delivered the opinion of this court.
It appears from the record in this case, that at the trial of the cause in the county court, after the jury had been impannelled, the appellees, as the caveators of the will in controversy, claimed the privilege of opening and concluding the argument before the jury. This claim was resisted by the appellants, who maintained, that they were entitled, as the caveatees of the will, to begin and conclude the argument, upon these issues. The court below decided in favor of the position taken by the caveators, and whether they erred in the opinion thus expressed by them, is the question raised for our consideration, by the first bill of exceptions.
It appears from the proceedings, as exhibited by the record, in this case, that on the I6th of May 1846, the instrument of writing of the 17th of September 1844, purporting to be the last will and testament of John Townshend, was propounded for probate in the orphans court of Prince George’s county, by the appellants, as executors; that on the Sth of June, in the same year, the caveat and petition of the appellees was interposed, in which they aver and charge, that the pretended will was invalid, upon the two-fold ground, that the testator was, at the period of its execution, mentally incapable of making a valid deed or contract, and that the paper purporting to be his will, was procured from him by fraud or undue influence; and, in their petition, they prayed, that, for the purpose of trying the validity of the said pretended last will and testament, issues might be transmitted to Prince George’s county court, involving the objections presented by the caveat.
The appellants appeared in the orphans court on the 20th of October 1846; one of them, John B. Brooke, in his answer to the petition of the appellees, distinctly denies the allegations of the caveat, with respect both to incapacity and fraud, or undue influence, as therein contained, and the issues in dispute, and transmitted to the county court for the determination •of a jury, are predicated on an affirmation of facts, introduced *25for the purpose of impeaching the will by the caveators on the one side, and a negation of those facts by the caveaf.ee in his answer. And it appears to us to be perfectly clear, that in a case thus situated, the caveators are to be regarded as the assailants of the will; as the actors who originated this proceeding, and who were therefore entitled to be placed upon the record in the attitude of plaintiffs. And, assuming this to be the true position of the caveators, it results from the decision of the Court of Appeals, in the case of Kearney against Gough, 5 Gill & John., 457, that, they possessed the right to open and close the argument before the jury.
In that case, an action was instituted against the defendant, for a libel on the plaintiff’s wife. The defendant pleaded a justification as to a part of the libel, and contended at the trial, that inasmuch as he had justified the language charged to him in the declaration, the affirmative of the issue was upon him, and that he had the right to open and conclude the argument. But the court below refused the application, and the Court of Appeals, in concurring with this opinion, say :
“The decision is in conformity with the settled practice throughout the State,-giving to the. plaintiff on the record the opening and conclusion, except in cases of avowry for rent in arrear, in relation to which the practice is not uniform.”
The ruling of the court below upon the point presented in this exception, was, therefore, we think, correct; and we proceed to consider the questions raised for our examination, by the second bill of exceptions.
We are informed by this exception, that after the counsel for the caveators had made his opening speech before the j ury, the caveators insisted, that upon the issues which the jury were sworn to try, it was incumbent on the caveatees to prove the execution of the will, to try the validity of which the issues were framed, before the caveators could be obliged to offer any evidence to impeach its validity; and that this application was granted by the court below, who hold :
“That the instrument of writing to which the several issues relate, musí be in evidence to the jury, and the execution of it by the alleged testator, ought t.o be proved by the caveatees *26rather than the caveators, when it is to be read in evidence to-the jury.”
We cannot concur with the ruling of the county court as disclosed to us by this exception. The factum of'the will was admitted, and indeed assumed by the issues in the cause, and' the introduction- of evidence to establish a conceded fact, was an-act of supererogation, and therefore to be treated as irrelevant and inadmissible. The court was certainly correct in declaring, that it was indispensably necessary to place before the jury the instrument of writing, in reference to which- the issues were framed; but if the will was not produced in court by the register of wills, to whose custody it had been confided, it was the-duty of the caveators, who were the plaintiffs upon the record, and entitled to open the cause, to have coerced its production by a subpoena duces tecum,, directed to that officer. A' subpoena-of this character, would have been ordered by the court, on the-application of the caveators.
