Smith v. DuBose , 78 Ga. 413 ( 1887 )

Hall, Justice.

In response to a notice served by the executors of David Dickson, late of Hancock county, deceased, on his heirs and distributees, to show cause why his will should not be proved in solemn form, a portion of them appeared and caveated the probate, on the grounds:

(1) That the will was procured by the undue influence of Amanda Dickson and her mother, Julia Dickson, or one of them.

(2) That it was procured by the fraud of said Julia and Amanda in inducing said David Dickson to believe that said Amanda was his child, when she was not; and that her sons were the sons of Eubanks, when they were not.

(3) That the-whole paper is a scheme to carry into effect the last clauses of item 4, all of the 7th item, and all of the 9th .item, relating to said Amanda and her said children, the alleged natural sons of Eubanks, which items are inconsistent with the laws or contrary to the policy of the State; and therefore the whole paper is void as a will for this and for the reasons stated in the caveat and this amendment; that if the whole is not void, said parts are void for said reason.

The other reasons stated in the original caveat of file were, that the paper was not David Dickson’s will; that he had not testamentary capacity to make a will; that it was made under the undue influence and improper control exercised over him by Amanda Dickson; that it was made under a mistake as to his heirs of law, and was not such a will as he would have made had he known the facts, because the paper was, in its scheme and nature and tendency, illegal and immoral and contrary to the policy of the State and of the law, and destructive and subversive of the interests and welfare of society.

The will was admitted to probate by the court of ordinary; and from this judgment the caveators appealed. On the appeal trial, all question as to the capacity of the testator to make a will was abandoned. The other grounds of the caveat were those relied on to defeat the probate of the will. On this trial, as well as that before the ordinary, the will was sustained, and a judgment was taken admitting it to probate and record.

The material questions discussed before this court were :

(1) That the will was the result of the undue influence exercised by ^Amanda Dickson, one of the principal beneficiaries under its provisions, and her mother, Julia Dickson, upon the testator.

(2) That it resulted from false and fraudulent representations made by Amanda and Julia, not only as to the paternity of Amanda, but of Amanda’s children, it being insisted that Amanda was not the child of the testator, and that her sons, Julian H. and Charles G., were not the natural sons of the testator’s deceased friend, Charles H. Eubanks.

(3) That, in consequence of these facts, the will embodied a scheme of Amanda and Julia to carry out the same by virtue of the items and provisions in favor of Amanda and her children; that the scheme was inconsistent with law and contrary to the public policy of the State; and if it did not render the whole paper void as a will, it did so at least as to the items or portions in favor of Amanda and her children, because of its tendency to promote illegal and immoral intercourse between Amanda and her alleged paramour, the said Eubanks, such intercourse being destructive and subversive of the welfare and interests of society.

The items of the will bearing upon these questions are the following:

“Item 4th. I give, bequeath and devise to Julian H. Dickson and Charles G. Dickson, minor children of Amanda A. Dickson, and the natural sons of my deceased friend, Charles H. Eubanks, and to the survivor of them, in case either should die leaving no child or children or representatives or representors of a deceased child or children, the two tracts of land in Hancock county (describing), adjoining the land of Baxter, the Alexander place, now occupied by said children and others, containing in all five hundred acres, more or less. I appoint Amanda A. Dickson, mother of said children, the testamentary guardian of the property given to her children by this item of my will, and my executors are directed to turn over said property to her as such guardian, to be managed by her for them till they or either of them marry or come of age, at which time, as the case may be, said property may be divided, share and share alike. If both of said children should die before marriage or attaining lawful age, leaving no child or children or the representative of a deceased child surviving, then the property in this item shall go to Amanda A. Dickson, their mother.”

