A bill was filed in the circuit court of Ohio county, to contest the validity of the will of Daniel Steen-rod, deceased.
The court made an order that a jury should be empanneled “at the bar of the said court, on the chancery side thereof, to ascertain and determine by their verdict the issue whether the testamentary papers admitted to probate in the said court, on the law side, at the May term thereof, 1864, as the will of Daniel Steenrod, deceased, late of Ohio county, be, or either, or any of them, be the will of the said Daniel Steenrod, deceased, or not.
A jury was accordingly empannelled and sworn well and truly to try the issue whether the testamentary papers admitted to probate in the said court on its law side, at its May term thereof, 1864, as the will of Daniel Steenrod, deceased, late of Ohio county, be, or any, or either of them, be the will of the said Daniel Steenrod, deceased, or not.
*636The jury found that “the papers before us, purporting to be the last will and testament and codicils thereof, of Daniel Steeurod, deceased, are not, nor is either of them, the last will and testament, and codicils thereof, of said Daniel Steen-rod, deceased.” The court rendered a decree in accordance with the verdict of the jury, from which an appeal has been taken to this court.
There are numerous bills of exception on the record, and four causes of error are assigned by the' appellants in their petition.
The first cause of error assigned is that, the court erred in admitting the evidence set out in petitioner’s first bill of exceptions. The petitioner’s first bill of exceptions recites, “ that on the trial of the issue in this cause, the defendants called as a witness Eliza Steeurod, and ofiered to prove by her that the testator, after the execution of the will, informed her that the Thompsons, meaning Geo. W. Thompson and Elizabeth his wife, a devisee in the will, did not want him to give anything to the children of Edward Steen-rod, deceased, son of the testator; that this evidence wa3 ofiered for the purpose of proving the declarations of the devisees; which evidence was objected to by the counsel for the plaintiffs in the issue, but the court overruled the objection and decided that the declarations, of any of the plaintiffs in the issue, was proper evidence, and admitted the evidence so offered to be given.”
The ground on which this evidence was admitted, as stated by the court in the bill of exceptions was, that the declarations of any of the plaintiffs in the issue, was proper evidence. How far this statement is correct is not material to enquire, because the bill of exceptions does not disclose an effort to prove the declarations of any of the plaintiffs. It was an effort to prove that the Thompsons did not want the testator to give anything to the children of Edward Steenrod, deceased, son of the testator. How the Thomp-sons had manifested their wishes does not appear. There is no effort to prove their acts or declarations. It is simply an effort to prove the supposed fact by proving the. declara*637tion of the testator made in respect to it. This is hearsay evidence, and is clearly improper. So far as it was intended to prove the acts, declarations or wishes of the Thompsons, or either of them, by proving the declaration of the testator, the court erred in its ruling.
It is claimed, however, that the evidence is proper to prove the declarations of the testator for the purpose of tending to prove that the will was procured to be executed by undue influence.
The authorities fully sustain the position, that such declarations are admissible in evidence, for the purpose of showing the state, condition and operations of the mind of the testator at the time of the execution of the will. Robinson vs. Hutchinson, 26 Vt. Rep., 46; Rambler vs. Tryon, 7 S. & Rawle, 94; Irish vs. Irish, 8 S. & Rawle, 373; McTaggart vs. Thompson, 14 Penn. State Reports, 149; Nelson vs. Oldfield, 2 Vernon, 76; Matthews vs. Warner, 4 Ves. Jr., 186; Pemberton vs. Pemberton, 13 Ves. Jr., 290.
It was therefore proper that the evidence of the declarations of the testator should go to the jury, to be given by the jury such weight as they might see proper, for the purpose of showing the state, condition and operation of the mind of the testator, but for no other purpose. This class of evidence is dangerous in its character, and is to be received with great caution. The only legitimate purpose of this sort of evidence is to show a condition of mind in which its free agency may be easily overcome by the improper influences of those surrounding the testator, and to lay the foundation for the introduction of other and more direct testimony showing that such improper influences were in fact exerted. The declarations themselves are no evidence that improper influences were exerted.