It follows from the views we have thus presented, with re-1 spect to the questions suggested by the second exception, that the evidence introduced, and proposed to be adduced, by thecaveatees in the third exception, was entirely irrelevant and inadmissible. It was proposed to prove, by the testimony of the attesting witnesses, the factum of a paper, the execution of which was admitted by the pleadings and issues in the cause. This could not be done; and the act of the court below, in excluding evidence, the aim and object of- which was to establish the execution of a will in this condition, cannot be complained of as error, because, according to the law of the case, as now enunciated, the testimony proposed to be offered by the-appellants, would be considered, in legal contemplation, as in all respects, incompetent. The ruling of the court, as.expressed in this bill of exceptions, must therefore be affirmed; but whether the law announced by the court below, with regard to the point intended to be reserved by that exception, assuming, that it was incumbent on the appellees to have proved affirmatively the factum of the will, be correct or not, has become an abstract question, upon which it is not proper for this court to express an opinion.
*27It appears from the fourth exception, that the caveatees produced a witness, who proved, that he had been a neighbor of the testator, and had known him well for twenty-five years; that he had often had dealings with him, and would never, during his acquaintance with him, have hesitated to buy from him, or sell to him, land and negroes, for any amount that might have been agreed on between them. This evidence was admitted without objection. The caveatees then offered to prove by the witness, that, in his opinion, based on the foregoing facts, and from his acquaintance with the testator, the testator was of sound and disposing mind, and capable of executing a valid deed or contract, during all the period of the witness’s acquaintance with him. The court, on objection interposed by the caveators, refused to permit the witness to express his opinion with respect to the capacity of the testator. An exception was taken to this ruling of the court, and the counsel for the appellants have insisted, that after the witness had proved, that he was for a series of years in the habit of frequent intercourse with the testator, in the way of business, and in the interchange of friendly offices, he might be required to express his opiuion, based on such observation and facts, in relation to the capacity of the testator.
The proposition advanced by the counsel for the appellants, is unquestionably correct, and the court below erred, we think, in the opinion expressed by them in this exception.
It is stated by the elementary writers upon this subject, that the attesting witnesses are considered in the law as placed round the testator, to protect him against fraud in the execution of his will, and to judge of his capacity; that the testator is intrusted to their care; and it is their duty to inform themselves of his capacity, before they attest his will; and it is on this ground, that these witnesses are permitted to testify as to the opinions they formed of the testator’s capacity, at the time of executing his will. And it is equally true, as a general proposition, that the mere naked opinions of other persons, not occupying the position of medical men, are inadmissible in reference to the mental capacity of a testator, whose will may be controverted.
*28But the testimony proposed to be submitted by the caveatees, to the jury as illustrative of the mental condition of the testator, was not the mere naked, isolated, unsupported opinion of the witness. The impression made upon the mind of the witness by the conduct, manner, bearing, conversation, appearance, and acts of the testator in various business transactions, for a long series of years, is not mere opinion, it is knowledge, and strictly analogous to the cases of personal identity, and handwriting, which are constantly established in the law courts, by the opinion and judgment of persons who have enjoyed the opportunity of observing the person, or handwriting sought to be identified, or proved. Mr. Greenleaf, in his Treatise on Evidence, says:
“ It is the constant practice to receive in evidence, any witness’s belief of the identity of a person; or, that the handwriting in question is, or is not, the handwriting of a particular individual: provided he has any knowledge of the person, or the handwriting.” 1 Greenlf. Ev., sec. 440.
In the case of Clary against Clary, 11 Iredell, 33, the late Judge Gaston, in delivering the opinion of the Supreme Court of North Carolina, upon a subject similar to the one now under consideration, says:
“ The judgment, founded on actual observation of the capacity, disposition, character, temper, peculiarities of habit, form, features, or handwriting of others, is not mere opinion: it approaches to knowledge, and is knowledge, so far as the imperfection of human nature will permit knowledge of those things to be acquired; and the result thus acquired, should be communicated to the j ury, because they have not had the opportunities of personal observation; and because, in no other way can they effectually have the benefit of the knowledge, gained by the observation of others.”
