Opinion and Dissent.
The point concerning which my associates and myself do not concur, is the important question, whether the jury had any sufficient ground for deciding against the validity of the paper purporting to be the last will of *334Jeconias Singleton, deceased and which had been established as such, by the County Court of Woodford.
This question is divisible into three subordinate questions — to wit:
First. Was there any rational ground for a deduction by the jury, that the testator had not a general capacity sufficient to enable him to make a judicious and valid disposition of his estate?
Second. Did the facts authorize a belief that the will had been procured by the fraud, or undue influence, of any of the devisees?
Third. Did the evidence justify a conclusion that the testator’s conduct towards his son William was the offspring of an insane aversion to him, or of an insane delusion concerning him?
A thorough and anxious analysis of the record, has impressed on my judgment a strong conviction, perfectly satisfactory to myself, that all the testimony, when carefully considered and rightly understood, leaves no rational ground for the opinion, either that the testator, when he published his will, labored under legal incapacity, general or special; or that his will was the product of fraud or sinister influence; or that it "was not, in every effectual sense, the voluntary and well considered act of a disposing mind.
And therefore, as I cannot agree to approve the verdict of the jury on the special issue of devisavit vel non, and as, more especially, the opinion just delivered presents some imposing reasons for sustaining the jury — I feel compelled to suggest some of the considerations which force me to an opposite conclusion.
First. As to the testator’s general capacity: it does seem to me that, no experienced and rational mind can deliberately and dispassionately doubt. And I do not understand my colleagues as intimating any doubt upon that question.
The testator’s widow was the chief, and, as I think, only material witness as to this first point. She frankly admitted that, on account chiefly of her son William, who seems to have been the darling of her heart, she felt a strong leaning against the will, and was anxious *335to have it set aside, as unequal and unjust. And even her testimony, considered altogether, show's clearly, in my view, that the testator’s general capacity to dispose of his estate, by will or otherwise, was always sufficient when he was relieved from the effects of .intoxication. She expressed the opinion that his mind was never exactly right since Hopkins’ campaign, in the year 1812! But the reasons suggested for' that opinion are, to my mind, altogether insufficient to allow even a suspicion of general incapacity; and they are even, as I think, not sufficient to authorize the inference of partial insanity. Indeed, all the facts proven by her, amount only to this — that her husband, in her own strong language, “ drank amazing hard;” that, when under the distracting influence of long intoxication, he was sometimes erratic, and imagined, as most persons in a similar condition frequently do, that he saw things which his natural eyes did not see, and was beset with perils which did not exist; that his passions were sometimes unreasonably violent, and especially as to William — and therefore, she considered him sometimes insane. She testified that the family endeavored to conceal from the world the testator’s intemperate habits; that he “generally drank at home;” that, when drunk, “ he was like a man deranged.” She “sometimes thought it was from di’ink;” she did “not think he was constantly so;” she “ thought it an ungenerous will among his children;” that she also thought it unjust to herself, and that, she did “not feel reconciled to it.” And these were “.the reasons why she was opposed to it.” She thought “ his drinking was sometimes “ the cause of his derangement and violence among his “negroes” — “he concealed from (her) the fact that he had made a will, until three or four days before his death.”
Whatever effect should be given to. this testimony— it can be admitted as proving only — what characterizes the conduct of most habitual drunkards — violent passions and occasional derangement, and even optical illusions, during and some time after a season of intoxication.
But Mrs. Singleton does not deny that her husband *336generally managed his own large estate; that he made his own fortune, and continued, to his death, to increase it, and that he was sane when perfectly well and sober, unless, as she seemed to think, his conduct to William was evidence of insanity. And the i’e fore, even if the only testimony in favor of the validity of the will, had been that of the writer of it — proving—as it does — beyond a rational doubt, that he was then perfectly sane and self-possessed — I should not doubt that, so far as general capacity was alone concerned, the jury could have had no pretext for deciding against the will.
But there was much more, and very strong, testimony in favor of the testator’s capacity.