If the declarations of the testator had been proved for the purpose of showing the condition of his mind, such evidence would have been properly admitted. But the bill of exceptions expressly negatives this idea, and certifies that the evidence was offered for the purpose of proving the declarations of the devisees, for which purpose, as before *638stated, it was clearly improper and should not have been admitted.
The second cause of error assigned is, that the court erred in rejecting the evidence set out in petitioners’ second bill of exceptions; and the third cause of error is the same as the second, only it applies to the third bill of exceptions.
The second and third bills of exceptions are substantially one and the same thing, but vary somewhat in form. It appears from bill of exceptions No. 2, that the testator had executed a codicil on the 25th day of January, 1864, which was in evidence before the jury, in which he stated that he had theretofore made his will, and a codicil thereto relating to his negroes, and especially to his servant Leann, in which he had bequeathed to her ten shares of the bank stock of the North-western Bank, and revoked the said bequest and bequeathed the said stock to another; that for the purpose of explaining the reference made in this codicil to the bequest- to Leann, the propounders of the will and codicils -offered to prove, and were allowed to prove by a witness, that the testator, after the date of the will in this controversy, in the presence of the witness, destroyed and caused to be destroyed by burning, a previous will and another paper not described by the witness.
The propounders of the will then asked the witness to state what was said by the testator at the time the said papers were destroyed, in reference to the nature of the said papers, and what they were; which was objected to, and the court sustained the objection. It was competent for the propouuders of the will, for the purpose named in the bill of exceptions, to prove, if they could, that the testator had, before that time, made a will or codicil with the provision in it described in the codicil of January 25th, 1864. And it was competent for them to prove, as they did, as shown by this bill of exceptions, the destruction of the previous will. And it was also competent for them to have shown the destruction of a codicil, -such as is described in the codicil of January 25th, 1864; but it was not competent for them *639to show the destruction of any other paper, if it had been objected to by the other side.
The propounders of the will having proved- the destruction of the will, as they had a right to do, and having proved it without objection from the other side, the destruction of the other paper referred to in the bill of exceptions, had proved an act of the testator pertinent to the inquiry-before the jury, and were entitled to give evidence of the declarations of the testator made at the time of the act, in relation to the act as part of the res gesta to go to the jury, to be considered by them for what they might be worth in their estimation. Beckwith vs. Mollohan, 2 W. Va. Rep., 483, and authorities there cited. The court, therefore, erred in refusing to allow the witness to answer the question asked him.
- The fourth ground of error assigned is, that the court erred in overruling the petitioners’ motion to set aside the said verdict and grant a new trial of the issue. It is claimed first, that the matters disclosed by the affidavit of George W. Thompson, showed such a surprise on the trial as should have appealed to the court to set aside the verdict or grant a new trial. It does not appear that the counsel for Thompson asked the court to wait for his return, or stated to the court that they desired to offer other evidence, nor does it appear but what the evidence was closed with their consent. I think the matter set up in this affidavit shows no ground for a new trial.
It is claimed secondly that the misconduct and want of proper qualification of the juror Berryhill, were good cause to set aside the verdict. The witness Aaron Porter testifies that he had a conversation with Berryhill, on the second day of the trial, at recess at noon, in which conversation Berryhill said Mr. Thompson would lose that trial. Ber-ryhill himself says thaf he did not say anything to Poi’ter. about Thompson losing the suit, during the trial or before. This places the oath of Berryhill against that of Porter, and disposes of the question as to the misconduct attributed to Berryhill during the trial.
*640This same witness, Porter, states that he had a conversation with Berryhill in the month of May preceding the trial, in which he says that Berryhill said “it was no use for Mr. Thompson to law, — it was not Mr. Steenrod’s will, it was Mrs. Thompson’s.”