“Item 7th. I give, bequeath and devise all the rest and residue of my estate, not expressly disposed of by this will otherwise, as well all I now own as all I may hereafter accumulate up to the time of my decease, including lands, live-stock, farming implements, crops on hand and crops growing, railroad stock, bonds, notes, accounts and everything else of value I may own at my death, to Amanda A. Dickson, of Hancock county, now living with her mother near my plantation, for and during her natural life, free, clear and exempt from the marital rights, power, control or custody of any husband she may have, with full power to her, the said Amanda A. Dickson, without the aid or interposition of any court, to sell said property and convey the same, and to reinvest the proceeds of said sales in other property or in good security to be held for her for her life as aforesaid. I charge the property bequeathed by this item of my will with the support and education of the children of the said Amanda A. Dickson, as well those hereafter to be horn as those now living; their support to be ample, but not extravagant, their education to be the best that can be procured for them with a proper regard for economy, — all of which I leave to the sound judgment and discretion of the said Amanda A. Dickson, without any interference from any quarter. As either of the children of the said Amanda A. Dickson, horn or to he born to her, come of age or marry, I direct her to set off to such child so marrying or coming of age a portion of said property, she to determine in her unlimited discretion what property and how much shall be set off, with only this instruction, that the amount must not be so great as to defeat or imperil my purpose to provide for her during life, and for her children, as well those to be born hereafter as those now in life. Upon the death of the said Amanda A. Dickson, I give, bequeath and devise what may remain of the property embraced in this item of my will to the children of the said Amanda A. Dickson, and the representatives of any deceased child, share and share alike, such representatives taking per stirpes, and not per capita.”

The ninth item named the pro pounders as his executors, directed them to prove his will in solemn form and to turn over to said Amanda all the property given her for life, and requested them to see to it while they live, “that Amanda A. Dickson and her children are protected in their person and their property under the laws, so far as they may be able to do so,” and gave each of the executors $2,500 in lieu of commissions.

1. We shall consider, first, whether this will, in the various items mentioned above, and according to its scheme and the proof had upon that subject, can be deemed contrary to public policy and void, and whether that question was clearly and properly submitted to the jury under the charge of the court and the testimony in the case. To do so intelligently, it will be necessary to state accurately the several charges of the court upon that subject to which the caveators excepted; and these will be found in the 18th, 22d, 24th, 25th and 28th grounds of the motion for new trial, which are as follows :

(18) “The court erred in charging the jury, at request of counsel for the propounders, as follows: ‘There is no public policy in Georgia which prevents colored persons from taking property under a will,’ without more, and without coupling to that the consideration of illicit intercourse which may have produced said will.”

(22) “At request of counsel for caveators, the court charged the jurv that, ‘If Amanda was the bastard child of David Dickson, begotten in this State of a negro slave prior to the late emancipation, he was under no obligation to support or provide for such child prior to such emancipation, except as a slave, if his slave, but then only while she was his slave’; and was requested further in writing to charge, ‘No obligation was upon David Dickson, if he so begot said slave, to support and provide for her after emancipation, or if any such obligation existed, it ceased upon her becoming 21 years old’; and the court so charged, leaving out the words, ‘or if any such obligation existed, it ceased upon,’ and inserting ‘and’ after emancipation, and then refused to charge, as requested in writing, ‘If this will was made after such majority and Amanda was such a bastard of this testator, the parts giving this property to her are void, because contrary to public policy.’ The refusal of this request was error.”

(24) “The court erred in refusing to charge, as requested in writing by the counsel for caveators, ‘If the jury believe from the evidence that this will sought to be propounded is contrary to the policy of the State of Georgia, then the jury would be authorized to find against the will.’ ”

(25) “The court erred in refusing to charge as follows: ‘Under the constitution and laws of the State of Georgia, marriages between white persons and negroes are forbidden, and the public policy of the State is against the mingling of the blood of these races, and if you believe this will is against said policy, it is absolutely void’; though requested in writing by counsel for the caveators.”

(28) “The court erred in concluding his charge as follows: ‘Every man in this State has a right to will his property to whom he pleases. There is no policy of the State which would make it unlawful or contrary to such policy for a man to will his property to a colored person, to any bastard or to his own bastard, and such considerations as these would not alone authorize a will to be set aside; but you may consider all the facts, relationships and circumstances in evidence in deciding the questions made before you, which I have already stated and explained to you.’ It was error in the conclusion thus to group and state the facts touching the case; thus to use the words ‘set aside’ in the statement of the absence of a policy as to a testator’s bastard without regard to whether he owed any legal obligations to such bastard, and because it did not sufficiently emphasize that matter of illegal cohabitation.”

