more than the rest, which would be unjust. He revokes that will, leaving his property for distribution under the laws of Georgia. It was the same as if he had said, "I leave my property to be equally divided amongst my wife and children." It was a bequest of his entire estate to his wife and children. They were legatees, therefore, and the paper was a will. It disposes of his property differently from his first will. It is Baid, however, that the paper is inoperative as a will, because it disposes of the entire estate precisely as the law would distribute it, and the heirs at law in such case take by descent, and not by purchase, that is, under the will.

The reason of the rule in England to that effect does not apply in this state. It was adopted in that country in favor of the lord for the preservation of his tenure, and of creditors for the preservation of their debts: 1 Powell on Dev. 421. In England an estate in chattels is not transmissible to the issue, and is incapable of any kind of descent: Knight v. Ellis, 2 Bro. C. C. 578. Chattels go to the executor or administrator, and are held in trust by them, first for creditors, and then for those entitled under the will or the statute of distributions. In this state there is no distinction in respect to the payment of debts between real and personal estate, except that real estate must not be so applied until the personalty is exhausted, and then only by making it appear that it is for the benefit of the parties interested that it should be sold. Hence the lands as well as personalty go, in this state, to the executor or administrator for the payment of debts, and creditors are not driven to a proceeding against the heirs at law for the recovery of their debts, after exhausting the personal assets. There is, therefore, no reason for the rule contended for, and a will embracing real and personal estate here is just as good as a will of personalty to the same purport would be in England. There are many reasons why a will of this sort should be sus tained, but it is unnecessary to incumber this opinion with them. We think that the paper is testamentary in its character, and that the court of ordinary had jurisdiction over it.

The court acted properly in submitting the paper to the jury. It was not a case in which the paper was relied on as evidence of title; but it was itself the subject of the suit, and the questions were on the paper, whether it was the will of the deceased made and executed by him under circumstances which entitled it to probate as a will. On such an issue, the instrument should be presented to a special jury, precisely as it is to the ordinary,

whose duty it is to pass upon it primarily. The reading it to the ordinary, or to the jury, gives it no validity whatever. It only discloses the subject to which the testimony is to apply, and in many cases it is necessary to a correct application of the testimony by the mind of the court or jury that the instrument should be before them. The result depends almost entirely on the testimony extrinsic of the will, and its contents are seldom-I may say, perhaps never-considered when extraneous evidence makes out a clear case of capacity and uninfluenced testamentary intention.

The subscribing witnesses were allowed to testify that they subscribed in the presence of the testator. This testimony does not contradict the attestation clause, and the court below committed no error in admitting it.

We overrule all the grounds of special exception made in the record to the charge of the presiding judge to the jury. We think that he laid down the law fairly and accurately, and quite as favorably to the caveator as he was entitled to have it, as far as he went, and it was a very full charge, with one exception. Indeed, the exception to the charge set forth in the seventh ground of the motion for a new trial is not borne out by the evidence given on the trial. It is too much to assume that the paper propounded as a will showed a total departure from former testamentary intentions long adhered to, without any adequate or rational motive or reason for the same, when the testator had expressed dissatisfaction with his former will, before he became deranged, to as many as three witnesses, Woodward, Jackson, and Banks, and assigned to some of them very good reasons for desiring to make a new will. This request was very strong in favor of caveator, and it was given in the language of the request; but the exception is to the remark made by the court to the jury, "but such doubt must exist as to the capacity of the testator, at the time of the execution of the will.” This addendum of the court is identical in substance with the charge as requested, and as it was given, unless a distinction is drawn between the "making" and the "execution" of the will; and if there be any distinction, the court was correct in its explanation in confining the doubt to the time of the execution of the will.

The fourth ground in the motion for a new trial is a general exception as to the meaning of the terms "testamentary capa city," as applicable to this case.

One of the grounds in the caveat is, "that at the time of

the execution of the will the testator was laboring under an insane delusion or hallucination as to caveator, and was therefore greatly prejudiced against him."

The charge of the court was, that if the deceased was labor. ing under a delusion of mind on any subject at the time of the execution of the will, and the will was the result of that delusion, then it is void, though he might have been sane on all other subjects; but unless the will was the result of such delusion, his will is not vitiated by partial insanity or delusion on a subject not affecting his mind when the will was made. The definition of the term "delusion" is given correctly; but we think that although the charge of the court was correct as to the effect of delusion generally, yet as the caveat charged the will to be the result of a special delusion against the caveator, the attention of the jury ought to have been called specially to that issue. The deceased had been a lunatic. This was conceded on all hands. His lunacy was not traceable to any fact or circumstance connected with the caveator, but when in that condition it is manifest that he was impressed most unfavorably towards him, and apparently without adequate cause. If he was subsequently restored to his reason in all respects, except as to the feeling towards his son, conceived when in an insane state of mind, and if he continued to suppose that his conceits, formed when in that condition, were true, when they were not true, and if he acted in making his will as if they were true and under a firm persuasion that they were true, and the will was the result of that delusion, it ought not to stand. But, on the other hand, if the deceased, before his derangement, had intended to make another will, and had made that intention known, and the will made is in conformity to such declared intention, a mere resentment against his son not amounting to a delusion will not vitiate the will. We think, however, that these things ought to have been submitted to the jury, so that their minds might have been brought to act upon them.

