Brewer v. Ferguson

• Decision Date: 30 April 1851
• Citation: 30 Tenn. 565
• Parties: BREWER v. FERGUSON.
• Court: Tennessee Supreme Court

30 Tenn. 565

BREWER

v.FERGUSON.

Supreme Court of Tennessee.

April Term, 1851.

This case was tried in the circuit court, held for the county of Dyer, by Judge Humphreys. There was a verdict and judgment for the plaintiff. The defendant appealed.

Raines and King, for the plaintiff in error; S. Williams, for the defendant in error.

TOTTEN, J., delivered the opinion of the court.

The case is an issue of devisavit vel non, on a script propounded as the will of Herron Brewer, deceased, and the verdict being in favor of the instrument as a will, the contestant has appealed in error to this court.

And now it is insisted that there is error in the record, because the verdict is against the weight of evidence; and, second, because competent and material evidence was rejected by the court.

The principal question of fact discussed before the jury, related to the state of the testator's mind at the time he made the will. The evidence adduced to support the will, is, apparently, very ample to prove, that he had sufficient mind and capacity to make a valid disposition of his estate.

This, however, is strongly contested by a weight of evidence on the other side, tending to prove a groundless and unreasonable hatred and malevolence of the testator towards his wife and his son, the contestant, for whom he made little or no provision in his will. And it was insisted, and is here insisted, that he was insane in reference to his family and the disposition of his estate, whatever might have been the state and condition of his mind on other subjects. The jury, under a very full and distinct charge, to which no just exception can be taken, have determined this issue of fact in favor of the will; and we cannot say, in view of all the evidence, that they have come to an erroneous conclusion.

His honor, the circuit judge, having a nearer and more distinct view of the facts, as they appeared on the trial before him, and of the weight and value of the evidence adduced, than we can possibly have through the medium of a bill of exceptions, having refused a new trial, the case should be a strong one against the verdict, to authorize this court to disturb it; and such is not the present case.

2. The widow of the deceased was offered by the contestants as a witness, to establish the alleged insanity of her husband, by proof of his “conduct and conversation,” during the existence of the marriage relation. It was admitted that she had dissented from the will, and had no actual interest in the issue between the parties. The court held, and we think very properly, that she was an incompetent witness.

Subject to certain well known exceptions, having relation to the personal security and protection of the wife; the general rule unquestionably is, that neither the husband nor the wife is a competent witness for or against the other, in matters civil or criminal. In addition to the ground of interest and identity, there is a further objection to their competency, founded in social and moral considerations, of still greater weight. To enforce or permit the husband or wife, to publish and prove before the court, the...