It will be remarked that this will makes no provision for Julia, who, it -is alleged, was the concubine of the testator ; that there was no pretence of marriage between Eubanks and Amanda; and that there is no direct evidence going to establish the fact that the intercourse between Amanda and Eubanks took place and was carried on in consequence of any previous agreement or promise, on the testator’s part, to make provision for Amanda and the children born in consequence, of that intercourse. The will was made after that intercourse had ceased, and after the death of Eubanks. It was not seriously insisted that past cohabitation would render a gift by the party holding such a relation to a woman void or illegal; and had it been so contended, the argument could have rested upon no legal principle whatever. Indeed, from a very early period, the law has been well settled to the contrary. Vide Beall vs. Beall, 8 Ga. 224; Hargroves vs. Freeman, 12 Id. 342; Davis vs. Moody, 15 Id. 175.

A contract to make compensation for the injury done in consequence of past illegal cohabitation, which contained no stipulation for future intercourse, has been held to be valid; and even where such a contract had been fully executed, and the intercourse was kept up afterwards, yet if it did not appear that the subsequent cohabitation was made a stipulation in the contract, it has been maintained; where there was no evidence of any promise or understanding, other than that inferred from the fact of future illicit intercourse between the parties, this did not affect the validity of the transaction. Thus, where a bond had been given in consideration of past cohabitation, without any express stipulation to that effect, or without evidence from which it could be shown -that the future cohabitation of the parties was one of its conditions, although in fact they subsequently so cohabited, it was held that the bond was nevertheless valid, and upon it an action could be maintained. Chitty on Contracts, 979; Trovinger vs. McBurney, 5 Cowen Rep. 253; Gray vs. Mathias, 5 Ves. 286; Hall vs. Palmer, 3 Hare, 532; Brown vs. Kinsey, 81 N. C. 245 ; Greenhood on Pub. Policy, 204, 207, both, inclusive, and other citations in the notes thereto; Gay vs. Parpart, 106 U. S. 679.

“ The test,” says Dillard, J., in delivering the opinion in Brown vs. Kinsey, “always is, does it appear by the contract itself, or was there any understanding of the parties, though not expressed, that the intercourse was to continue ?”

Neither at the testator’s death, nor when the will was executed, could a continuance of the relations between Eubanks and Amanda have been contemplated, for, as before remarked, Eubanks was then dead. There is absolutely nothing in the case to show that the testator, as contended by the caveators, had knowledge of any illicit intercourse between "Worthen, one of his executors, and Amanda, subsequent to Eubanks’ death. The circumstances in proof warrant no such inference; and nothing beyond vague suspicion or mere conjecture could impute to him knowledge of the fact or a purpose on his part to make provision with a view to the creation of such a relation between these last named parties. One thing is certain: that there was no offspring from this intercourse during the life of the testator; nor is there a single fact in proof to charge him with knowledge of it, or to show that he in any way encouraged or promoted it. His will certainly made no provision for the carrying on of such intercourse, or for the maintenance and support of any offspring that might result therefrom. The principal complaint here is, that anything- which has a tendency to induce intercourse between persons of the white and negro races, is contrary to public policy, and consequently void; and this conclusion is drawn from-the prohibition of marriage between these races, as found in our constitution and laws. Illicit intercourse between persons of the same as well as different races is made penal by our code; as also intercourse between persons standing in near relations of consanguinity or affinity to ¿ach other, whether that intercourse take place in consequence of prohibited marriage or otherwise. It is well settled that a white man may be guilty of fornication or adultery with a colored woman, and vice versa ; and that a white or colored man, if a child is begotten in consequence of such illicit intercourse, may be held liable for bastardy. Allen vs. Harris, 40 Ga. 220. Indeed, there is no difference in this respect between the rights and liabilities of the different races.

