Opinion
(July Term, 1816.)
Where, on the trial of an issue of devisavit vel non, the will was attested by two witnesses, one of whom was absent from the State and whose credibility was impeached at the trial, so that the will was proved only by the other, whose testimony, if credible, the court instructed the jury, was sufficient to establish the will, although the absent witness was proved incredible, the jury found against the will, and the court refused to grant a new trial.
THIS was an issue to try the validity of a paper-writing offered by the plaintiffs as the last will and testament of John Wright, deceased. It was witnessed by James Berry and Demsey Squires.
On the trial it was proved that James Berry, one of the attesting witnesses, had left the country some time before, and was not to be found. Squires, the other witness, then proved that the will was duly executed by John Wright in his presence and that of the witness Berry, and that each of them subscribed as a witness, at the request of Wright; Berry subscribing in the presence of this witness.
Squires also proved that he was sent for by Wright to attest this will; that when he came, Wright and Berry were together; that Wright requested this witness to leave the room until Berry read over the will to him; that after remaining out of the room some time, he was called back, and then the will was executed as stated above; that the whole of the will was in Berry's handwriting. It was also proved, on the part of the plaintiffs, that Wright had made a former will, which was also written by Berry, in which the legacies and devises were nearly the same as those contained in this.
The defendants then offered to prove that Berry was not a credible witness. This was objected to; but the court overruled the objection and permitted the testimony to be introduced. A number of witnesses proved that Berry's general character was such that he was not entitled to be believed on his oath. It was then attempted to discredit Squires, the other witness. The only evidence to this effect was that of two (430) witnesses who deposed that soon after Wright's death they had heard Squires say he had not heard Wright acknowledge it to be his last will, and if it was not proved till they proved it by him, it would never be done.
All the witnesses, and these two among the rest, deposed that Squires had always borne an excellent character for probity and honesty, and that they would not hesitate to believe him on his oath.
The court, after recapitulating all the evidence in the course of the charge to the jury, told them that if they believed the evidence of Squires, although Berry was not a credible witness, they ought to find that it was a will.
The jury found that it was not the will of John Wright. A new trial is moved for on the grounds that the evidence as to Berry's credibility was improperly admitted and tended to give an improper bias to the jury and that the jury found a verdict directly contrary to the evidence.
It is agreed that the foregoing case be submitted to the Supreme Court, and if they are of opinion that a new trial be granted, then that the verdict be set aside and a new trial granted; otherwise, the verdict to stand.
This case gives rise to no question of law. The matters of fact having been passed on by the jury, their verdict must stand; and the motion for a new trial must be
Overruled.
(431)