M. C. Puryear et als. vs. Sallie Reese et als. with the exception of some small legacies for the benefit of his servants. The testimony relative to the sanity of the testator is conflicting. The witnesses for the proponents of the Will, testify to the capacity of the deceased to make a Will. There is testimony to show that his mind was affected by his wounds, and that he was insane; also, that he had lucid intervals. The subscribing witnesses testifiy that he was sane at the execution of the paper purporting to be his Will. The witnesses on the part of the contestants, state he became insane in consequence of the wounds inflicted, and, that he was not of sound and disposing mind and memory, at the time of the execution of the paper. The errors assigned, involve questions of practice and law, and we shall notice them as they arise in the record. First, On the trial of the cause the proponents of the Will introduced the subscribing witnesses to the paper presented in the issue, and offered to examine them as to the execution, attestation and publication of, and the capacity of the testator; and to reserve their other testimony in regard to his capacity, until the contestants had introduced and closed their proof, and then introduce the same as rebutting evidence. The Court ruled: "If the contest was as to the capacity of the party, the proponents of the Will must introduce all their testimony upon that question, as evidence in chief, but if the contestants should introduce evidence of undue influence, they would then have the right to introduce rebutting proof upon that question;" to which they excepted, and the trial was had under the rulings of the Court; and in this, we think, the Court erred. M. C. Puryear et als. vs. Sallie Reese et als. The usual and proper practice, in such cases, in our courts, is the proponents of the Will first introduce the subscribing witnesses, and prove its due execution. The witnesses are usually asked the question of its due execution, and whether they regarded the testator of a sound and disposing mind and memory, at its execution. The affirmative answer to this general question, is all that is expected in the first instance. When the validity of the Will is contested upon the ground of the want of mental capacity, the presumption is against the parties alleging the fact of the want of mental capacity. They go forward with their testimony, and having closed their proof, the rebutting testimony of the proponents of the Will is then introduced. It is not necessary, in the examination of the witnesses as to the due execution and attestation of the Will, that they should be examined as to the sanity of the testator. The party contesting the validity of the Will may cross-examine the witnesses as to this point, as he is not obliged to wait until he puts his side of the case, and then recall the witnesses. The general burden of the issue of devisavit vel non, is upon the party claiming under the Will; but, upon any allegation of want of capacity in a testator, it is upon the contestant. The party propounding the Will has the right to open and close the case. Such is, and has been, the usual practice of the Circuit Courts of this State, and is the same in most of the States: Redfield on Wills, pp. 40 and 41; 8 Connnecticut Rep., 254; 4 Massachusetts, 259; 7 Pickering, 94. M. C. Puryear et als. vs. Sallie Reese et als. Secondly, On the trial of the cause, the party propounding the Will, after an examination of the witness, who had frequently seen the testator, and had conversations with him, before, and about the the time of the making of the Will, was asked the question, in view of all that he had stated: "Whether the testator was, at the time of making the Will, of sound and disposing mind and memory?" The question was objected to, and the objection sustained by the Court. Since the decision of Gibson vs. Gibson, 9 Yer., 329, this has no longer been an open question in this State. Attesting witnesses, and they only, are trusted to give their opinions, merely, without cause, or reason assigned, of a testator's sanity. Physicians may state their opinions of a testator's mind, but they must give the symptoms or circumstances, from which they draw their conclusions. As to all others, their opinions, not based on facts or circumstances testified to, are not evidence. The rule is, a witness having stated the appearance, conduct, and conversations of the testator, or other facts from which he may draw his conclusions, is at liberty to state his opinions as the result of the facts upon his mind, as to the condition of the testator's mind: 1 Iredell, 83; 4 Con., 203; 7 Gill's Rep., 10; 17 Verm., 502. We are, therefore, of opinion that the Court erred in sustaining the objection to that question. Thirdly, On the trial, the contestants offered to read the deposition of Dr. Core, to which the adverse party objected, upon the ground that he was under subpœna, M. C. Puryear et als. vs. Sallie Reese et als. and present, and ought to be examined: but the Judge overruled the objection, and permitted the deposition to be read. In this, we think the Court erred. It appears, from this record, the witness was a resident of the County of Williamson, in which the action is pending, and his deposition had been taken under the provisions of sec. 3837, of the Code. His deposition had been taken in the county, by the contestants. He had been subpoenaed to attend by the opposite party, and was in attendance as a witness. By provisions of the section of the Code, where the deposition of a witness, living in the county, has been taken, the adverse party having summoned him, if he is present, the party who took his testimony, cannot read the deposition. He must, if he desires the testimony, examine him. It seems to have been held otherwise, but we think this the correct practice. This rule does not apply where the witness resides in another county. In that case, the adverse party may summon him, if he wants him examined in court; but it does not preclude the reading of the deposition by the party who took it-it simply enables the party who summoned him, to examine him, if he chooses: History of a Lawsuit, sec. 314, and 11 Hum., 89. Fourthly, Many exceptions have been taken to the charge of the Court. We think it did not present the law applicable to the case, to the jury. The testimony discloses the testator was, at times, before the execution of the Will, insane. The Court instructed the jury, among other matters, M. C. Puryear et als. vs. Sallie Reese et als. "That it is not the strength or weakness of the mind you are to determine, but, whatever mind he did have, was it sound? Not a diseased, or deluded mind. Was he insane, totally or partially? Although he may have been sane in many respects, even apparently to contract, or do ordinary business, yet, if partially, or totally insane, or deranged, as it is termed, on certain other subjects, this in law, would be what is termed, an unsound mind." This part of His Honor's charge is manifestly erro neous. A person may be insane upon some subjects, yet sane upon all other subjects; such a one is not incompetent to execute a valid Will, if it is not the offspring of the morbid delusion, under which he is laboring. Partial insanity, will be sufficient to defeat a Will, if the act can be traced to the cause in which the mind is diseased, although the person, at the time of making the Will, was sane in other respects, upon ordinary subjects: Jarman on Wills, p. 59; Redfield on Wills, 69 and 70; 3 Hump., 278. His Honor, in his instructions, wholly failed to draw these distinctions, and the effect of the charge upon the jury, was, that if the testator was of unsound mind, he could not make a Will. The presumption of law is, after insanity is once shown to exist, it continues, unless it be the effect of delirium; so that the party who alleges a lucid interval, assumes the burden of proof; but no particular measure of proof is required to establish the existence of such a state of mind, but it must be sufficient to overcome the presumption that naturally arises |