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time for the assertion of the rights of those under the disability of infancy by giving them fifteen years in any event, or ten years after disability removed, in which to bring the action, and it is immaterial which period shall first expire. It was therefore properly refused.

By the third instruction the court was asked to charge the jury that if the plaintiff, after Martha A. Linton became of age, permitted the defendant to expend large sums of money in the improvement of the land, without notifying him of their claim, they cannot recover; and

By the fourth instruction the court was asked to instruct the jury that if they believed that Martha A. Linton had not disavowed the deed, but allowed the grantees therein and the defendants to hold possession of the land and to expend money and labor thereon, in permanent improvements, that they should find for the defendant. The first of these two instructions, in effect, affirms the proposition that mere silence on the part of the infant, for a period short of the statutory limit, within which an action of ejectment may be brought, will bar the right of the infant to recover. Such, however, as we have before seen, is not the law; and this instruction, therefore, was properly refused. As to the fourth instruction, we have only to say, that it is not necessary, in this State, for the infant to do more than bring his suit within the proper time; that is all the disavowal of his deed that is required by the law here. See Bedinger v. Wharton, 27 Gratt. 870; Mustard v. Wohlford's Heirs, 15 Gratt. 329.

The only remaining question is whether this action was instituted within the proper period for the bringing of an action of ejectment; and upon this point we are all agreed that it was. The right of action accrued on the eighth day of September, 1857, and the suit was brought on the sixth day of September, 1876, the actual period, therefore, which intervened between the date of the conveyance of

Opinion.

the infant and the date of the bringing of the suit for its avoidance, was eighteen years, eleven months and twentyeight days. Now, without undertaking to say whether the whole period between April 17, 1861, and January 1, 1869, should be excepted, that being unnecessary for the decision of this case, we are all clearly of opinion that the period excepted by the act of assembly, passed March 2, 1866 (see Acts 1865-66, p. 191), and known as "An act to preserve and extend the time for the exercise of certain civil rights and remedies,"-to-wit: four years, ten months and fifteen days-must be excepted, and this brings it within the fifteen years allowed by the statute, within which an action of ejectment may be brought.

Upon the merits, we think that there is no reason for the complaint of the defendant that the infant stood by and saw improvements being put upon this property without giving any evidence of disavowal. On the contrary, the facts clearly establish that the infant, within two days after her conveyance was made, left the neighborhood and went to another State to reside, and has never been in that vicinity but once since, and then only for a brief period. And as to the alleged improvements, it is equally clear that they were only such as were incident to the cultivation of the land, the profits of which the defendant has enjoyed. Upon the whole, we are of opinion that the judgment appealed from is right, and must be affirmed.

JUDGMENT AFFIRMED.

Syllabus-Statement.

Richmond.

MONTAGUE AND WIFE V. ALLAN'S EX'OR AND ALS.

February 14th, 1884.

1. WILLS-Devisavit vel non-Exceptions.-Upon the trial of an issue devisavit vel non, the mode of proceeding is substantially the same as upon the trial of common law actions. Where parties submit to the rulings of the court without exception, they cannot be heard here, and now to insist on the error, if any, as ground of reversal. Lambert v. Cooper's Ex'or, 29 Gratt. 66.

2. TESTAMENTARY CAPACITY—Old age-Memory.—If failure of memory be merely such as is incident to old age, it does not affect testamentary capacity.

3. IDEM-Physicians.—Physicians are considered as occupying high grade as witnesses as to testamentary capacity, especially a physician who has attended the patient through the disease which is supposed to have disabled his mind. Cheatham v. Hatcher, 30 Gratt. 65.

4. NEW TRIALS.-When some evidence has been given which tends to prove the fact in issue, or the evidence consists of circumstances, or presumptions, a new trial will not be granted merely because the court if upon the jury would have given a different verdict. Grayson's Case, 6 Gratt. 712.

5. WILLS-Knowledge of contents.-The jury must be satisfied that the testator knew the contents of the will at the time of executing it; but they may be so satisfied, and such knowledge may be proved by circumstantial evidence, direct evidence not being indispensable.

6. IDEM-Confidential relations.—-A will is not invalidated by the mere fact that it was written by the attorney, agent, physician, priest or other confidential adviser of the testator, who is himself a beneficiary ; though such relations may engender a suspicion and arouse the vigilance of the court and jury, and if unexplained or repelled, might annul the transaction.

Appeal of D. P. Montague and Genevieve, his wife, formerly Genevieve Allan, from decree of chancery court of

Statement-Opinion.

city of Richmond, pronounced February 24th, 1883, in suit wherein appellants were plaintiffs, and George W. Mayo, executor of Louisa G. Allan, deceased, and others, were defendants. The object of the suit was to annul the instrument propounded as the will of the decedent, and the issue was "devisavit vel non," and the complaint is of the verdict and the decree founded thereon, which were in favor of the defendants. Opinion states the facts.

Joseph Christian and John Lyon, for the appellants.

Jones, Kean & Nelson, for the appellees.

FAUNTLEROY, J., delivered the opinion of the court.

On the 2d of April, 1881, Mrs. Louisa G. Allan, of Richmond, executed and acknowledged her last will and testament-a paper drawn by Mr. George W. Mayo, who was named as one of the executors, and whose wife was a large beneficiary. The testatrix died on the 24th of the same month. The will was admitted to probate by the chancery court for the city of Richmond April 27th, 1881, when Geo. W. Mayo qualified as executor.

On September the 5th, 1882, Miss Genevieve Allan (who since the institution of the suit has intermarried with D. P. Montague) exhibited her bill in the said chancery court, in which, after reciting the probate of the paper aforesaid, and stating that she is one of the three heirs-at-law and distributees of Louisa G. Allan, deceased, she alleged that Mrs. Allan, when she signed and acknowledged the will or testamentary writing aforesaid was insane; that she was not of sound mind; that she was mentally incompetent to make a lawful will, and that the paper in question was procured by George W. Mayo, who was the confidential agent and adviser of the testatrix, by the selfish exercise of undue VOL. LXXVIII-75

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influence over her mind, enfeebled by injuries, disease and age.

Mayo, his wife and some other defendants, answered the bill; the cause was matured; and the chancellor directed the trial of an issue, devisavit vel non, at the bar of the court. At the close of the evidence, of which a great deal, both oral and written, was introduced before the jury, the plaintiffs in the issue (the appellees here) requested the court to give certain instructions, which the court did give, without objection or exception from the defendants in the issue (the appellants). Upon the trial of the issue, the jury failed to agree upon a verdict; but upon a second trial, at a subsequent term of the said court, the jury found a verdict sustaining the said paper of April 2d, 1881, in all its parts and provisions, as the true last will and testament of Louisa G. Allan, deceased. Upon the recordation of this verdict, the defendants in the issue moved the court to set aside the verdict of the jury and to grant a new trial on the said issue; and the court took time to consider thereof. On the 24th February, 1883, the court overruled the said motion to set aside the said verdict of the jury and to grant a new trial on the issue directed in the cause; and pronounced its decree, in conformity with the said verdict of the jury, that the will of the testatrix, Louisa G. Allan, admitted to probate in the said court on the 27th day of April, 1881, is the true last will and testament of Louisa G. Allan, deceased; and the court dismissed the bill of the complainants with costs. From this decree the appeal is taken, and this court is now to decide whether there is error in the proceedings of the court below, as disclosed by the transcript of the record in the cause.

That the will was properly executed, according to the statute, there is no room for contention, and there is none: it was signed, sealed and acknowledged by the testatrix, in the presence of two witnesses, who, at her request, in her