One of the subscribing witnesses to the will, Godfrey, testified, “that he could not say with certainty that the testator was awake when the will was witnessed, but thought he was.”
The other subscribing witness testified, “that the testator was asleep, he thought.”
It would be difficult to determine which of these witnesses was most in doubt, and, certainly, neither of them was positive.'
Ills Honor charged, “that when two witnesses of equal respectability, with equal opportunities, testify as to any particular fact, and one testifies positively, and the other is uncertain, the law gives the greater weight to the positive testimony.”
■ This truism, although not precisely applicable, was not calculated to mislead, and we cannot see that it did mislead the jury, in regard to the fact of the testator’s being awake at the time the will was attested.'
One of the subscribing witnesses (Godfrey) testified also, “ that he believed the testator was of sound and disposing mind and memory, and knew what he was doing.”
The other subscribing witness testified “that he thought the testator was not of sound mind, and did not have capacity to make a will.”
Here again the witnesses, both alike, express only their opinion ; and neither is more positive than the other. So that his Honor’s charge could not have misled.
After the jury had retired for deliberation, they returned *301into Court, and asked his Honor, “ whether the witness, Godfrey, testified positively that the testator was of sound mind, or whether he said he was under that impression ”? His Honor answered, that the counsel differed as to the language of Godfrey, and he had not taken a note of it, and left it with the jury to determine what he said.
The plaintiff insists that it appears from this, that the jury-supposed that his Honor meant by his former charge to tell them that Godfrey had sworn positively. We do not see clearly that it does so appear; yet we think it probable that he did. Grant that he did, and then how stands the case? His Honor charged that the plaintiff’s witness swore positively, and is to be believed rather than the defendant’s witness, who swore dubiously; and the plaintiff objects to the charge! If it had been supposed that the Judge had intimated that the other subscribing witness had sworn positively that testator was not of sound mind, the plaintiff might have excepted with reason.
It may be proper to say, that capacity is seldom a matter to swear positively about. It is only in very decided cases that a witness can do more than express his opinion. In most cases, and probably in this case, only a bold witness would be positive. It is seldom, therefore, that the doctrine of affirmation and negation, and of positive and doubtful evidence, can have any application in questions as to the capacity of a testator. It was inapplicable in this ease but we do not see that it could have done the plaintiff any harm.
There was nothing improper in the manner of recording the •verdict.
There is no error.
Per Curiam. Judgment affirmed.