Allen, who was the testator’s overseer in 1833 — when, according to Mrs. Singleton’s opinion, he was as insane as ever he was — deposed that, he “ thought he managed “ things on his farm well;” and said also — “ I was much “ pleased with him as an employer — 1 have seen him “mad, but did not think him crazy.” And this witness had been an observer of some of the scenes and acts which Mrs. Singleton seemed to consider as proofs of an insane mind. But he did not make any such deduction: he knew the cause to be occasional passion and drunkenness.
William B. Blackburn deposed, that he had been a neighbor and intimate acquaintance of Col. Singleton, the testator, ever since the year 1812; “had been his “ counsellor at law for many years; had transacted bu- “ siness with him, at various times, and on a variety “of subjects; had been associated with him in political “ contests; and never saw any act, or heard any expres- “ sion from the testator, from which he would infer the “slightest mental derangement; but, on the contrary, he “ believed he was an industrious, economical, and enter- “ prising man.”
Thomas Bullock deposed that he had known Col. Singleton “ intimately ” for forty years, during twenty of which he had “lived a neighbor to him;” and that it “ would never have entered into his mind that he was “the least deranged;” he had “had a great many deal- “ ings with him, and frequent conversations on religious *337“ and other subjects ” — and, for some years before his death, he had met him frequently in Versailles, and “had discovered no alteration in him.”
Dr. Blackburn, who had been the family physician of Col. Singleton about twelve years before his death, and had, afterwards, “a common acquaintance” with him until his death, deposed, that he “ had never observed “ any symptom of derangement.”
Thomas Helm, who had lived “ about two miles from “ Col. Singleton, the last thirty years, and had known “ him well ” — deposed that, though he “ had a great “ many curious ways ” — “ he made the best crops in the neighborhood, and got the best prices for them — was a skilful trader,” and had not, as this witness “ supposed,” “ an unsound mind.”
Bernard Giltner had been well acquainted with Col. Singleton, “for the last twenty years” — had had frequent conversations “ with him on religious and other “ subjects — and believed he was as free from insanity as “ any man.’'’
David Humphreys had frequently conversed with Col. Singleton, from 1832 to the end of 1835 — about currency and banks and making his will; and considered him, at all times, cautious and prudent — never manifesting any symptom of unsoundness of mind. He also deposed that the testator had told him that he had been anxious for a reconciliation with William; but that he never should have any thing more of his estate, because he had treated him “ badly,” and had produced “ confusion in his family.”
John Garret, about thirty years old, had known Col. Singleton from his (witness’) infancy — “had seen him in all the relations of life ” — had never suspected “ any “ derangement of mind, and had never heard such an “ intimation.”
William Barr had lived in a house of Col, Singleton, from 1823, “many years;” had “transacted” much business with him, and never heard or suspected that his mind was unsound.
George M. Pinkard, a subscribing witness to the will, had been well acquainted with the testator from 1822; *338had occupied one of his houses in Versailles, as a store house-for vending goods; had done much business with him; never discovered any unsoundness of mind, nor any “ change whatever as regarded his capacity for business;” and also deposed to facts, occurring at the time he attested the will, which exhibit intrinsic evidence of a'degree of intelligence, self-possession and caution, .rarely displayed on similar- occasions.
Samuel Wilson, another attesting witness, and who wrote the will, had been the testator’s counsellor and attorney at.law; was intimately acquainted with him, and 'Was always pleased to converse with him;-when requested by the testator to write his will, and informed that he desired as much secrecy as possible, the witness ¿appointed a night for the testator to visit him, for the purpose of having the will carefully prepared; he attended punctually at the appointed time;, was cool and perfectly rational; conversed freely, and very intelligently, about the dispositions he intended to make of his estate, and the reasons which operated on his judgment. The will mas written exactly according.to the testator’s suggestions, but not-finished until next morning after it was commenced; and the testator then desired, for very satisfactory and prudential reasons, to postpone, for several days, the publication of the will; and a future day for meeting in Versailles, for the purpose of signing and attesting the will, was fixed; and the testator appeared at the precise time and place .appointed; and, after much intelligent conversation, and the manifestation of unusual caution and prudence, she published his will, in' the presence-of Wilson and Pinkard, who attested it.