The witness Ezekiel Ball swears that he had a conversation with Berryhill, he thinks in September before the trial. JETe says that in that conversation Berryhill said, “ They are going to break the Steenrod will.” ' Witness told him that he did not know. Berryhill said he thought it was right that it should be broke. Witness told him it was a pity that they should go to law about it. Berryhill said they would break the will, for Thompson had drawn the will himself; Berryhill said he had been informed that Mrs. Thompson had informed her father how to make the will; Berryhill said that they would be able to prove that Thompson had drawn the will.
Mrs. Hettie Porter, another witness, says she had a conversation with Berryhill, she thinks in May.before the trial; she says that Berryhill said “it was no use for Thompson to sue, for he would get beat; it was not Mr. Steenrod’s will, it was Mr. Thompson’s will.”
Berryhill says that he does not remember any of these conversations, but that he may have had them, as the subject was talked about considerably. He says he cannot say what was said to him, or what he said in reply. He further states that he had not made up or expressed an opinion before, or at the time he was sworn as a juror; that he knew nothing about the case that he could put any confidence in until he heard the testimony. Berryhill further states that at the time pf the trial, he felt no bias against Judge Thompson, Mrs. Thompson, or Mrs. Carter. Upon this evidence, was Berryhill a competent and an impartial juror?
In the case of Ramage vs. Ryan, 23 E. C. L. Rep., 296, a rule was obtained to set aside the verdict of the jury on the ground that one of the jurors had come to the trial predetermined to give heavy damages against ■ the defen*641dant. The rule was supported by an affidavit of two members of the college of surgeons who were present at the trial of. the cause of Ramage vs. Wakley; that at the conclusion of that trial, a person whose name was not tben known to them, came up and expressed his surprise at the small amount of damages which had been given to the plaintiff in that cause, and at the same time said: “I shall be on the jury, to-morrow, and I will take care that the verdict does not go that way,” or words of like effect; that one of the deponents then remarked, that the individual addressing them had not yet heard any evidence; to which the individual l-eplied that “he had heard quite enough, and that his mind was made up as to the verdict he should give;” that on the following day the deponents were again respectively .present in the court, and that when the cause of Ramage vs. Ryan was called for trial, the deponents saw the individual who had on the previous day made the before-mentioned remarks to them, sitting as a juror on the trial of that cause; that having reason to believe the individual in question was John Milton Hart, of Mornington Crescent, they went to his residence on the 31st of October, and having an interview, asked if he had been one of the jurymen on the trial of this cause; he said he admitted that he had; that he had conversed with the deponents at the door of Westminster Hall on the 25th of June, on the subject of the verdict in the cause of Ramage vs. Wakley, and recollected the remark he then made; that he supposed the deponents had come to him about a new trial in Ramage vs. Ryan; and that he knew something that would get a new trial, or words to that effect.
The affidavit of Hart was produced, in which the expressions alleged to have been used by Hart at his house, on the 31st of October, were altogether denied, and in which Hart explained the conversation in Westminster Hall, by deposing that his words were, “Well, I am surprised at such small damages; had I been upon the jury I certainly should have given very heavy damages. I am upon the jury tomorrow.” That no other words escaped him, and that he *642never said, “I will take care the verdict shall not go that way to-morrow.” The four judges constituting the court, were unanimous in refusing a new trial.
In the case of the Mayor &c. of Columbus vs. Gatchins, 7 Georgia Reports, 143, the defendants moved to set aside the verdict of the jury for the plaintiff, on the ground, among others, that Cook, one of the jurymen, had formed and expressed an opinion in favor of the plaintiff, previous to the trial, which was unknown to the defendants or their attorneys.
In support of this ground the defendants introduced the affidavit of one Andrew P. Jones, who swore that on the morning before the trial, in a conversation with Cook, he remarked “that the city council ought to have removed Crawford away from Dr. Chipley’s when he was first found there; that it was a long time before Crawford took the small-pox, and if he had been removed at- once he would in all probability not have taken it at all.”