In the case of Grant vs. Thompson, 4 Con. Rep., 203, the Supreme Court of Connecticut held, that though the mere opinions of witnesses relative to the sanity of a party, are not admissible, yet their opinions, in connection with the facts on which they are founded, are admissible. The court said :
*29“The county court rejected the mere opinions of witnesses, relative to the defendant’s insanity, but admitted them in connection with the facts on which they were founded; and in doing this, they discriminated soundly and legally. This is not a novelty, but sanctioned by the usual practice of courts, in such cases.” They say: “Although it would be dangerous in its tendency to admit the uncorroborated opinion of a witness, relative to the operations of another’s mind, yet, when it is found to be presumptively supported by facts, it carries with if. a convincing weight. The best testimony the nature of the case admits of, ought to be adduced; and on the subject of insanity, it consists in the representation of facts, and of the impressions which they made.”
The same doctrine was maintained in a strong opinion, delivered by judge Duncan in Rambler vs. Tryon, 7 Sargt. & Rawles’ Rep., 92; and in Morse vs. Crawford, 17 Verm. Rep. 502. The court declared, “that, the law was well settled, and especially in that State, that a witness may give his opinion in evidence, in connection with the facts upon which it is founded, and as derived from them; though he could not be allowed to give his opinion, founded upon facts proved by other witnesses. ’ ’
So in Swinburn on Wills, 72, 2 Stark. Ev., 1279, (n.) it is said: “It is not sufficient for a witness to depose, that a testator was mad, or beside his wits, unless a sufficient cause can be given to prove this deposition: as that, he saw him do such acts, or heard him speak such words, as a person having reason would not have done or spoken.” Thus discriminating between mere abstract opinion, and opinion predicated upon, and fortified by facts, within the personal observation of the witness.
In the celebrated case of Wright against Tatham, 5 Clark & Fin., 670, it was held by the House of Lords, that letters written by third persons, since deceased, to a party whose will was disputed, and found among his papers, are not admissible evidence of his competency, without, some proof that he, himself, acted upon them; but it will be found, by an examination of the elaborate opinions, pronounced seriatim in this cause, that though the mere naked opinions of witnesses, would not have *30been considered as admissible, with respect to the capacity of a •testator, yet such opinions would become evidence in connection with the facts upon which they were founded.
Upon this subject Alderson, Baron, said : “The object of laying such testimony before the jury, is to place the whole life and conduct of the testator, if possible, before them, so that they may judge of his capacity; for this purpose you call persons who have known him for years, who have seen him frequently, who have conversed with him, or corresponded with him.
“After having thus ascertained their means of knowledge, the .question is generally put, as to their opinion of his capacity. I .conceive this question really means to involve an inquiry, as to the effect of all the acts which the witnesses had seen the testator do for a long series of years, and the manner in which he was, during that period, treated by those with whom he was living in familiar intercourse. This is not properly opinion, like that of experts, but is rather a compendious mode of putting one, instead of a multitude of questions to the witness under examination, as to the acts and conduct of the testator.”
We think, therefore, that the caveatees were entitled to the opinion of this” witness, with respect to the capacity of the testator, in connection with the facts upon which it was founded, and that the county court were wrong in rejecting this testimony. This question does not appear to have been heretofore directly adjudicated by this court, although the implication from the opinion in the case of Brooke vs. Berry, 2 Gill, 98, is, that evidence of this character would have been regarded as admissible.
It appears from the fifth exception, that after the parties had .offered in evidence a variety of proof, touching the mental capacity of the testator, and his competency to make a valid will, the caveators asked from the court two instructions, and the caveatees prayed the court to grant three instructions to the jury. The court granted, by consent, the first prayer of the caveators, and the first prayer of the caveatees; and also granted the second prayer of the caveators, and 'rejected the second .and third prayers of the caveatees.
*31The second prayer of the caveators, is in the following words : “That if the jury find from the evidence, that prior to the execution of the said will, the said testator labored under delusion as to the disposition of the property therein devised, then it is incumbent on the caveatces to prove his freedom from such delusion, at the period of the execution of the will.”