Wilson had no doubt of the testator’s capacity, or of his freedom of volition.. And the various and minute conversations and other . circumstances proved by him, -cannot be reconciled with unsoundness of mind, or with -any want of self-possession and self-will at the time of publication.
Now, it does seem to me, that no intelligent and impartial mind, acquainted with the “ ways of men,” can consider all the testimony carefully, and féel a rational doubt — though the testator was sometimes erratic and *339violent at home, when under the influence of strong drink and its consequences — that nevertheless, when he was from home, and perfectly free from the effects of ardent drink, he was as sane as other men; and that, when he made and published his will, he had, unquestionably, a disposing mind, so far as general capacity to manage and dispose of his estate was essential.
Second. There is, in my judgment, no fact which could authorize a rational deduction that, the will was produced by the influence or fraud of any of the-devisees: on the contrary, there is much reason to believe that, it is just what the testator had, for a long time, coolly and intelligently resolved that it should be. Arid, as there is no testimony which can impeach the will for fraud or extraneous influence, I will proceed to the last point.
Third. No doctrine of either law or metaphysics is more liable to misconception and abuse, or has been oftener misunderstood and misapplied, than that of monomania, or insanity on one subject whilst there is perfect sanity on all others.
And, in my opinion, the total misapplication of it was never more conspicuously and fatally illustrated, than by the verdict in this case, if this matter be assumed as the ground of that verdict.
The testator’s conduct towards his son William, does not appear to me to exhibit any characteristic symptom-of particular insanity. It is conceding enough, perhaps-too much, to admit that it was extravagant and unusual in constancy and intensity. But surely every passionate, suspicious, and even unreasonable man,, is not therefore insane. And, though insanity is delusion, all delusion even, is not insanity: far from. it. All error is delusion; and in religion, politics, and the common affairs of domestic life, there always has been among men far from being insane, a species of delusion degenerating often into fanaticism. But the law will not, on this account merely, permit the orthodox to stultify the heretical.
The testator suspected his son William of conduct' which he looked on with peculiar indignation and horror. I do not know that his suspicions were without rational *340foundation. There is no testimony to that effect. Nor can I admit that the father’s extreme sensibility on the subject °f such a supposed breach in his household, committed by a favored son, who was a professing Christian, and a co-member with himself in the same church, was any proof of insane delusion, or insane aversion. William certainly deported himself rudely and rebelliously towards his passionate and venerable father. He told his mother that he would cut his throat if he was not his father. When about his father’s dwelling, he sometimes sang spiritual songs in a boisterous and ludicrous manner, for the purpose of convincing his father, as he said, that he was not with any of the negroes. He said to Hurst, that they had been dealing with “ damned rascals” — alluding, as the witness understood, to his father and the other members of the church of which he had himself been a member, and for desiring his expulsion from which, as an unworthy member, his father was considered by some, as insane.
He also spoke of his father to others, in a manner equally profane and contemptuous. He told Hurst, that one of his father’s slaves had dreamed that he had gone to heaven, and his master was not there. And he admitted to William Barr, that once, when his father was in one of his fields with some of his slaves, he (William) being near, said, in a loud soliloquy, “I see some negroes who have been telling damned lies on me, and I will have their hides;” and then naming one, and pointing his gun at him, said, “I will have that fellow’s hide”_ when the negro thus menaced ran off He then said, “ I see another,” and pointing his gun at him, he run off also; and thereupon all of them ran out of the field, their old master with them.
And Ban’ also testified, that ‘-‘his best impression was,” that William told him “he pointed his gun at the old man, but of this he was not certain.” « William said it was all in fun.”
This conduct and these conversations on the part of William, were after his expulsion from his father’s house. But they show his temper, and'principles; and furnish some reason for the will, so far as he is concerned.
*341The desire to expel such a son from the church, and the actual expulsion of him from the father’s own fireside, do not, to my mind, afford any evidence of insanity. Nor does it appear to me that — William being a hopeless old bachelor, and having been provided with a tract of land and slaves and other estate amply sufficient for his comfortable maintenance — the fact that his father gave him nothing more by his will, but devised his estate to those of his children who had been more prudent and respectful, and had wives and children, is no proof of insanity,irrational hostility, or even injustice.
