit certain springs $ he mentioned this to Reel, and talked to him also, abopt a negro doctor in Wayne county. Reel several times proposed they should travel together, sometimes to Baltimore, at others to Philadelphia, to the Virginia springs, to the mineral springs, and to Cato Sabo, thé negro doctor, in Wayne county. Reel proposed to furnish a horse and pay all expenses, if witness would furnish a chair, but the witness treated his proposals as wild talk, for he did not think him right in mind, and believed that Reel did not understand his own business- Witness was a deputy-sheriff and constable, Reel would place papers in his hands for collection, and very soon call for themhe was dissatisfied with witness, and complained that one judgment was taken too soon, another was delayed too long. Reel would permit his plank to rot at his mill rather than sell it there. After his sickness in 1813, or 1814, witness thought him deranged; Aaron ErnulL often did his business for him. At the date of the paper produced as a will, witness thought,that James Reel could not have read a chapter in the Bible, much less the paper. James Reel never was married; he left living at his death, a brother Levi, brother John, the children of a deceased brother, two widowed sisters, one of whom had children, and a sister in Georgia; all of these were in moderate circumstances.

James Tolar. — James Reel was a man who always drank, but for some few years before his death, kept liquor constantly. He started on a journey and said he was going to the western country, but when he returned, he said he liad been to Wayne county. He heard Reel say, his property should go to strengthen or support a navy. Reel lived in friendship with his relations, and they were good to him. Reel lived a few miles from Newbern, on the opposite side of the Neuse river 5 he *73inherited from his father Use mill-seat, and bought from Jesse Tolar She land adjoining it. Reel was an excessively penurious man, did not indulge himself with a bed, hut slept in a hollow gum, until some'short time before his death, when he removed into his new house.

John I’oicdl. — Re heard Heel say he had left the greatest part of his estate to the public j to Aaron Er-Jiull S 400, to build a meeting-house id 500, and ¿Í 500 to rebuild the mill, asid $ 10,000, or $ 18,000, to the public. Shortly before his death, he said Rladdcdge had a packet of his papers, which he had sent for but could not get; that he had sent for Rladdcdge. and Allen, to come and bring Isis papers ; that they had not used him well in not bringing them, and in not attending to him. Witness lived with James ileel tour months; his relations, during that time, came to see ls‘»u, and were apparently on good terms; the witness left him because he was so disagreeable; believes Keel afterwards made small contracts, such as selling half a bushel of corn 5 never heard Reel complain »>" his relations. Reel bargained, in person, with witness to jive with him, and he believes, generally made his own contracts. The bargain between Reel and the witness was, that the witness should have a tenth part of the product of the mill, and of all that was made by cultivation, or, in lieu thereof, one dollar a day • that this bargain w as to have been reduced to w riting. but lied, though called on by witness to have it written, never did. Reel owned three slaves, a horse, and two yokes of oxen.

'.Raymond, Slapl-ford. — James Reel told bisa be had sent twice to bis at:muios for bis papers, and they had not sent them. Reel said be would cut them short of their expectations ; the papers he wanted, be said, were such as would make a disi'trbance after his death : this was twelve months before Heel’s death. Witness he-*74Heves that, at that time, Reel was capable of making a contract. On one-occasion, witness bon owed four dollars of James feed, wrote a note for it and gave it to feed, who looked at it and received it.

Winifred WUUs. — In 1815, James Keel, at Lis own house, said, in the presence of this witness, that he had twice sent to Blackledge for his papers, and B„ had not sent them; he was dissatisfied because they were not sent, and said ho would have them. He did not sa> what papers tliej were.

Earl SiiUy. — James Neel was habitually a drunkard, always drunk when be could get so. Aaron Email often did bis business. When Reel had corn to sell, lie would refuse to dispose of it, until his -negro told him he could spare it. It was moro diíáeult, however, to bargain with him when drunk, than when he was sober ; he asked a higher price than other people, and sold on a credit to those . J o were obliged to purchase.