The 14th amendment of the constitution of the United States provides in express terms, that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court of the United States has decided that this amendment made all colored persons born in the United States, and subject to its jurisdiction, citizens of the United States and of the States in which they reside. 16 Wall. 90, 95, 97, 620; 20 Wall. 615; 92 U. S. Munroe et al. vs. Phillips, adm'x., 64 Ga. 32.

Under the constitution of Georgia, section 5017 of the code, “All citizens of the United States, resident in this State, are hereby declared citizens of this State;" and it is made the duty of the General Assembly to enact such laws as will protect them in the full enjoyment of the rights, privileges and immunities due to such citizenship. And to this effect is section 44 of the code. All distinctions as to the rights pertaining to citizenship between the two races are abolished by this legislation and by these constitutional provisions. As to their civil rights, they stand upon the same footing. It follows, therefore, that whatever rights and privileges belong to a white concubine, or to a bastard white woman and her children, under the laws of Georgia, belong also to a colored woman and her children, and that the rights of each race are controlled and governed by the same enactments or principles of law.

Among the rights of citizens of this State enumerated in section 1654 of the code, are the right to the acquisition' and enjoyment of private property and the disposition thereof, the right to vote, hold office, etc. It is unquestionably true that a testator, by his will, may make any disposition of his property, not inconsistent with the laws or contrary to the policy of the State. Code, §2399. And this accords with the general law upon this subject. Most persons in modern times, by that law, are deemed capable of taking under wills, and the exceptions as to those who are incapable of taking are carefully enumerated, and rest generally upon grounds of public policy. Upon these grounds alien enemies are excluded from benefits under wills, and so are others whose participation in such benefits could, in any sense of the word, be called immoral; if a will makes a devise or bequest to further or carry into effect some illegal purpose which the law regards as subversive of sound policy and good morals, such devise or bequest will be held void, and the executor would not be justified in paying it. The conditions of a testamentary gift tending to separation or divorce between husband and wife would be treated as void; and to the same general principle of good morals and sound policy may be referred various miscellaneous restraints upon testamentary disposition which local law sees fit to enforce. Thus, under the Louisiana code, a will made in favor of the testator’s concubine is treated as null and void. Gibson vs. Dooly, 32 La. An. Rep. 959. Doubtless the local conception of public policy on such points is liable, in different jurisdictions and at different times and different epochs, to great variations. Decisions must greatly vary in consequence. Schouler on Wills, §§22, 23.

There is nothing in the law of Georgia, that we have seen, inhibiting compensation for past illegal cohabitation being made by a white man to a white woman; and under the law as it now stands, there can be nothing to prevent its being made by such white man to his colored paramour. No arrangement for future cohabitation with a black or white woman would be valid in favor of the woman or any party deriving a benefit from it. There is nothing in our law prohibiting a putative father from making provision for his illegitimate child, or for the illegitimate offspring of such child. And even conviction of treason or felony, or any lower grade of crime, works no corruption of blood or forfeiture of estate. Bill of Eights, sec. 2, par. 3, code, §5020. So that a felon or his offspring may take testamentary benefits under the law of this country. No one would contend for a single moment that a contract, agreement or understanding, founded upon a con sideration, in whole or in part, for the commencement or continuance of meretricious intercourse between the sexes, would not be directly contrary to law or public policy and the best interests of society.

What is public policy ? And where must we look to find it ? And in ascertaining and applying it to the transactions of life, by what rules and precautions are the courts to be guided ? On this latter topic, it is manifest from many decisions that judicial tribunals hold themselves bound to the observance of rules of extreme caution when invoked to declare a transaction void on grounds of public policy; and prejudice to the public interest must clearly appear before a court would be warranted in pronouncing the transaction void on this account.

In Richmond vs. Dubuque and Sioux City Railroad Co., 26 Iowa, 190, 202, it is said that “the power of courts to declare a contract void for being in contravention of sound public policy is a very delicate and undefined power, and, like the power to declare a statute unconstitutional, should be exercised only in cases free from doubt.”