There is some evidence on both sides of the proposition, and we think that the mind of the jury ought to have been directed by the court specially to the question whether the will was the offspring of delusion or the result of antecedent intentions of the deceased when he was unquestionably sane. Because it was not done so explicitly as in our judgment it ought to have been done, we reverse the judgment of the court below and order a new trial.

In regard to the other grounds in the motion for a new trial,

I will say that my brother Benning entertains a very decided opinion that the verdict of the jury is contrary to the evidence in the case. He thinks that it was not sufficiently established that the will was executed during a lucid interval; that the weight of the evidence is decidedly against it; and further, that in the weak condition of the mind of the deceased, the evidence justifies the conclusion that the will was the result of undue influence. This, however, is not the judgment of the court. While my brother Lumpkin's mind inclines to a concurrence with brother Benning, in his view of the case, he does not so strongly coincide with him as to warrant him in putting his judgment on that ground.

It is with great distrust of my own judgment that I ventured to differ with my brethren in matters of law or fact, but I must say that I differ from them in this instance. If the son had been disinherited by the father, I should most unhesitatingly have concluded that an act so inconsistent with the strong affection and partiality of the deceased, expressed through his life, when he was unquestionably sane, for his obedient and faithful child, must have been the offspring of a disordered mind, or of a sinister and overpowering influence.

But such is not the case. He is put on a footing of equality with other children of the testator. There is evidence of the declarations of the testator, when there was no question of his sanity, that he intended to make just such a will, with the exception that no mention was made of his wife. But it is not to be presumed that he intended to disinherit her. There is evidence on both sides of the question of a lucid interval at the time of the execution of the will, which, together with all the testimony in respect to extrinsic influence exerted over the testator, was submitted to the jury. The will is in accordance with the natural affection and parental duty of the deceased. These are circumstances which bear strongly on my mind in forming a judgment in this case.

On the other hand, it is said, and I admit that it is entitled to much consideration, that there are provisions in the first will which are not found in the last, and which seem to have been favorite projects with the deceased: first, to make his grandchildren as nearly equal as possible; and secondly, to secure to the separate use of his married daughters the property he gave to them. But his intention in that respect may have undergone a change, and this discrepancy in the provision of the wills is not to be imputed to lunacy at the time the last was executed.

These matters are all to be reviewed by the jury under the exposition of the law by the court, and we have said as much as it is proper to say under these circumstances.

Judgment reversed.

INSANITY, IMBECILITY, OR DOTAge to InvalidATE WILL: See Addington ▼. Wilson, 61 Am. Deo. 81; Kirkwood v. Gordon, 62 Id. 418; Taylor v. Wil burn, 64 Id. 186; Taylor v. Kelley, 68 Id. 150, and notes. As to partial insanity invalidating a will, see Potts v. House, 50 Id. 329; Trumbull v. Gibbons, 51 Id. 253.

DEVISE TO HEIR OF SAME ESTATE WHICH HE WOULD TAKE BY DESCENT, effect of: See Gilpin v. Hollingsworth, 56 Am. Deo. 737.

DOSTER v. BROWN.

[25 GEORGIA, 24.]

WANT OF DATE IN MEMORANDUM-BOOK IS NO OBJECTION TO ITS ADMISSION IN EVIDENCE to prove an account. The date of the account may be proved by other evidence.

MEMORANDUM-BOOK HAVING ALTERATIONS AND ERASURES IN AMOUNTS, kept by a party himself, is not admissible in evidence.

WITNESS MAY GIVE OPINION AS TO CAPACITY OF PERSON AS MILLWRIGHT, founded on work done by such person, where the witness is a mill-owner of twenty-five or thirty years' experience.

ARGUMENT OF COUNSEL MAY BE ARRESTED BY COURT, where there is no evidence to support the argument.

PARTY CANNOT RECOVER ON SPECIAL CONTRACT AMOUNT CONTRACTED TO BE PAID for work to be done, where the work was not done because he was prevented by act of God from finishing it; although in such a case he might be entitled, in quantum meruit, to recover for materials furnished and work done, if they were worth anything.

ORDINARY FRESHET IS NOT ACT OF GOD, in the legal sense which protects a man against responsibility for the non-performance of his contract. ACT OF GOD INURES AS EXCUSE AND RELIEF OF BOTH PARTIES TO CONTRACT; if it legally releases the one from executing a work he has undertaken, it equally protects the other from paying for more than he has done.

NEGLIGENCE AND UNSKILLFULNESS MAY BE SHOWN IN DEFENSE TO ACTION ON SPECIAL CONTRACT for work done, whether there was an express warranty of the work or not.

ASSUMPSIT for work done by the plaintiff in the erection of a mill for the defendant. The facts of the case and the questions which arose are stated in the opinion.

Powell, for the plaintiff in error.

Sims and Erskine, contra.