Hardy Whifford. — -James Reel was not a bright man, nor was he a perfect idiot, he could sometimes be understood. He was a hard drinker, and when drunk, a most disagreeable man. ills mind was evidently impaired in his latter years, by drunkenness. Ho was on friend!* terms with bis relations. James Seel and John Arthur, were securities for a Mrs. Gaskins, as the guardian to her son. Arthur died and his executors applied to the Court to be discharged from the bond. Reel was appointed guardian, and his brother Joba hired out the ne-groes for one year.

John 7Iu.ll..Abort the time that James Reel became incapable of going about, be told this witness that he had some papers in the hands of Blackledge, that he had sent for them, and Blackledge world not send them, *75that. Blacklcdge had acted with imprudence towards him, and was not the man he had supposed lina to be. Mee! never was a bright man and drank very bal'd. On one occasion, when Vine Allen was on Maori; side of iLo »i-ver, electioneering, witness heard Reel say, vhcl. his people should not be Kindi the belter for what he had, they oared nothing about him he said. John Red voted uiili the 1'Vdera! party, in the latter part of hia Ufe, James lied was weaker in mind Osan before. A year or two riefoi-0 his death, he said he had left his property for a navy, that his relations were like buzzards waiting for carrion, and you (addressing the witness) shall have as mock of my property as «my of them. Reel often talked in such a manner that witness could «oí understand him.

it was distinctly admitted, as a fact, that the whole of tho paper produced as a will, except the signature and • attestations, sves in the handwriting of William Black-ledge.

The executors, iu support of the will, examined again,

David Lewis. — Wlien Reel was bargaining about tho chair, witness heard hisn say that his relations differed from him. in politics, and neglected him in sickness. Cross-examined, witness thought, he said his brothers differed with him in politics j he mentioned particularly his brother John.

Elijah Bunn. — 4Ce always understood from Janies Rod, that his relations .should not be bettered by his property, except Aaron Email, and he would pay him for writing for him. Reel told him he had given his property to Blackledgc and Allen. Witness had heard Reel say this more than once. 'Witness, who stated his age to be about twenty-three, said that when a lad, he was mischievous, aud would often go to Reel’s mill-pond *76to swim, and Reel would threaten him with what Black-ledge would do to him. For some years, witness has lived in Beaufort county. On his cross-examination, he said that Reel told him a part of his property would go to the public, and that Blackledge and Allen were to manage his estate. Witness was not positive that Reel said he had made a will, but lie said he had given his property to Blackledge and Allen. Witness never testified in this case before- — was summoned during the last week — never mentioned these conversations of Reel’s but once, and then it was to 1ns father-in-law. The witness said he met Mr. Blackledge the week before, in Washington, accepted the service of a subpoena, but told him nothing.

Levin Dunn. — lie, heard James Reel say Blackledge and Allen were to manage his property, he had left it in their hands to see to. He had sent for them to come and see him, and they had not come. Reel said they would manage his affairs after his death ; that he had left his property to the public, and witness would get his share of it. This he heard about two days before Reel’s death. This witness said he was brother to the last witness, and used to go with him to Reel’s mill-pond, but his memory is not so good as his brother’s, and if he heard the conversations related by him, he does not now remember it.

Shadrach■ Gatlin. — James Reel was able to take care of himself, and to transact ordinary business. Witness heard him say he had left his property to Blackledge and Allen “ to support public discipline,” except some legacies, and they would find them in a will, under three seals. Reel said Blackledge was a man in whom he could put confidence. Witness had seen Reel reading, and Jas. Reel told him that his brother Levi Reel was a federalist. Witness was much plagued with Reel; when drunk, Reel could not be cheated, for then he would not *77bargain. Witness always thought Reel a man of more ;«)R&e tinn himself — has hoard him read notes of hand, and has seen him write. Witness can write his. name, and, in his way, make out his bills. Reel could calcu-lato rhuik, and was quite able to take care of himself, except when beastly drank.