After laying down, in terms somewhat different, the same general rule, it was said by Howe, J., of the Supreme Court of Wisconsin, in pronouncing the judgment of the court in Kellogg vs. Larkin, 56 Am. Decis. 164, 168: “ He is the safest magistrate who is more watchful over the rights of the individual than over the convenience of the public, as that is the best government which guards more vigilantly the freedom of the subject than the rights of the State.”

So in Swann vs. Swann, recently determined in the United States Circuit Court for the Eastern District of Arkansas, 21 Federal Rep. 699, it was said by Caldwell, J., delivering the opinion: “ No court ought to refuse its aid to enforce a contract on doubtful or uncertain grounds. The burden is on the defendant to show that its enforcement would be in violation of the settled public policy of the State, or injurious to the morals of its people. Vague surmises and flippant assertions as to what is the public policy of the State, or what would be shocking to the moral sense of its people, are not to be indulged in.”

In the leading case of Richardson vs. Mellish, 2 Bing. 229 (9 Eng. C. L. Rep. 557), the observance of the rule as thus limited is strongly upheld and rigidly enforced by the whole court. Each of the judges presiding in that case delivered separate opinions, though they all concurred in-the result.

Best, C. J., says : “We have heard much of this being a contravention of public policy, and that on that ground it cannot be supported. I am not much disposed to yield to arguments of public policy; I think the courts of Westminster Hall (speaking with deference, as an humble individual like myself ought to speak, of the judgments of those who have gone before me) have gone much farther than they were warranted in going in questions of policy; they have taken on themselves, sometimes, to decide doubtful questions of policy, and they are always in danger of so doing, because courts of law look only at the particular case, and have not the means of bringing before them all those considerations which ought to enter into the judgment of those who decide on questions of policy. I therefore say it is not a doubtful matter of policy that will decide this, or that will prevent the party from recovering; if once you bring it to that, the plaintiff is entitled to recover; and let that doubtful question of policy be settled by that high tribunal, namely, the legislature, which has the means of bringing before it all the considerations that bear on the question, and can settle it on its true and broad principles. I admit that if it can be clearly put upon the contravention of publij policy, the plaintiff cannot succeed; but it must be unquestionable — there must be no doubt; looking at all the facts of this case, I can see no unquestioned principle of policy that stands in the way of the plaintiff to prevent him recovering in this action.” Criticising and explaining two cases (Card vs. Hope, 2 B. & C. 661, and Blanchard vs. Preston, 8 T. R. 81), which were relied on as opposed to this rule, the learned Chief Justice admits that in one of the cases there are expressions used by Chief Justice Abbott which seem to bear upon the present case. “But,” he says, “the expressions of every judge must be taken with reference to the case on which he decides, otherwise the law will get into extreme confusion. That is what we are to look at in all cases. The manner in which he is arguing is not the thing; it is the principle he is deciding. If ever I could have imagined it could have been extended to such a case as this, I would have protested against, though I could not have prevented, the decision. I would in my place have protested against it, for I should have seen the injustice and confusion to which such a doctrine would have been liable to be extended. I am quite satisfied that not one of the learned judges who decided that case ever conceived that its authority could be pressed to the extent to which it has been pressed in this case.”

His colleague, Park, J., refers to those cases for the principles they determine, and not for their facts. He concurs, .as far as necessary, in the respective judgments rendered in them, and says: “The judgment given by my Lord Chief Justice Abbott was very elaborate; but though I concur with the judgment in that case, I am by no means prepared to agree with every dictum in that judgment. I am quite satisfied that the reference to general policy in that case by my Lord Chief Justice Abbott was going further than was absolutely necessary, and I think there is nothing here to show illegality.”

Sir James Burrough, the other judge, said: “The next point is that it is illegal. I am of opinion that on the face of this count there is no illegality. If it be illegal, it must be illegal either on the ground that it is against public policy, or against some particular law. I, for one, protest, as my lord has done, against arguing too strongly upon public policy; it is a very unruly horse, and when once you get astride it, you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail.” Further on in his opinion, he says: “As to the point of public policy, a great deal has been said, many cases have been mentioned, and in Blatchford vs. Preston, a great number of general phrases were made use of by the learned judge. But you ought not to govern courts of justice by general expressions used in the administration of the law. They may have some weight, but they ought not to govern; you must look to what the point of decision was.”

