Johnson v. Moore's Heirs

Opinion of the Court.

THIS is an appeal from an order of the county court of Scott, refusing to record the last will and testament of George Moore, dated the 11th of April, 1822. The two subscribing witnesses, who are intelligent and are admitted to be respectable, depose, that the testator at the execution of the will, appeared to be sick and low, but in his right mind; indeed, more so than they had seen him for a long time, and that to the best of their apprehension and belief, of a disposing mind and memory, and they detail strong facts and circumstances and sayings of the testator at the time, corroborating that belief. Others who attended him during his illness, strongly prove the same facts. It appears, that about 24 or 25 years since, he had a severe fever which brought him very low, so much so, that his recovery was extraordinary ; that about fifteen or twenty years since, he became addicted to intoxication, which grew upon him in all its stages from occasional intemperance, to habitual drunkenness ; and for about five years next before his death his drunkenness was nearly without intermission ; and for two or three years still more excessive, so as to disable him from travelling occasionally, and for some months before his death entirely or nearly confined him ; at times he would appear somewhat free from the effects of intoxication, and would be feeble and in active at those moments. He died on the 29th of April after this will was made ; and about the last of February or first of March, was visited by a physician, who candidly apprised him that his case was a hopeless one, and advised him to arrange his temporal affairs and think of eternity. Whether he drank spiritous liquors to excess, during this last confinement the testimony is somewhat contradictory. Some supposing that the irritability of his stomach was so great that spirits or any other fluid would not remain in it; others that he then drank in large quantities. We have no hesitation in saying that the weight of testimony goes to shew that he did not drink to any great excess at that time, or at least constantly so; and that for a great portion of the time, he did appear to retain sufficient intellect to dispose of his estate by will; and such appears to have been his situation, by the testimony of the subscribing witnesses, at the making of the will; and we should have no hesitation in admitting it to record, were it not for the following facts and circumstances. He had no wife or children, but had two or three brothers who reside in this country. He had owned some slaves, all of whom were dead or sold before his death, except one female, who lived with him, as was supposed, in a state of concubinage, and possessed considerable influence over him. Her he had emancipated by a written instrument, recorded, to take effect at his death. During his extreme illness, which took place about 25 years since, he was a great portion of the time in a state of complete derangement, talked wildly about his immense stores of wealth, and conceived an antipathy against his brothers, contending that they designed to destroy or injure him, although they attended him constantly in his illness. Of this antipathy he appears not to have been entirely free, during his life, at all times. He was extremely passionate and irritable in his temper, but more so when intoxicated, and frequently became the sport of boys and others, who, for their wanton amusement, delighted in irritating him. He tenaciously retained his property, and was cautious in his dealings. But still, when irritated or inebriated, he would relapse into the same paroxyisms of insanity, which appeared in his former sickness, manifested by his extravagant and false boasting of his immense stores of wealth, and his great hostility to his brothers and their families.—There is but one period at which he appears to have been entirely divested of this, and that was in 1820, when he executed a will giving to his female slave $1500, and to others some small legacies beside, and the rest of his estate he devised to these relatives. But afterwards, in October 1821, he caused another will to be made disinheriting his relations. This appears to be the chief object of making this last named will. For although he could specially direct the writer to do this, he could not name, after giving a portion to his female slave, any other devisees, but left the place for their names blank. Neither could he fix upon any executor, and for that name left a blank also. And thus he executed the paper and deposited it with the writer, where it remained till his death. We are, therefore, satisfied that on this point, we mean that of hostility to his brothers without cause, he was subject to a species of derangement, which affected him there and no where else, except with regard to his assertions of his extraordinary wealth. As in one point only, except when under the influence of intoxication, he was subject to a peculiar species of derangement which cannot be explained but by the existence of the fact, unless we could measure and scrutinize the mind, we have no hesitation in saying he was competent to do any act, which was not subject to be influenced by that derangement, and that he might be the subject of responsibility both civilly and criminally, for any act which was not influenced or induced by it, and if the persons as to whom his mind was disordered, were strangers, and could not be supposed by the ties of natural affection to be the objects of his bounty, we should have no difficulty in sustaining this will. But this is not the case. To them, it might be supposed, or to some of them, he would have given his estate. Once in 1820, he did make that sound and rational disposition.-From that he departed afterwards, and made them the objects of hatred and disgust. And at the time of making his last will now in contest, he labored strongly under the effects of this disorder of mind; for when he was enquired of by one of the subscribing witnesses, why he had pretemitted his relations, he became instantly irritated, and declared that they had endeavoured to get his estate before his death, and that he had declared war against all the Moores. For this disaffection towards them, there never appeared to be the slightest cause, but the contrary ; and the reasons for it, when assigned by himself, were futile and groundless. He cannot, therefore, he accounted a free agent in making his will, so far as his relatives are concerned, although free as to the rest of the world. But however free he may have been as to other objects, the conclusion is irresistable that this peculiar defect of intellect, did influence his acts in making his will, and for this cause it ought not to be sustained. To this we may add, that there are strong circumstanees inducing a belief that the present devisees, or one of them, saw the advantage that might be taken of this unnatural and unfounded aversion to his relatives, and made use of it to insinuate himself as the sole friend who ought to stand in their stead, and who did supplant them without their interference in the matter to oppose it, and became himself the writer of the will. It is not only his groundless hatred or malice to his brethren, that ought to affect the will, but also, his fears of them which he expressed during his last illness, conceiving that they were attempting to get away his estate before his decease, or that they were lying in wait to shoot him, while on other subjects he spoke rationally. All which are strong evidences of a derangement in one department in his mind, unaccountable indeed, hut directly influencing and operating upon the act which is now claimed as the final disposition of his estate.

Order affirmed.