Jmv.cs Rice* — James Reel told him Le had a wiil in the bunds of Rlackiedgc, and that Blackiedge ami Allen were his executors; that he had given A.irou Ernull St 00 the best legacy. Reel said to witness, ‘'don’t yon want io know the witnesses to my will Í” Witness answered (i yes.” Reel then said, they are Thomas C. Masters and David Lewis.’* Witness and Reel had t¿ conversation about bleeding him ; the latter wished it, hut witness disapproved. Reel gave him the key of his chest, and desired him to keep it, and lot tin one have, it, sutil he or Bladdedge son! for it, and said that he should not live long. Reel sent for witness a few days after-wards to bring 4he key — some money was taken from the chest, and üeat j it was then locked, and the key returned to witness, with a charge, to take care of it. Reel told witness he had been asked a hard question $ that a woman had asked him to give her half of his mills, and he added, “ my God! what would she have done with them!” that Ms folks cared nothing about him. and when lie was sick, came round him like buzzards, ic hut, upon say word, Mr. Rice, you shall have as mud» of "¡Í as any of them.” The last conversation which wumejs batí wilh Reel, was about one month before be died. Reel could attend to his affairs uni II he got in ft s this low state* until five or six day; twioeo Ms death. ?fieel dies! «¡a Tuesday, the last day of June, 1810. A month before, his death, Reel overreached Radford Email in a calcnia-fion of plank. Reel said that he bad inld his sister* Mrs. ErnulS, that her legacy wish n> JMefffcniv uacler three seels. 'Wífíwvr-; «wM Reel tb.fi he fRer* ¡¡ orydd a?r *78jjul his will if iie did not like it j Reel answered that he had thought of doing so, but since he saw how bis folks treated him* he was satisfied it should remain as it was. Witness never considered the chest as given to him, and never claimed it, but. Evan Jones told witness, if he had as good a right to it as witness had, he would not take something for it. Jones said Reel told him he had given it to witness. The witness stated, that on his former examination, lie did mention the fact of Reel’s tolling him the names of the witnesses to his will — Liquor had an effect on Reel's limbs, but it had none on his mind— his understanding was always pretty good.

Elisha Callo’ícav. — He stated that Reel told him he liad a will in Slackkdge’s possession, and that he had given the key of his chest to Rice to fc>vp until Reel or Black-ledge sent for it.

The guardian bond, given by James Reel as guardian to Win. Gaskins, to the Justices of Craven County Court, in June, 1817, in a penalty of .-§10,000, was then read.

The defendant then called Evan Jones. — James Rice, the witness, told him ho knew enough to make James Reel’s will, or to break it, as fie pleased, and that it should be a will. Witness told Rico that James Reel said he had given him the chest, and what was in it, and Rice pressed hir1 to go before a Justice and prove it for him. but witness thought Reel did not understand the meaning of his own words, and would not prove it. All Reel’s family, except his brothel* John, always vote on the republican side. Reel had several nephews who are yet living. Witness has heard the witness Rice, in Reel’s lifetime, many times, call Reel a drunken fool. Witness did not recollect that Rice had ever told him the key of the chest was given him only to keep. Witness has heard Rice examined twice, in this case, before, and he *79never mentioned the circumstance of Heel’s informing Min who were witnesses to the will until this day.

William ToIiM\ — lki hoard Rico ash Jones to go before a Justice a sal prove that Mod bad given him the chest. Witness said he had novel* heard Rice cali Roda drunken fool, or say that lie could make or brook the will.

John Farjsiü. — He heard Mice say lie would be damned if he cooíd not make it a will, and if lllackledgc would net persevere ami prove it a will, he would. This was said when ft was reported that Blackledge intended to insist no longer c-i the probate of the paper. Witness had heard Rice sworn on tiie two former trials, and he never mentioned, before, Red’s having* informed him of the names of the witnesses to his will.