The counsel for the appellees, in maintaining the correctness of this instruction, have relied upon the principle, “that as the law presumes every one to be sane until the contrary is proved, it is on the other hand to be presumed, that a man’s mind remains unchanged; and when, therefore, lunacy or delusion has been once established, it is incumbent on him who alleges the validity of the act, to prove that it was done at a lucid interval.’ ’ Semel furibundus, semper furibundus presumitur. 2 Stark. Ev., 1276.
It is an error however to suppose, that the maxim : “Once insane, presumed to be always insane,” is unqualified in its character, or is of universal application. An examination of the authorities will show, that a continuing insanity is never to be presumed, where the malady or delusion under which the testator labored, was in its nature accidental and temporary.
In the case of Hix against Whittimore, 4 Medf. Rep., 547, the court say : “ There must bo kept in view, the distinction between the inferences to be drawn from proof of an habitual or apparently confirmed insanity, and that which may be only temporary. The existence of the former, once established, would require proof from the other party, to show a restoration or recovery; ami in the absence of such evidence, insanity would be presumed to continue. But if the proof only shows a case of insanity, connected with some violent disease, with which the individual is attacked, the party alleging the insanity, must bring his proof of continued insanity, to that point of time which bears directly upon the subject in controversy: and not content himself, merely, with proof of insanity at an earlier-period. ”
In Cartwright vs. Cartwright, 1. Phillim. Rep. 100, it was held, “that where habitual insanity in the mind of a person is established, that the party who would take advantage of an *32interval of reason must prove itrecognising the distinction between habitual and temporary delusion, with respect to this doctrine of presumption.
By referring to the language of this prayer, it will be seen, that the court instructed the jury, that if they believed from the evidence, that prior to the execution- of the will, the testator labored under delusion as to the disposition of his property, it was incumbent on the caveatees to prove that he was liberated from such delusion at the period of the execution of his Will; thus assuming that the delusion under which the testator labored was habitual in its character.
This the court could not do, without encroaching upon the rights of the jury.
It is no answer to this view of the instruction granted by the court, to say, that the evidence presented a- clear case of habitual delusion, and showed that the morbid image of which this testator had become the victim accompanied him through- the greater portion of his life. Still, the character of the delusion was a question within the exclusive province of the jury,-and the court erred in assuming as a fact, that it was permanent or habitual.
The case of the Charleston Insurance Company vs. Corner, 2 Gill, 426, is conclusive upon this point. In that case, the court said.
“The jury doubtless would have found these facts according to the testimony, but the sufficiency of evidence to satisfy a jury, or the circumstance, that it is all on one side, does not authorise the court to direct the jury, that it proves the fact. They have the power to refuse their- credit, and no action of the court should control the exercise of their admitted-right, to weigh the credibility of evidence.”
We have no hesitation in declaring, that the Court were correct in rejecting the second and third prayers of the caveatees.
There certainly was testimony in the cause, conducing to prove, that the paper in controversy, was the direct consequence and offspring of the delusion under which this testator labored; a delusion calculated to pervert his judgment and to control his will, with- respect to the disposition of his estate; and assum*33ing this to be true, it is perfectly clear, that he could not be considered as possessing testamentary capacity, although, upon other subjects, lie may have been rational and sane.
In Shelford on Lunacy, 296, it is said : “Proof of the existence of partial insanity will invalidate contracts generally, and will be sufficient to defeat a will, the direct offspring of that partial insanity, both in the courts of common law, and in the ecclesiastical courts; although the testator, at the time of making it, was sane in other respeets, upon ordinary subjects.”
We think the court were correct in the opinion expressed by them in the first exception, and in rejecting the second and third prayers of the appellants, as exhibited in the fifth exception. We also alSnn the judgment of the court in the third exception.
But we think that they erred in the opinion expressed by them in the second and fourth exceptions; and in granting the Second prayer of the appellees, in the fifth exception.
The judgment of the county court is therefore reversed, and & procedendo will be awarded. For although the jury rendered a verdict in favor of the caveators, upon the issues involving the questions of fraud and undue influence, it is impossible to affirm that a different result might not have been produced, if there had been no error in the rulings of the court, below, with respect to the capacity of the testator.
JUDGMENT REVERSED AND PROCEDENDO AWARDED.