GIBSON VS. GIBSON. This court has repeatedly determined that in civil cases, when there is conflicting testimony, it will not reverse the judgment of the circuit court because the verdict is against evidence, unless the preponderance of evidence be great. Upon the trial of an issue of devisavit vel non, the legal effect of the words of a bequest, as vesting the entire and absolute interest, when from the proof the testator only intended a life estate, is incompetent and insufficient evidence to prove fraud in obtaining the will. Attesting witnesses to a will, and they only, are permitted to give their opinion merely, and without cause or reason assigned, of the testators state of mind Physicians may state their opinion of the soundness of a testators mind, but they must state the circumstances or symptoms, from which they draw their conclusions. The opinions of witnesses, other than the subscribing witnesses, to a will, considered merely as opinions, are not evidence; but having stated the appearance, conduct, conversation or other particular facts, from which the state of his mind may be inferred, they are at liberty to state their inference, conclusion or opinion, as the result of those facts. A paper, purporting to be the last will and testament of John Gibson, deceased, was offered for probate, in the county court of county, which being objected to, the court directed an issue to be made up, to try whether the paper of fered for probate, was his last will or not. The jury, upon the trial in the circuit court returned a verdict, that said paper, was the last will and testament of said John Gibson, deceased. A motion for a new trial was made by the defendant, and overruled by the court, and an appeal in the nature of a writ of error, prosecuted to this court. All the testimony upon the trial is set out in the bill of exceptions, which however, it is believed unnecessary to state, as no question of law arose upon it, and as it was not of a character to induce the court to set aside the verdict. A principal ground of defence was that the will was obtained by the widow, by fraud. As a circumstance to establish the fraud, the defendant insisted, that certain slaves given to the widow and limited over after her death by the terms used in the will, vested the entire and absolute estate in her, whereas the testator only intended her to have a life estate, and that the language used in the will, was intentionally inserted to give KNOXVILLE. June, 1836. Gibson V Gibson KNOXVILLE, the entire interest. To prove which, Thompson, one of the June 1836. Gibson V Gibson subscribing witnesses, was upon his cross examination, asked "whether the testator negatived any one proposition made by the wife to him respecting the disposition of his property," to which he answered that he did in one particular, and that was in answer to a request from the wife, that as to the negroes left to her, she should be allowed to do with them as she pleased at her death. This request by her was not granted by the testator. Upon this part of the case, the circuit judge was of opinion the evidence was irrelevant. He also was of opinion that the legal effect of the terms used, only vested a life estate in the widow, and that the limitations over were valid. To this opinion, exception was taken. Upon the trial of the cause, the defendant asked several witnesses, who were not subscribing witnesses, and who had stated the conduct and conversation of the testator, their opinions as to the state of the testators mind and capacity at the time the will was made. This evidence was objected to, and the objection sustained by the court. To this exception was also taken. The facts of the case, and opinion of the circuit court, are particularly adverted to in the opinion of this court delivered by judge Reese, and which is here referred to. Jos. Williams, and John Williams, for plaintiff in error. Pryor Lea, for defendant in error. REESE, J. delivered the opinion of the court. Three distinct grounds have been taken by the plaintiff in error, upon which a reversal of the judgment of the circuit court is claimed. First, that the verdict of the jury which affirmed the contested paper, to be the last will and testament of John Gibson dec'd., is not sustained by the testimony heard on the trial, but that the weight of the testimony was in opposition to the verdict, and that the circuit court ought on that ground to have granted a new trial. We have repeatedly determined during the present term, and such is the uni June 1836. Gibson V Gibson form course of this court, that the judgment of the circuit KNOXVILLE, court will not, in a civil case where there is conflicting evidence be reversed upon this ground, unless the preponderance of proof against the verdict be great. This rule, founded as it is in the difference which exists in the very constitution of the circuit court, and of this court, in the mode of ascertaining and investigating facts, stands at this time of day, in no need of elaborate vindication. It commends itself readily and at once, to the approval of every enlightened judgment It is enough to say that in this case great preponderance does not exist. Secondly. The second ground upon which the plaintiff in error insists that the judgment should be reversed, is that the court erred in not charging the jury as requested by plaintiff, "that the widow of deceased, took an absolute estate in the personal property bequeathed