The Judge began his charge to the Jury, by a strong caution against the indulgence of parly feeling or political attachments. Nothing, ho said, couM bo more fatal to the administration of justice, or to the liberty of the country, than to permit feelings of that sort to enter the Jury-box. Whether the J ury approve (1 or disapproved of the political sentiments which were adverted to in the will, and referred to in the argument, was a circumstance which should not have the smallest influence in their decision.

líe further cautioned them against being influenced in their judgment by Use verdict which had been rendered in this caso, in the County Court of Craven. Had he been aware that thin part of the record would have been used at all in argument, he should not have permitted it to be even read in the presence of the Jury. It was not evidence to them for any purpose. They were sworn to decide according to the evidence, and according to that only.

The formal execution of the paper-writing offered as a will was not in dispute. The controversy depended on *80two enquiries, 1st. Had the testator, when the will was executed, sufficient capacity to make a will ? and 2dly, Was the execution of the alleged will obtained by fraud ? On the first point, he instructed the Jury, that the law required a capacity not merely above idiotcy, but suck as would enable a man to look around him on those- who might have claims on his affection or duty, and to dispose of his property rationally.

Yet the law by no means required that a testator should have even that portion of understanding which fell to the lot of ordinary men.

If his mind was far below mediocrity, yet such as would permit him to dispose of his property with intelligence, he was qualified to make a will. The law presumed that every man has such a capacity, until a disqualification was shewn, and when such disqualification appeared, it presumed its continuance until its removal was shewn. On the question of fraud, the Judge, charged the Jury, that they being elected to decide, whether the writing produced, was the will of the deceased, would pronounce it not to be his will, if it appeared to them to have been procured by imposition. Fraud was to be proved. It could ordinarily bo proved by circumstances only. Whether circumstances relied on to prove fraud, did exist or not, was a question of fact solely for the Jury, and when found to exist, would have an influence on their verdict, according to the conviction it produced on their minds.

Men apply to attorneys for advice and assistance, because they have confidence in their abilities and integrity 5 if an attorney is applied to, to draw a will for a man, and that attorney produces a will drawn in his own hand-writing, containing bequests to himself of a large part of an estate, the law looks upon it with great suspicion ; and if in addition thereto, there are other suspicious circumstances, such as I shall mention to you presently, the law will not support such a will. For instance, if the mind of the testator was weak : if the will *81was made secretly, and drawn when no body was pro-sent, and in the absence of the relations of toe testator-If there was no body present but the testator and the attorney, and it was in the night or early in the morning, after a course of habitual drunkenness, before he would probably have recovered from the ejects of his debauch j if the will upon the face of it contained a statement of the reasons which induced the testator to make certain bequests, and it appeared that Use statement was untrue.

If dames iteel had near relations against whom he had no resentment, and those relations or ñones of them, were widows and orphans unprovided for, if then, ise appeared afterwards not to know, with reasonable correctness, the contents of the will; if he left the paper in the possession of his attorney, and afterwards endeavored to regain the possession of it, and the attorney, by contrivance or fraud, withheld it; if shortly before the date of the will, he expressed an intention to make some other arrangement, or if to make a will a different one — these would be evidences of fraud. That whether those circumstances or any existed in this case, it was their duty to ascertain from the evidence. And Use Court further charged the Jury, that they ought to consider the dispo - sition of t he testator’s mind towards his relations at the time the paper was executed, and ought not to be governed by any peevish expressions made by the testator af-terwards ; that it was proper for them to enquire whether it was intended by the testator, and the Plaintiff, or either of them, the execution of the paper should be kept a secret, and if they found the Plaintiff intended it should be kept, a secret, and the testator did not so intend, it would also be a circumstance against the will, and on such enquiry it might bo well to consider whether the Plaintiff applied to Masters to attest the will, and concealed from him that it was a will by requesting him to attest an instrument of writing, and whether the testator soon afterwards, and at different times, men tinned that he had made a will. And the Court charged the Jury, to *82empire whether it was common or usual for a testator to declare the r strum‘'it which he is about to execute to í>e his lam, v ili ami testament, and if such be the usual and customary course, you will consider wiiy it was concealed from the subscribing witnesses, that it was a will they were called to attest.

