Nailing v. Nailing

• Decision Date: 30 April 1855
• Citation: 34 Tenn. 630
• Parties: JOHN R. NAILING, Executor, v. WILLIS. A. NAILING.
• Court: Tennessee Supreme Court

34 Tenn. 630

JOHN R. NAILING, Executor,

v.WILLIS. A. NAILING.

Supreme Court of Tennessee.

April Term, 1855.

FROM WEAKLEY.

This issue devisavit vel non, involving the validity of the will of Nelson Nailing, deceased, late of the county of Weakley, was submitted to a jury of said county, before Judge Fitzgerald, at the June term, 1854, of the circuit court, and resulted in a verdict in favor of the contestants. A new trial being refused, there was judgment; and an appeal in error by the executor to this court.

I. R. Hawkins, Etheridge, and M. & H. Brown, for the plaintiff; A. McCampbell, I. B. Williams, and G. H. Roulston, for the defendant.

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

This case is an issue devisavit vel non, on a script purporting to be the will of Nelson Nailing, deceased. The verdict of the jury was in favor of the contestant, declaring that the script is not a will; thereon the plaintiff, who propounded it, appealed in error to this court.

The question is, Did the circuit judge err in refusing to grant a new trial on the facts and merits of the case?

It is a settled and inflexible rule of this court, in the exercise of its revisory jurisdiction, not to grant a new trial merely on the facts, where there is evidence to support the verdict, or a contrariety of evidence on the issue in the case.

The reason is obvious. This court can see the case only as it appears through the imperfect medium of a bill of exceptions. The evidence is often not fully stated, or inaccurately stated. The manner, intelligence, and credit of the witnesses are, of necessity, obscurely and imperfectly represented.

In considering the merits of a verdict, therefore, this court will hesitate to pronounce against the opinion of the judge who tried the cause, and who declares himself satisfied with the verdict. And if no principle of law be violated by his action in the case, the verdict will not be disturbed, except in the extreme cases before stated. England v. Burt, 4 Humph. 399;Jones v. Jennings, 10 Id. 428; Crutcher v. Crutcher, 11 Id. 277; Graham on New Tr. 405.

In this view of the subject it is just and reasonable that a more liberal rule should govern, at nisi prius, than the one which this court, from a sense of duty, has adopted for its own action. Certainly it is competent and proper for the judge, at nisi prius, to weigh the evidence, and if it appear to him that the verdict stands opposed to the justice and equity of the case, it ought to be set aside and a new trial granted, if the matter in issue be of sufficient consequence. Graham on New Tr. 368; Jackson v. Sternburgh, 1 Caines, 163.

In the present case it is insisted by the plaintiff that the verdict is plainly against the weight of evidence; that in fact there is no proof in the record to support it, and therefore a new trial ought to be granted.

On the contrary it is argued that, in view of the well-settled rule and practice of this court on the subject, it is not a proper case for a new trial. We have carefully considered the case as it appears in the proof, and in our judgment it is clear and evident that the verdict is not a true response to the evidence.

1. As to the capacity of the testator: We observe that he was eighty-six years of age at the execution of his will, September 3, 1850. The two attesting witnesses to the will had known him for more than a quarter of a century, and bear evidence to the soundness and force of his mental faculties at the time. One of them, Dr. Rogers, says the testator was of “strong will,” and “sensible and cheerful as he had ever been;” the other, Mr. Vincent considered his mind “““sound and good.”

In the opinion of witnesses on the part of contestants the memory of the testator had suffered decay, but no fact appears from which it can be inferred that there was any defect in his judgment and understanding. 'Tis true, he was in feeble health at the time, and confined to his room from an injury received in the hip by a fall some two years before.

He lived, after the execution of his will in September, 1850, until March, 1852, when he died.

We think there is no reason to doubt the testamentary capacity of testator.

“A man may freely make his testament, how old soever he may be, for it is not the integrity of the body, but of the mind, that is requisite in testaments.” Swinb., part 2, sec. 5.

“The law looks only to the competency of the understanding; and neither age, nor sickness, nor extreme distress or debility of body will affect the capacity to make a will, if sufficient intelligence remains.” Van Alst v. Hunter, 5 Johns. Ch. 148.

2. It is argued that the testator was imbecile from age and disease, and that he was fraudulently influenced by interested persons in making the dispositions contained in his will.

We are of opinion that this argument is founded in mere assumption. There is nothing in the...