The opinion of the Court was delivered by
Kennedy, J. —We are unable to perceive the relevancy of the evidence set forth in the first bill of exception. The specific object of offering or admitting it, is not stated; but still unless it appear to be in some way material to the issue joined, it ought not to have been received, after having been objected to by the counsel for the plaintiffs; and more especially ought this rule to prevail and be adhered, to, when there is reason to believe, that such evidence may either tend to confuse or mislead the jury. The issue here was devisavit vel non: in support of the affirmative proposition, contained in this issue, the plaintiffs had given evidence going to show that the instrument in question, purporting to be the last will and testament of Joseph Clark, was duly executed by him as such; *319which cast the burden of repelling.the evidence thus given by the plaintiffs, upon the defendant, by his giving other evidence; either going to show that Joseph Clark had not signed the instrument as his will, or if he had, that he was non compos mentis at the time, and, therefore, incapable of making a will; or that he was constrained to do so by improper force of some kind, and consequently not his voluntary act; or was induced to do it through the influence of fraud and circumvention practised upon him, and for this reason the writing was void: but the evidence excepted to did not tend to prove any of these things, and, therefore, ought not to have been admitted. It, at most,.only went to show the singular humour and temperament of the man; and that it was difficult, if not impossible, for those around and connected with him, to please him at all times ; which certainly would furnish no good reason for setting aside what he had committed to writing, and had declared and published to be his last will and testament.
The second bill of exception is the next error assigned. The evidence, to which it refers, was offered expressly, as it appears from the bill of exception, for the purpose of showing the insanity of Joseph Clark at the' time he signed the writing in question; but it is not easy to imagine how such a declaration made by him some time before, could be regarded as evidence of his being insane then; nor indeed of his being so at any time. It might be evidence of his being very much displeased, at the time when he made it, with his wife for some reason or other; and that he was therefore resolved to leave her nothing at his death that he could deprive her of; but surely, instead of bespeaking insanity on his part, it rather went to prove intelligence, and a consciousness, at least, of his conjugal situation in life, — his being the owner of an estate, and his power to bestow it upon his wife or otherwise as he pleased. According to this evidence, which was admitted notwithstanding the objection of the plaintiffs’ counsel to its being given, he said “ he had taken an oath his wife should never have one centwhen he said this, as the witness testifies, he was in a high state of excitement against her. It may be evidence of his great irritability and intemperance of feeling; but cannot well be considered evidence of insanity. But even, if it were, it was not so of his being insane at or about the time of signing the writing in question; and the circumstance of his not having carried such rash and intemperate determination into effect, in making the writing in question here, whereby, instead of attempting to do so, he has given a considerable part of his estate to his wife, would go to prove that he was in this respect, at least, restored to a state of sanity when he made it. Men of choleric constitutions, such probably as Joseph Clark would seem to have been, are considered in law as capable of making wills and deeds, and thereby disposing of their estates as those possessing the most temperate, sedate and discreet minds. For this purpose, it is not *320requisite that a person should possess any great degree of strength of mind: nor is it necessary that he should, at the time of making a deed or a will for such purpose, retain all the force of intellect, which he may have had at any former period of his life : it is sufficient if he be capable of bringing to the view of his mind all his relations and other persons with whom he has been acquainted in life, as also the nature and extent of his estate, knowing what it consists of, and that he has the power to dispose of it as he pleases. In other words, if he still be possessed of mind sufficient to comprehend and advise as to the ordinary transactions of his life, and to give directions how his business shall be conducted and his estate managed, he may very well be considered competent to make a will disposing of all his estate; and this much must be presumed of every man until the contrary shall be clearly proved.
The only remaining error is the third bill of exception to the opinion of the Court below, overruling the objection of the counsel for the plaintiffs, to the evidence therein mentioned as offered by the defendant. The offer was to read in evidence certain specified parts of a former writing, made by Joseph Clark, purporting to be his last will and testament, for the purpose, as it would seem from the bill of exception, of proving that he was insane when he made the writing in question here. Though the provision made by those parts of the former writing offered and read in evidence, for laying off a small portion of his farm for a burial- ground, and the direction thereby given to build a house in a certain corner of it, without specifying the design of the house, may he thought somewhat singular, and to have proceeded from some peculiarity of mind in relation thereto, yet per se it cannot be said, that they go to show that he was insane even when he directed them to be inserted, and still much less do they tend to prove any symptom of the kind, when he left them out of the writing now in question. Those parts, therefore, of the former writing were improperly admitted in evidence to the jury. Such matters are only calculated to distract, or to mislead their minds in relation to the real point in issue; and being thus of a dángerous tendency, ought not to have been received.
The Judgment is therefore reversed, and venire facias de novo awarded.
Judgment reversed, and a venire facias de novo awarded.