Unnecessary and unusual precaution sometimes furnishes evidence in cases of fraud, and even in cases of murder — As when a man upon riding out took out his watch, and called upon his servant to notice the hour of the day — a murder having been committed, with which this man was charged, he called upon his servant to prove, that at the hour when it was committed, the accused was at another place, and that he had been particularly called upon to notice the time of his leaving home.

This circumstance was held to be suspicious, and being united with other circumstances, the man was found guilty of the murder. If a man takes unusual precaution, it is an evidence that he knows there is something wrong. In this case, it is for you to enquire why all this precaution was taken, of sending for Ermill, and having Cratch for a witness, when the paper was taken out of the trunk, if there was no fraud ; and if there was no fraud, what necessity there could be for such caution.

If the will was fairly executed and attested by the subscribing witnesses, would not their evidence have been sufficient to establish it, and would it have, occurred to Mr. Blackiedge to use these precautions if those be facts You will consider of this and form your own conclusions. The will states that Blackiedge and Allen had been at the principal expcnce of supporting the Republican cause in the county of Craven. Mr. John F. Smith says that he himself was a warm partisan, and that Mr. Allen did not take a decided part until the strength of the respective parties was pretty well ascertained. If this witness be correct, the statement contained in the will is untrue, and the reasons which operated upon the testator did not exist in point of fact, and this will be a circumstance of *83fraud : standing alone, perhaps It would not be sufficient, but in take it i:i connexion with others which have come out in evidence, it is a mat tor for your consideration, a!i?l will have, its weight with yo».

■ Something has been said of character, ami your knowledge of the character of Mr. Blarklcdgo has been appealed to ; the. character of the parties cannot he taken into consideration in this suit; they are not in issue, atul you have nothing to, do with then*, no evidence of their characters could have been received, in cases where the character of the parties is put in issue by the proceedings, as in cases of malicious prosecutions, evidence may be given of character, and in those cases the Jury may decide upon their own knowledge of the parties character. But, in this esse, no evidence of character could be given, and you will not permit any knowledge which you may possess of the character of Mr. Blackledge, to have any weight in your deliberations. In the course of the argument, ene of the counsel for the Caveator, read to you the record of the trial in this cause, while it was pending in the County Court of Craven, showing that a Jury of that county had found that the paper writing, now contested, was not a will. Not knowing what that record contained, before if: was read, E did not prevent the reading of it to you, hut 8. now tell yon, it should have no weight with you; you are not sworn to decide according to the evidence which was before them, but according to the evidence which has been given to yon. As evidence of the capacity of the testator, it has been insisted by the Plaintiff^ counsel that it is in proof, that he Is close in Ms dealings, generally asking more than the value for every thing he had to sell, and endeavouring to purchase what he wanted, at less than the value. It will be proper for you to consider, whether it would not be better evidence of his understanding, that he was willing to sell what he had to dispose of for what it was worth, and give the value fov what, he wanted to purchase.

*84Thomas C. Masters says, that the testator always seemed to have a capacity to do business, whether drank or sober, but this witness, when cross-examined, states that he forms this opinion from a single transaction, in which he saw him attempting to bargain with David Lewis for a chair.

By the evidence of this witness, and the other subscribing witness, it appears that the paper was executed by the supposed testator, between sun-rise and breakfast time: they have stated to you that he was sober. How a than who had been continually drunk for seven or eight days, could he sufficiently restored to his understanding, by one night’s rest, to enable him to dispose of his property with react!*!, especially when it is proved by another witness that, after a night’s sleep at his house, he seemed as drank in the morning as he was the over - night, will be a proper matter for reflection and enquiry for you. Upon a remark by one of the Plaintiffs’ counsel, his Honour then said, that he did not assume it as a fact that the. testator had been drunk for seven or eight days, but left it to the Jury to consider whether the facts were so or not. The bond executed by Reel forihegnar-dianship of Gaskins, has been shewn to you, and yon have compared his signature thereto, with the signatures to the will. From the appearance of these signatures, it has been argued to you that Reel was much drunker when he signed the guardian bonds, than when he signed the will. It will he a matter for your consideration, whether a man accustomed to the excessive use of ardent spirits would he able to write early in the morning, after several days of intemperate indulgence, without betraying great nervous affection, unless lie had, that morning, been stimulated by spirits.