The plaintiff, on the hearing, produced the affidavit of Cook, the juryman, who swore that the remark he made to Jones was a casual one founded upon rumor, and to the effect, “that if the council thought the negro would spread the small-pox, they ought to have put him off in the hospital;” that he had forgotten the conversation until re-called by the affidavit of Jones, and that in making up his verdict •he was governed solely and exclusively by the evidence, under the charge of the court.
The court say, “ This motion is supported by the affidavit of Jones, which does not establish any settled opinion entertained or expressed by the juror against the defendants, but all improper inferences which might possibly be drawn against the verdict from the statement of Jones, are fully rebutted and explained by the affidavit of the juror himself, in support of the verdict.”
In Taylor et al. vs. Greeley, 3 Maine, 204, the defendant moved to set aside the verdict rendered for the plaintiffs, for alleged prejudice and partiality of one of the jurors. In support of- the motion it was proved that to two different *643persons the juror bad declared a short time before the trial, that he knew all about the cause, and that the plaintiffs would and ought to recover; aud that to another he said it would be a hard case for the plaintiffs if they should fail in the action. It was admitted, that at the trial, the defendant’s counsel inquired of the juror whether he had formed any opinion upon the merits of the case; to which he gave satisfactory answers in the negative; and the counsel declined having him examined under oath. The juror himself deposed that he had no recollection of ever having used the language imputed to him, though he might have done so, and that when he went upon the pannel he was unbiased, unprejudiced and impartial. The court said that .under the circumstances of this case, they could not sustain the motion. The defendant had not thought it necessary to have the juror interrogated under oath, as he might have done, but declined it, and was satisfied with his answei’s, reposing confidence in his integrity.’ The juror himself had sworn that he was impartial, and not under the influence of any impure motives, aud the expressions he is said to have, used may be explained and understood without any impeachment' of his motives, and consistently with pure intentions and a desire to do justice.
In Poores’ case, 2 Va. cases, 474, the prisoner was convicted of manslaughter and sentenced to two years imprisonment in the penitentiary. After the verdict, the prisoner moved for a new trial, aud introduced three witnesses, all of whom proved that one of the jury who had found the verdict declared, a few days before the sitting of the court, that from what he had heard by flying report, if he should be on the jury/and the same should prove true, he should be for hanging the prisoner; they also stated that the juryman said he had been summoned to attend the court as a venireman, and hoped the prisoner would refuse to be tried by him. The juryman referred to was sworn before he was elected, and said that he had never heard the testimony on any former trial, nor had any person who did hear it, given him an account of what had been proved that he recollec*644ted; but that be had heard various accounts about it as rumored in the country; that notwithstanding anything he had heard, his mind was free, unbiased, and without prejudice either way, and that he felt no doubt but that he could give the prisoner a fair and impartial trial according to the evidence and law in the case, as the same should appear before him in court, without regard to anything he had heard out of court. The superior court refused to grant a new trial, and the general court unanimously refused to allow a writ of error.
The Virginia cases all sustain the principle with uniformity, that an opinion formed, must be deliberate and decided, to disqualify a juror. Curran’s case, 7 Grattan, 619; Kennedy’s case, 2 Va. Ca., 510; Munford Smith’s case, 2 Va. Ca., 6; Armstead’s case, 11 Leigh, 657; Osiander’s case, 3 Leigh, 780.
I think, therefore, upon the authority of the cases cited, that the verdict cannot be set aside on account of the alleged partiality of the juror Berryhill.
And lastly, it is claimed that the verdict was plainly contrary to the evidence. We deem it improper to express any opinion on this point, as in the view we take of the case, it will have to be tried over again, before another jury. We are of the opinion, for. the errors committed, as shown by bills of exceptions one, two and three, that the judgment of the court below must be reversed with costs to the appellants, the verdict of the jury set aside, and the cause remanded to the circuit court of Ohio county for a new trial to be had therein.
The other judges concurred.Judgment reversed.