"No
2. The court instructs the jury, for the proponent, that, in
order to constitute a valid and legal execution of the last
will and testament of a testator, it is necessary that the
same shall be subscribed by him in the presence of two or
more credible witnesses, and by the said two witnesses
subscribed as witnesses in the presence of the said testator
and of each other; and the jury are instructed that the
instrument of writing presented in this cause for probate by
the proponent has been duly and legally executed in the
manner above mentioned, and upon this issue the jury will
find for the proponent."
"No
3. The court instructs the jury, for the proponent, that
while it is true that the burden of proving that the alleged
testator, R. W. Terry, deceased, was of sound, disposing
mind, memory, and understanding at the time of the making and
executing of the instrument of writing presented for probate
herein, is on the proponent, yet the law presumes that every
man is sane until the contrary appears by evidence, and, upon
this legal presumption of sanity, the proponent has the right
to rest, until it is overcome by some evidence showing the
insanity of the alleged testator at the time of the alleged
making and execution of the said instrument of writing."
"No
4. The court instructs the jury, for the proponent, that,
before they can find a verdict for the contestants in this
cause, they must believe from the evidence that either one of
two facts is true: Either that the alleged testator, R. W.
Terry, was at the time of the making and executing of the
said alleged last will and testament of unsound mind to that
degree that he was incapable of understanding the alleged
will, and did not understand it; or that he was influenced
unduly by the proponent, J. P. Hitt, to make the said will,
and this undue influence must have been so strong as to make
the will not the will of the said R. W. Terry, but in fact
the will of the said J. P. Hitt, forced upon the mind of said
R. W. Terry by the preponderating and undue influence of the
said J. P. Hitt."
"No.
5. The court instructs the jury, for the proponent, that,
even though they may believe from the evidence that there
were times in the life of the alleged testator when, from bad
health or otherwise, his mind was unbalanced to that degree
that he was incapable of understanding and attending to
business, still, unless the jury believe from the evidence,
further, that the unsoundness of mind of the testator existed
at the time of the making of the said alleged last will and
testament, and to that degree that he was incapable of
understanding and did not understand the same, then the jury
will find for the proponent upon the issue of insanity."
"No.
6. The court instructs the jury, for the proponent, that if
they believe from the evidence that the testator, R. W.
Terry, on the 19th day of March, 1906, at the office of the
Peabody Hotel in the city of Memphis, Tenn., did sign the
instrument of writing presented for probate herein as his
last will and testament, in the presence of E. P. Mangum, L.
E. Heath, and C. R. Pollard, or any two of the said persons,
knowing the same to be his last will and testament and
understanding the same, and that then and there, immediately
after the signing of the said last will and testament by said
R. W. Terry, the said subscribing witnesses, or any two of
them, who were present at the signing of the said instrument
of writing by the said R. W. Terry, at his request, either
directly made or through some other person, subscribed their
names thereto as subscribing witnesses, in the presence of
the said testator and of each other, and if the jury further
believe from the evidence that at the time the said R. W.
Terry, though in feeble health, was of mind and memory
sufficiently sound to know and understand the provisions of
the said alleged will, and did know and understand the same,
and that the said R. W. Terry was not influenced by the
proponent, J. P. Hitt, in any undue manner to execute the
said alleged will, then the jury will find for the proponent,
J. P. Hitt."
"No.
8. The court instructs the jury, for the proponent, that,
while the burden of proof in this cause is on the proponent,
this does not mean that the proponent must prove his case
beyond a reasonable doubt. All that is required of him is to
make out his case to the satisfaction of the jury by a
preponderance of the evidence."
"No.
10. The court instructs the jury, for the proponent, that on
the issue of insanity of the alleged testator the question
for them to determine is, what was the condition of the mind
of the alleged testator at the time of the making and
executing of the instrument of writing presented for probate
herein? And while it is true that the jury may take into
consideration, on this issue, the condition of the alleged
testator's mind at other times, yet the nearer to the
time of the alleged execution of the said alleged will that
the witnesses observed the said alleged testator the more
important is the testimony on the said issue; and even though
the jury may believe from the evidence that there were times
when the said R. W. Terry was not of sound, disposing mind,
memory, and understanding, if they believe further from the
evidence that he was, at the time of the making and executing
of the said alleged will, of sound, disposing mind, memory,
and understanding, they will find for the proponent on the
issue of alleged insanity."
"No.
11. The court instructs the jury, for the proponent, that
even though it may appear to them from the evidence that the
alleged last will and testament of the said R. W. Terry,
deceased, is unreasonable, unnatural, and unjust to his
family, or some of them, or however unreasonable, unnatural,
or unjust they may think the will to be, still they must
uphold the will, if notwithstanding they believe from the
evidence that the said R. W. Terry had testamentary capacity
and was not unduly influenced at the time of the execution of
the will."
"No.
12. The court instructs the jury, for the proponent, that
although they may believe from the evidence that the alleged
testator, R. W. Terry, was not prompted by natural affections
when he made the alleged will, and although they may think
its provisions are grossly unjust, still, if upon the
evidence they believe the testator possessed capacity to make
the said alleged will at the time of its execution, the
alleged will must be sustained; for the court instructs the
jury that the right to dispose of one's property by will
is most solemnly assured by law, and is a most valuable
incident to ownership, and does not depend upon its judicious
use. The beneficiaries of a will are as much entitled to
protection as any other property owners."
"No.
13. The court instructs the jury, for the proponent, that it
is competent for the proponent, J. P. Hitt, to testify as a
witness in this cause, and that it is also proper for them to
consider evidence of testamentary intentions of the alleged
testator, R. W. Terry, by the proof of declarations made by
him in reference to his will, both before and after the
execution thereof; and it is for the jury to determine from
this evidence, and the whole evidence in the case, whether
the testamentary intentions of the alleged testator were at
the time of the making of the declarations in reference
thereto by him as stated. If they believe from the evidence
that he did make any such declarations, and if from the whole
evidence, the jury believe that the intentions of the said
alleged testator were really as declared by him before he
made the said alleged will, if they believe from the evidence
that he made any such declarations, then the jury may
legitimately draw an inference that when the subsequent will
conformed to the said declarations that the intentions of the
said testator had continued down to the making of the said
will."
"No.
14. The court instructs the jury, for the proponent, that the
jury are the sole judges of the credibility of the witnesses
and the weight of evidence. It is for them to say what
witness or witnesses have told the truth, and what fact or
facts are true, from the evidence. The jury have a right to
believe all the testimony of any witness or witnesses, or to
reject it all, or they have a right to believe a part of the
testimony of a witness, or reject a part, according as they
may believe the same to be true or untrue. But they are not
authorized to arbitrarily reject the testimony of any
witness, or to disbelieve the testimony of any witness in
whole, simply because they believe a part of the testimony of
the said witness to be untrue; but, if the jury believe any
witness has willfully and corruptly sworn falsely to a
material fact, they have then the right to reject the
testimony of that witness altogether."
"No
15. The court instructs the jury, for the proponent, that if
they shall find a verdict for the proponent the form of their
verdict will be: 'We, the jury,...