The Judge then proceeded in recapitulating the evidence of the witnesses, calling the attention of the Jury to the most material parts, and particularly to that part of Evan Thomas which stated that the testate»* intend-cd that Blacklcdge and Allen should be, his overseers or *85agents 5 that part of Win. Pugh’s, which stated the testator said he had made over his property to Blackledge and Alien to take care of till he carne back, and got able to attend to his business ; that part, of Ilutchin’s, which stated, the testator said he had understood ho liad made a will in his drunken frolics, and had divested his relations of his property ; and concluded the charge, by telling the Jury it was their prov ince to pass on the credibility of the witnesses, the weight of the fads proved, and to draw the conclusions from thence ; and if they found the testator was not of disposing mind at the time he executed the will, or it had been obtained from him by fraud, it would be their duty to Sind against the will 5 otherwise, for the will.

The Jury returned a verdict that the paper writing was not the last will and testament of James Reel.

Whereupon, it was considered by the Court, that the said paper writing, offered as the will of James Reel, is not the will of the said James, and that the defendant go* without day, ami recover his costs.

*

Vide ante, vol. 1, page 248.

The opinion of the Court was delivered by the

Chief Justice.

This is a motion for a new trial, on the ground that the Court intimated its opinion to the Jury of the matter in issue. The act of Assembly, relative to the duty of a Judge in charging, forbids him “ to give an opinion whether a fact is fully, or sufficiently proved, such matter being the true office and province of a Jury and it directs him 6i to state, in a full and correct manner, the facts given in evidence, and to declare and explain the law arising thereon.”

The evident design of this law was to preservo the purity of the trial by Jury, and thus to secure to every' man, whose rights were controverted, a decision on the facts put in issue, which should be the result of the Jury’s investigation of the evidence^ uninfluenced and ¡mid-*86assed by the opinion of the Judge, whose province it is to pronounce whether testimony be admissible, and to instruct the Jury as to the law, accordingly as they shall believe the facts proved, or otherwise.

It is not for this Court to discuss the wisdom or expediency of this law, or to pervert its true construction, under a belief that no mischief can be produced thereby, or even that justice can be more substantially administered. It is the will of the Legislature, and we are bound to obey it; so that every man who conceives himself aggrieved by a disobedience to the law, has a right to be heard here, and if he can establish his case, lias a right to a new trial without any necessity, on the part of this Court, of enquiring into the merits of the verdict. For, although it should appear to this Court, that the evidence spread upon the record is such, that if believed by the Jury, it well warranted the verdict; yet, if it also appear that the Judge, in his charge, “ gave an opinion whether a fact was fully or sufficiently proved,it cannot be told how far the verdict was produced by the testimony, since the Jury were to judge of its credibility, or by an intimation of the opinion of the Judge. The propriety of the verdict, then, or its conformity with the evidence, we leave out of the question, and desire to he understood as giving no opinion upon it. For, if the motion for a new trial were overruled because this Court approved of the verdict, and it should, at the same time, appear that the Judge had departed from the direction of the law, in charging the jury, it would be deciding, in effect, that disobedience to the law may be tolerated or not, according to the consequence which flows from it. If a verdict contrary to, or unsupported by, evidence, has been produced by it, the party shall be entitled to a new trial. But if the evidence justifies the verdict, and the right of the cause has been duly administered, the charge of the Judge, although deviating from the law, shall be overlooked. But this is not the-*87rule proscribed by tbe Legislature ; they have inhibited the declaration of the Judge’s opinion on the proof of facts, in every case, presuming that, in every case, it encroaches on the proper functions of a Jury, and that, in every case, it imparts a bias to the judgment of the Jury, which they are disposed to receive with confidence, and seldom make an effort to resist.

I proceed to examine the charge with a single eye to the question, whether it be conformable to the act of Assembly.