In Walsh vs. Fussell, 6 Bingham, 169 (19 Eng. Com. Law Rep. 83), Lord Chief Justice Tindal, in pronouncing judgment, said: “It is not contended that the covenant was illegal on the. ground of the breach of any direct rule of law, or the direct violation of any statute; and we think to hold it to be void on the ground of its - impolicy or inconvenience, we ought to be clearly satisfied that the performance of it would be necessarily attended with injury or inconvenience to the public.”

In order to ascertain whether the provisions of Girard’s will, — because they excluded ecclesiastics, missionaries and ministers of any sect from holding or exercising any station or duty in the college thereby founded, and limited the instructions to be given to the student to pure morality and general benevolence and the love of truth, sobriety and industry, thus excluding by implication all instruction in the Christian religion — were in contravention of the public policy of the State, the Supreme Court of the United States .held that they were not at liberty to travel out of the record to ascertain what were the private religious opinions of the testator, nor to consider whether the scheme of education by him prescribed was such as they themselves should approve, or as was best adapted to accomplish the great aims and ends of - education; nor could they look to the general consideration of the supposed interest and policy of the State of Pennsylvania on the subject, beyond what its constitution and laws and judicial decisions made known to them. Consequently they held that the question as to what is the public policy of the State, and what is contrary to it, if inquired into beyond these limits, would be found to be one of great vagueness and uncertainty, and to involve discussions which scarcely come within the range of the judicial duty and functions, and upon which men may and will “complexionally differ.” They therefore disclaimed any right to enter upon such examinations beyond what the State constitution, laws and decisions necessarily brought before them. Vidal et al. vs. Girard’s executors, 2 How. 127, 197 et seq.

Such was the view taken by Starnes, J., and Benning, J., in Adams, guardian, vs. Bass, ex’r, 18 Ga. 144 et seq., and 154 et seq., as to what constitutes public policy, and the sources from which the rules on that subject are to be derived.

We cannot think that the judge erred in refusing to charge the jury that, if they believed from the evidence that the will sought to be propounded was contrary to the policy of the State of Georgia, then they would be authorized to find against it. As to what constitutes public policy, and as to what contravenes it,' is not a question of fact for the jury, but is a question of law to be determined by the court. Any other rule than this would lead to confusion and injustice, and instead of settling, would go far to unsettle, the law upon this subject.

In Pierce et al. vs. Randolph et al., 12 Texas Rep. 290, Chief Justice Hemphill, as the organ of the court, says: “ But it seems that a new rule has been discovered by which to test the validity of contracts, and that is, the belief of the jury with regard to their tendency to immorality and breaches of the peace; and this even where such contracts have been declared by the courts of last resort to be valid in law, and to have all the force and efficacy which the law can impart to any contract. No doctrine more subversive of law and of private andpublic rights could have been devised. In fact, it sets them afloat upon public sentiment, to fluctuate and rise and fall with the ebb and flow of popular opinion, and when brought to trial, to succeed or fail, not according to the established rules of law, but upon the belief, the private opinions, or, in other words, the whims and caprices, of the juries before whom they were presented. The most sacred rights, those most cherished by the law, might be frustrated and defeated without any regard to law; a justice of the peace with his jury might deem them against morals, good order or public policy.” And after giving some striking instances of the dangerous tendency of such a practice, he continues: “It is the duty of both judges and juries to decide on rights according to the laws of the land, and not on their belief as to what ought to be law. Their office is not legislative; it is judicial; it is to administer the law as they find it, and not to exalt their own belief or notions above the law, and follow them as a higher code by which the rights of the community are to be regulated and controlled.”