But here doubtless was the ground on which the verdict was returned against the will.
I cannot think that such a verdict should pass the ordeal of this Court — not only untouched, but sanctioned.
I do verily believe, that such a verdict, in such a case, will tend to render insecure and comparatively delusive the cherished right, given by law to every free man of sound mind and legal discretion, to dispose, at his death, of the estate which he had acquired while living, and the chief end of toiling for which, may have been — as with many — the luxury of giving it, at his death, to those he loves or prefers. There is no doubt in my mind, that any of the witnesses, on either side, would, without any hesitation, or apprehension, have been willing to make a contract with Colonel Singleton, for any part of his estate, on the day of the publication of his will, or at any other time, when he was, as he generally was when from home, perfectly sober.
Feeling strong conviction that there was no rational foundation for the verdiet; and presuming that the chief reason for it must have been that the will was considered unequal, and therefore unreasonable, by the jury, and that the old widow, and perhaps the concluding counsel also, made powerful appeals to their sympathies — I cannot agree that such a verdict shall receive my official confirmation.
It is my opinion that, by approving it, more credence is given to it, than either reason or law requires, or justice and right will allow. But my colleagues think otherwise, and I feel proper respect for their opinions.
*342All the testimony against the will, and of which the widow’s is the substance and soul, tends rationally to show only what may be perfectly consistent with a disposing mind at the time when the will was published. And the testimony of the subscribing witnesses, and that of the other intelligent neighbors and long and intimate acquaintances of the testator, should, in my opinion, be considered perfectly conclusive as to his capacity to manage and dispose of his estate judiciously and effectually. There is, in my judgment, no essential conflict in the facts, or in the proper conclusions from them. On the one side, it appears that the testator, when at home, generally “ drank amazing hard,”, and was, therefore, then and occasionally for some timé after, unreasonable and ungovernable in his passions, and subject to optical and other illusions — the, no uncommon, concomitants of such intemperate habits of old men.
On the other side, many men, among the most intelligent and disinterested of the testator’s old and intimate acquaintances, testified that they had never either suspected or heard of any material impairment or derangement of his mind. Their opinions were founded on what they knew and saw and heard when he was perfectly sober. And the facts proved by some of them, and especially the facts proved by the subscribing witnesses, leave, in my opinion, no ground for rational doubt as to his having a disposing mind when he published hi's will. It seems to me, that, so far as general capacity may be concerned, it is almost impossible to believe that he had not then such a disposing mind; and that such a deduction would be a delusion, almost, if not altogether, as irrational as any which has been ascribed by the widow or any other person to her husband. I do not understand my associates as sanctioning such a deduction; but as sustaining the verdict altogether on the ground of particular delusion towards William, and of sinister influence by some of the principal devisees.
None seemed to doubt the testator’s capacity to manage his estate. “He made better crops, and got higher prices for them, than any of his neighbors” — he “ managed weW— he made a large fortune, and, by his indus*343try, skill and provident conduct, continued to increase it. He had capacity to do all this.
[By Mr. Hewitt.]Was the testator insane towards his grand daughter? He gave her nothing, because she married against his advice. Possibly, he was unreasonable in this. But was he therefore insane? Benjamin Taylor sometimes “ thought” he was insane as to fill his children! And the Preacher “ thought” he was insane about the church affair, because, and only because, his conduct was, in his opinion, unreasonably violent.
Such — with the old lady’s fads — is the character of the proof as to particular insanity.
Did any enlightened Court, without the intervention of a jury, ever set aside such a will, upon such facts as this record exhibits? I have never, as I think, seen or heard of any such judicial decision. Then, must this Court sanction and confirm a verdict which decides what no Court ever would or could decide? I think not. But in this I may err. I repeat that there is, in my judgment, no fact in the record, which should tend to prove that the will was fraudulently procured or influenced by any of the devisees.
This is briefly and hastily my general view of this case.
Much more, as to both facts and deductions, might be added; but my only object being to show that I have some reason for my dissent, I will forbear to discuss the case more fully or minutely.
I am clearly of the opinion, that there ought to be another triaL