It begins with a caution to the Jury against being influenced by party or political attachment, or by a former verdict on the will, which had been rendered in Craven comity, and reminding them that they were sworn to deckle according to the evidence, and to that only. This was very necessary, and called for by the nature of the disposition in the will, which being favorable to two persons, on account of their personal exertions in a contest of party, was peculiarly calculated to awaken tbe ordinary passions and propensities on such occasions. The Judge then directs their attention to the true questions of fact in issue, the capacity of the testator, and whether the will was. obtained by fraud or not. He first describes what the law considers a disposing mind, and its presumption that every man possesses it until a disqualification was shown : and in doing this, the Judge exorcised his proper functions with equal skill and perspicuity. The general instruction that follows on the means by which fraud may be proved, is also unexceptionable.

But when the Judge proceeds to sum up the circumstances which he calls suspicious, and which, if they exist, the law will not support the will, that part of the charge, cannot be read, without a belief that it conveyed an intimation to the Jury, of his own opinion, that they were suspicious and that they were proved to exist; and if, in addition thereto, there are other suspicious circumstances, such as I shall mention to you present-*88]y? the law. will not support such a will. For instances if the mind of the testator was weak, if it was made secretly and drawn when nobody was present, and in the absence of the relations of the testator: If there was nobody present but the testator and the attorney, and it was in the night, or early in the morning, after a course of habitual drunkenness before he could probably have recovered from the effects of his debauch: If the will, upon the face of it, contained a statement of the reasons which induced the testator to make certain bequests, and it appeared that the statement was untrue : If James Reel had relations against whom he had no resentment, and those relations, or some of them, were widows and orphans, unprovided for: If then ho appeared, afterwards,- not to know with reasonable correctness the contents of the will: If he left the paper in the possession of his attorney, and after-wards endeavoured to regain the possession of if, and the attorney, by contrivance or fraud, withheld it: If shortly before the date of the will, be made some other (arrangement, or if, to make a will a different one,, would be evidences of fraud.”

These circumstances, thus grouped together, before the statement of the testimony, must unavoidably have been understood by the Jury, as-the impression made on the. Judge’s mind, by weighing and comparing the evidence, as the result of his view of those parts of it, which related to the subjects touched upon 5 and w-as calculated to make a lodgment in their minds, notwithstanding the conclusion of the paragraph. “ That whether those circumstances or any existed in this case, it was their duty to ascertain from the evidence.”

The truth of some of these facts, thus hypothetically stated, depended upon the weight anil comparison of conflicting testinsony, which was a labour less likely to be encountered by the J ury, if they believed it had already been done by the Judge. For example, “ if James Jteel had relations against whom he had no resentment.”

*89The, witnesses, Jones, Tolar, Powell, and Whitford, depose that the testator was on good terms with his re-lal-ions. The witnesses, Hall, Lewis, Dunn, and Hire, swear to the declarations of the testator, made at different times, tliat his people should be no belter for what lie hud, that they cared nothing about him, that his brolhers differed from him in politics, and neglected hita in sic!:ness, and that his folks came like bu&zards about carrion when he was sick.”

" If the will, upon the free of it, contained a statement of reasons which induced the testator to make certain bequests, and it appeared that the statement wus an-true.” The only reason given in the will for any bequest. in, that for BUckledge and Allen, and that is for their hating, heretofore, borne the greatest burthen of the expenses and labour in supporting the republican cause in the county of Craven, and because the testator was of the same political principles, and very desirous of having them supported. Here arc three distinct motives stated, an inducing him to make the bequest, viz: the legatees having borne the greatest burthen of the expense and labour, in supporting the republican cause j his being of the same political principles, and his desire to have them supported. There is no evidence in the case tending to shew, in the least degree, that the two last reasons are false. As to the first reason, the only evidence is that of J. P. Smith, who admits that Black-ledge treated liberally, but Alien less than any other candidate, and had expended less in support of the republican party, than almost any man of note in it, and had not been generally known as of the party, until party contests had gone a great way. Mr. Smith goes as far back as the period of Mr. Jeíiérson’s first election, which was in 1800, but does not specify when it was tliat Mr. Alien was genera! Iv known as of the party 5 and the Jury might have had some difficulty from *90this evidence, to infer the falsehood of the reason that Biackledge and Allen had, heretofore, (that is before ° , 1815,) boi'nc. the burtiien of labour and expense.