Tried by these rules, we cannot say that Hickson’s will is unquestionably and beyond a doubt against public policy. We know of no constitutional provision or statute or any decision of our courts, nor are we aware of any principle of the common law, which holds it to be immoral or wrong for the putative father to make provision for his illegitimate child, whether that child be white or colored; or for the illegitimate offspring of such child, whatever the complexion of such offspring may be; or for any one who has lived in violation of the public law and thereby become a criminal, either to a greater or less extent, unless that provision is the result of a previous understanding that led to the commission of the offence and induced a breach of the law and sound public policy of the State.

We have seen that such an understanding is not to be lightly inferred from facts and circumstances of doubtful import and meaning, or which may admit of different constructions, one consistent with and the other opposed to unquestioned policy. The legislature has not seen fit to declare that the tendency of such provisions would be pro-motive of immorality, and would induce the formation and continuance of such illicit cohabitation, and for that reason, to prohibit them, as has been done by the provision cited from the code of Louisiana. Whether such inhibition would be good or bad policy, is not for us to determine. The question is one upon which there has existed, and still exists, a contrariety of opinion, as will be seen by what was said by Lumpkin, J., in the case of Beall vs. Beall, cited above. And' this being the case, its solution is entirely beyond the scope and functions of the judicial department of the government. If judges would avoid uncertainty and fluctuations in the administration of the law, and render it uniform and consistent, they should follow the admirable advice given by Lord Chancellor Bacon to 'a magistrate whom he was about to swear into office, “Look to your books for the law, and not to your brain.” Above all, they should not give themselves up to the guidance and direction of their feelings and sentiments, for this would unquestionably lead to excessive irregularity, fluctuations and doubt. They would then realize that the fame which follows is better than that which goes before, and would avoid the supreme folly of mistaking the plaudits and shouts of the multitude of their cotemporaries for the trumpet of fame. Loyalty to the law and rigid adherence to the rules it prescribes, is to the enlightened magistrate the plain path of duty, and in pursuing it he can fall into no error nor run into any kind of danger.

2. The next material question for consideration is based upon the ground that the will was procured by the fraud of Julia and Amanda in inducing David Dickson to believe that Amanda was his child, when she was not, and that her sons were the sons of Eubanks, when they were not. Among other instructions to the jury, the following appear in the general charge of the court: “If the testator was not deceived or misled in any way by the statements or conduct of another or others, then the paper should not be set aside for fraud.”

Again, “It is alleged that Amanda and Julia Dickson, or one of them, exercised undue influence over David Dickson’s mind, and that they deceived and misled him by making false and fraudulent representations to him concerning the paternity of Amanda and of her children, and thereby procured and induced him to make and execute this paper as his will. It is incumbent on the caveators to make these allegations appear by testimony, before you would be authorized to say that they are true. If the allegations as to the conduct of Amanda and Julia, which I have mentioned to you, have been established to your satisfaction by credible testimony, either circumstantial or direct, you should act upon the same under the rules given you in charge.”

At the request of the caveators, this charge was given: “If the will, or parts of the same, be the result of fraudulent practices upon either the fears or affections or sympathies of testator, then it, or the parts so produced, should be pronounced void. You are the sole judges of whether any such fraudulent practices have been shown by the evidence, or are fairly inferable therefrom. The court intimates no opinion on that subject.”

“ A will procured by misrepresentations or fraud of any kind to the injury of the heirs at law, is void.

“If the jury believe from the evidence that the legacy to Amanda Dickson and her children in this will constitutes part of one testamentary scheme, and that all the other legacies were intended to be parts of that one testamentary scheme, and if the jury further believe that the said legacy was procured by fraud, misrepresentation, or undue influence exercised by Julia or Amanda, or both, then the jury would be authorized to find against the validity of the whole will.

“ If the jury believe from the evidence that David Dickson made this will under the impression that Amanda was his natux-al child, and if they believe that the will, or so much thereof as relates to Amanda and her children, was induced solely by that belief; if they further believe from the evidence that Amanda was not his child ; then they would be authorized to set aside and declare void so much of said will as relates to said Amanda and her children.”

The court also charged, at the request of the propounders, “Fraud is never presumed; it must be proved, either by facts or circumstances. Before the will can be set aside for misrepresentations, it must appear that the misrepresentations were made, proved to be false, made in had faith for the purpose of procuring the will.”

