¶1concurring.
¶2The Court are unanimous, that all of the decisions complained of, except two, ought to be affirmed. As to those two, they are not unanimous. Judge Lumpkin and myself, thinking, that those two were erroneous, Judge McDonald thinking, that they were not erroneous. The opinion of the Court, on all of the decisions complained of, except those two, will be stated by Judge McDonald.
¶3Of them, the first is thus set forth in the bill of exceptions: “ While R. P. Trippe, Esq., was on the stand under cross examination by caveator’s counsel, caveator offered a paper, to be used in evidence, purporting to be a compromise in writing, made by him to James M. Parsons and Elza Holsten, two of the propounders, and asked him, if that paper was not submitted to him by one of the counsel for caveator, *631as a compromise, and which paper was in the following words, viz: “I propose to J. M. Parsons and Elza Holsten, to divide with them, equally, the money, and notes, and negroes, given me by my father’s will, executed in July, 1845, provided, they will agree to divide with me, equally, at my mother's death, the share which she takes in the same will— this proposition to be accepted, or refused in ten days. October 6th, 1S56,”
¶4“The paper was objected to by the counsel for propounders. Counsel for caveator in his argument before the Court, on this objection, stated, that he expected to prove by another witness, what Dr. Parsons, (one of the propounders,) said in reply to that compromise.” And what Dr. Parsons said in reply to it, was as follows — “If this proposition is accepted, will the old will be set up?” . Col. Pinckard, replied: “ Yes, except so far as it is annulled by the terms of the proposition” — Parson’s replied: “Do you think I would accept such a proposition as thatand rejected it.
¶5The Court rejected the evidence, and that is the decision complained of.
¶6The question, therefore, is, was the decision right ?
¶7In other words, was the caveator entitled to have before the jury, Parsons’s reply to the proposition?
¶8The will of 1845, made provision for the wife and children of Parsons, but made none for Parsons himself. The reply of Parsons betrays extreme hostility to that will. The property which C. M. Lucas thus proposed to divide with Parsons and Holsten, was valuable, amounting, according to some of the testimony, to, as much, I believe, as forty thousand dollars, yet Parsons’s repugnance to the old will was so great, that he preferred to reject a third of this property, and stand the chances for establishing the new will.
¶9It is true then, that his hostility to this old will, was extreme.
¶10Was it competent in the caveator, to show, that Parsons entertained such a feeling of hostility to that will? The an*632swer to this question, depends on whether that fact would, or would not, be material to any of the issues.
¶11Among the grounds of the caveat, are these two; that the new will was obtained by the propounders, by undue influence ; that it was obtained by fraud. Parsons was one of the propounders. Among the issues then, were those of undue influence and fraud, in Parsons. Now, whatever was material to these, two issues, was admissible in evidence-And it was, certainly, material to those issues, whether Parsons had, or had not, a motive or cause, for resort to undue influence or fraud; as, it is material, on an issue of murder, whether the accused had, or had not, a motive to kill. True, in this last case, the mere existence'of the motive, (hate or .friendship,) is not sufficient to establish guilt or innocence — • ■ but, still, it is a fact material to the issue of guilt or innocence. So, although, it may be true, that the mere existence in Parsons of a motive for a resort to fraud or undue influence, would not be sufficient to convict him of fraud or undue influence, yet it would equally be a fact material to the issue, whether he was, or was not, guilty of the fraud or undue influence. It would be a fact, which, though, not sufficient of itself, to establish guilt or innocence, might be sufficient, with other facts, to do so.
¶12If then, there existed in Parsons, a motive for the use of fraud or undue influence, it was a fact material to the issues as to fraud or undue influence, and therefore, was a fact admissible in evidence on those issues. And, of course, any facts going to show this fact; that is, going to show the existence of this motive in Parsons, would also be admissible.
¶13Now extreme hostility in Parsons, to the old will, would be a fact going to show a motive in him to resort to any means, not excepting fraud or undue influence, to get rid of that will. Therefore, any fact going to show this hostility in him, would be admissible as evidence. His reply to the proposition for a compromise, was a fact going to show this hostility. A
¶14*633My conclusion, then, is, that (his reply was admissible as evidence. Of course,-I think, that the proposition ought logo with it, to make it intelligible. What it would be worth, when admitted, would depend on what other facts were in evidence. By itself, it would not be suflicient, to establish fraud or undue influence.
¶15The other of the two decisions, is, the decision that the verdict was not decidedly and strongly, against the weight of the evidence. In my opinion, this decision was erroneous. In my .opinion the verdict was decidedly and strongly, against the weight of the evidence. The evidence is voluminous, and it would take much more time,, than I have to spare, to give my reasons iri detail for this opinion. 1 will simply remark, that, as Littleberry Lucas had been found a lunatic by due judgment of a proper tribunal, which judgment was still in force when the new will was made, the onus was on those who propounded that will, to show, beyond a reasonable doubt, that he was not a lunatic at the time when he made that will. This I think, they were far from showing.
¶16 The opinion of Judge McDonald here referred to, has not been furnished to me. — Reporter.