<í |f jie ]eft the paper in possession of his attorney, and afterwards endeavoured to regain the possession of it, and the attorney, by contrivance or fraud, withheld it.”

Of the several witnesses, Hutchins, Powell, Shackle-ford, Willis, arid Hall, whose testimony relates to this point, none of them speak of the testator’s having endea-voured to get his iwill from Biackledge ; they all speak of papers, or a packet of papers ; and Thomas deposes, that in 1815, the testator told him at Newbern that he meant to put his notes and accounts in the bands of Biackledge and Allen. It was therefore to be considered by the Jury, whether he had endeavored to regain possession of the will.

“ In this case it is for you to enquire why all this precaution was taken of sending for Ernull, and having Cratch for a witness, when the paper was taken out of the trunk, if there was no fraud.”

The only witness as to this point is Cratch, who merely says that he saw Biackledge search in his trunk, and find the paper produced as a will. For what purpose the witness went to Blackledge’s, or whether his abode was there, does not appear. The charge conveys the idea that Biackledge procured Cratch to be there for the purpose of attesting the finding of the paper, and that he was called upon as a witness. Nor is there the slightest evidence that Ernull was sent for, or vvas even present. Both circumstances are stated in the charge, as if proved as facts. The law case stated by the Judge, of the servant being called upon by his master to notice the time he left home, could only illustrate the suspicion; and even presumption growing out of unusual precautions, upon the supposition that Cratch had been specially called upon by Biackledge to witness the finding of the will in the chest: and the very statement of the case was cal-*91calated to make the Jury suppose that necessary fact was proved. On no other principle could it bear on the point.

“ If the w‘!l was fairly executed, and attested by the subseribing witnesses, would not their evidence be suili-cient to establish it, and would it have occurred to Mr. Khickledge to use these precautions, if these be facts ?

“ You will consider of them ami form your own conclusions.”

This does not seem to leave the consideration of the evidence to the Jury without an intimation of the Judge’s opinion upon its force and effect.

“ Masters says, that the testator always seemed to have a capacity to do business, whether drunk or sober ; but tisis witness, when cross-examined, states that he forms this opinion from a single transaction, in which he saw him attempting to bargain with Lewis for a chair.”— Upon looking at the testimony, it does not appear that tiie witness had so formed his opinion, nor does he state upon what U is founded. lie says, that whether drunk or sober, no man could take advantage of him, and he ..aw him attempt, to jew Lewis for a bargain in a chair, which is the only instance of his attempting to bargain that he knows of. Ills .general capacity for business is one part of the evidence ; his freedom from imposition, whether drunk or sober, in a bargain, is another, and as the witness never saw him attempt to bargain but once, it is an inference that his opinion may be founded o»*thaL

By the evidence of this witness and the other subscribing witness, it appears that the paper was executed by the supposed testator, between sun-rise and breakfast time : they have stated to you that he was sober. How a man who had been continually drunk for seven or eight days, could be sufficiently restored to his understanding by one night’s sleep, to enable him to dispose of his property with reason, especially when it is proved by another witness, that after a night’s sleep at his house; he cerned as drunk in the morning as he was the overnight. *92will be a proper matter for reflection anil enquiry with you”

The latter circumstance is cited as a fact, which is put in opposition to the first fact, both being assumed as such 5 now, though evidence may be irreconcileable, facts cannot be.

Upon considering Cue whole of the charge, it appears to me that its general tendency is to preclude that full and free enquiry into the truth of the facts, which is contemplated by the law ; with the purest intentions however, on the part of the worthy Judge, who receiving a strong impression from the testimony adduced, was willing that what he believed to be the very right and justice of the case should be administered.

I am not unaware of the difficulty of concealing all in dications of the conviction wrought on the mind by evidence throughout a long and complicated cause $ but the law has spoken, and we have only to obey. A new trial is awarded.