To the latter portion of this charge various errors are assigned and are set forth in the 14th ground of the motion for new trial as follows :

(1) It was error to so speak of setting aside the will, or of a subsisting will, when the question was whether the paper propounded was a legal will; (2) it was error to say such representations, if false, must be made in bad faith if made to procure the will, and in saying that if false and in bad faith, they must have been for the purpose of procuring that will; (3) if in bad faith and false, they did procure the will; the purpose of the misrepresentations was immaterial; and it ignored the ground of mistake of fact in this caveat, as applied to which it was error.

Our analysis of this charge is, that the paper propounded as a will cannot be set aside for alleged misrepresentations, unless it appear from the evidence that such representations were proved to be false; that they were made in bad faith and for the purpose of procuring the paper propounded as a will. Standing alone, the latter clause in this charge would, we think, be error, and subject to the criticism made upon it. The issue actually presented was, that the representations were false, with whatever view or purpose they may have been made; and if they had the effect of procuring the will, whether they were made with that object or not, it would be quite immaterial, if they were false and they had the effect of procuring the paper propounded as a will; whether made for that purpose or not, the will should have been set aside; but taken in connection with other parts of the charge, especially those portions hereinbefore set out, we are unable to con-elude that the charge contravened or modified this view, or that the language of the court.admits of such restricted signification as has been attributed to it. We think it altogether probable that the jury could not have been misled or confused by the use of the terms employed, and induced to believe that the said representations must have been made with the design to procure the will. Indeed, they were expressly charged, at the request of caveators’ counsel, “if they believed from the evidence that David Dickson made this will under the impression that Amanda was his natural child, and if that will, or so much thereof as relates to Amanda and her children, was induced solely by that belief, and they further believe from the evidence that Amanda was not his child, then they would be authorized to set aside and declare void so much of said will as relates to Amanda and her children.” This and other charges given would seem to render the exception to the portion of the charge in question nugatory and groundless. Besides, there is no allegation in this motion for new trial that the finding of the jury upon this point was contrary to evidence. All objections to the verdict on this ground, seem to have been waived; and had they not been so waived, we are satisfied, from the overwhelming preponderance of the testimony, that Amanda was the natural child of David Dickson, and he could not have acted under any mistake as to that fact in the execution of his will; there is hardly a suspicion raised in the proof that Amanda’s children were not the sons of Eu-banks. So this ground of the motion does not appear, as whole or as to its separate parts, to rest upon any solid foundation. It is barely possible, though not at all probable, that Amanda may have been the child of another than David Dickson. There is scarcely a possibility that her children could have had any father other than Eu-banks.

3. The remaining ground of the motion for new trial to be considered is as to the influence exerted over David Dickson by Amanda or her mother, and which induced him to make this will. Apart from the representations as to the paternity of Amanda and that of her children, we are unable to ascertain that any effort was made by either of these parties or others to exert any influence over the testator, nor is it made clear that he was subject to such influence, or that his will was so weak and his purpose so infirm as to justify the belief that either could have been controlled or overcome in that manner.

4. As to the remaining grounds of the motion for new trial, we feel satisfied that they are destitute of any such merit as would authorize us in interposing to set aside this will. Indeed, we cannot say that there was error either in selecting the jury from the panel of the grand jury or in drawing and summoning that panel, or in the reception or rejection of testimony, etc., or in the assignments of error to the various charges as given or refused of which complaint was made, or in the rules laid down for judging of the credibility of certain witnesses who testified in the case, or lastly, in refusing to hold Turner and Middlebrooks, two of the jurors who tried the case, to be biased or prejudiced. They do not appear to have been operated on by outside, and improper influences, and for that reason to have been incompetent and disqualified to sit as jurymen.

From aught that appears to the contrary, the trial was fair, and under our view of the law, would not probably result differently upon another hearing. We repeat that we are satisfied that if any error existed at all in the various rulings and charges of the court, it was immateral.

Judgment affirmed.