to her by the testator, but on the contrary, in charging them that she took only a life estate in the said property, and that the limitation over was good." The pertinency and materiality of this exception, it is argued, arises from the fact, that Thomson, one of the attesting witnesses called in support of the will, was upon cross examination asked "whether the testator negatived any one proposition made by the wife?" He answered that he did in one particular, and that was in answer to a request from the wife, that as to the negroes left to her she should be allowed to do with them as she pleased at her death. Those words are not in the will, and the request, if made, was in terms negatived; yet it is said that the legal effect of the words in fact used by construction and operation of law, an investment widow, of the absolute interest. It needs nothing It needs nothing more than a distinct statement of this ground to show that it ble. The rules of law in the construction of instru, and the rules of property, may often defeat the purpose of a test ARY tor, but this surely will not prove that he who drew he will or those interested under it, have been guilty of fraud. what in point of legal operation is the amount of Mrs. Gibson's interest under the will, it would be at this time not only unnecessary, but improper for this court to decide. not femalesb The third ground is, "that the court erred in not permitting KNOXVILLE. Gibson V Gibson the witnesses, other than the subscribing witnesses or the physicians, to give their opinions as to the testators sanity." This is the language of the court in the bill of exceptions. In another part of the bill of exceptions, it is stated that Thomas McMillan, a witness for the plaintiff in error, said he was there on the day that the will was made, "that the testator seemed to be in great agony, his voice was feeble and broken, and that he did not understand one word that testator uttered while witness was in the house." He was then asked by the counsel for the plaintiff in error, "whether from the situation in which he saw the old man on that morning, and from the facts he had just stated to the jury, he believed the old man was then in his senses and capable of making a will?" Objection having been made to this question; the objection was sustained by the court. The latter part of the question, "capable of making a will," as it involved a question of law and fact, and the very question to be determined by the jury, was entirely illegal. But taking the general statement above quoted from the bill of exceptions, with this instance of its application, together, we understand the circuit court to have ruled, that a witness other than an attesting witness or physician, should not, (having detailed the conduct, situation or conversation of testator,) be permitted to state the impressions he felt, or the opinions he formed as to the state of mind of the testator. Whether this be correct, is a question involving considerations and consequences of much delicacy and importWe have looked with anxiety into some of the cases; those in 3 Mass. R. 237: 4 Mass. R. 593: 7 Serg. and Rawl. 92: 8 Mass. R. 371. Although we find them not very satisfactory, yet upon the whole, on grounds of authority, and especially on grounds of principle and reason, we think the following propositions correct. First, attesting witnesses and they only, are trusted to give their opinion merely, and without cause or reason assigned, of testator's sanity. Secondly, physicians may state their opinion of the soundness of a testator's mind, but they must state the circumstances or symptoms from which they draw their conclusions. As to all others, their opinions, considered merely as opinions, are not evidence. But having stated the appearance, conduct or ance. conversation of testator, or other particular fact, from which (KNOXVILLE liberty to state result of those his state of mind may be inferred, they are at it is true, the error of the circuit court upon narrow grounds; June 1836. Campbell V The State. CAMPBELL vs. THE STATE. A defendant who has been acquited upon one of several counts in an indictment, is entirely discharged therefrom, nor can he a second time be put upon his trial upon that count, Where a defendant has been acquitted on sonie counts and convicted upon others, a motion for a new trial made by him generally, is only applicable to the count upon which he was convicted, and if the court sets aside the whole verdict, it is erroneous. The defendant was acquitted upon the first and third counts but convicted on the second. He moved for a new trial which was granted, and the entire verdict set aside by the court. Upon the second trial, he moved the court to put him on trial upon the second count only; this the court refused. Upon the second trial he was acquitted on the first and second counts, and convicted on the third. Held; that it was error in the court to set aside the verdict entirely, and that plaintiff was entitled to judgment of acquittal upon the first and third counts, because upon these he was acquitted by the jury upon the first trial, and that he was also entitled to judgment of acquittal upon the second count, because he was acquitted on that count upon the second trial. court of The plaintiff in error was indicted in the circuit Blount county, for larceny. In the first count, he was charged with having stolen a fifty dollar bank note; in the sec |