Opinion of the Court. fact which is to precede it, we mean that it may be done in twelve weeks or eighty-four days, or, as the case may be, that it shall not be done before." Further, the object of a notice is to enable the parties affected thereby to be present and obtain a hearing. The caveators appeared and without seeking further time, for the purpose of securing additional testimony or preparing for the hearing, went to trial on the issues submitted to the jury. They at least cannot claim to be prejudiced by any defect in the notice. But the substantial question is whether the court erred in taking the case from the jury and directing a verdict sustaining the will. The questions submitted for consideration were whether the testator was at the time of executing the will "of sound mind, capable of executing a valid deed or contract;" whether the will was "procured by the threats, menaces and duress exercised over him (the testator) by Samuel H. Lucas or any other person or persons," and whether it was " procured by the fraud of Samuel H. Lucas or any other person or persons." Although jurors are the recognized triers of questions of fact, the power of a court to direct a verdict for one party or the other is undoubted, and when a court has done so and its action has been approved by the unanimous judgment of the direct appellate court, we rightfully pay deference to their concurring opinions. Patton v. Texas & Pacific Railway Company, 179 U. S. 658, and cases cited. An examination of the testimony satisfies us that there was no error in directing the verdict. The testator was seventy-three years old, white, childless, unmarried, his nearest relatives being cousins, the plaintiffs in error. He had lived in this District for at least twenty years. He was a man positive in his opinions, not easily influenced, of strong religious convictions and much attached to his church. His business was that of a florist. He owned two or three parcels of real estate of the value of about $8000, and also a little personal property worth something like $300. The devisee was Samuel H. Lucas, a young colored man, with whom alone he had kept house for ten or a dozen years, such relation commencing at his invitation and continuing by his wish. For some years Lucas had the general management of the business. Testator's illness VOL. CLXXXVIII-33 Opinion of the Court. was brief, lasting only eight days. He died on December 21, 1896, between 12 and 1 o'clock. Early in the morning of that day, between 9 and 10 o'clock, the pastor of the church to which he belonged called, and to him he said: "Pastor, I did not expect to go so early; there are some things which I wanted to perform and have neglected. I wanted to give the church a parsonage. I cannot do it now; it is too late. I will be unable on account of the laws of Maryland, which apply to the District of Columbia, to do anything of that sort, for they will not allow a man to do anything of that sort within thirty days of the time of his death. I want you to prepare the papers and turn everything over to Sam." Thereupon the pastor sent for a notary and prepared a deed conveying the real estate to Lucas. After that had been executed the pastor, who had never before prepared a deed, suggested that possibly he had not got everything in just right, and that if the testator wanted to make sure he could make a will. The testator then asked the notary to draw up a will, and it was drawn up and executed. At the time he directed the preparation of the deed he told Lucas what he would like to have done in reference to the parsonage, and Lucas replied that he would carry out his wishes. There was not a syllable of testimony, not a hint, that Lucas, or any other person, requested or suggested any disposition of the property. All that was done was done at the instance and upon the request of the testator. The caveators called four witnesses as to his mental condition, only one of whom was present at any time during his sickness, and that the pastor above referred to. So far from their testimony tending to show mental weakness, it was abundant and emphatic that he was a man of positive convictions, clear-headed, though perhaps eccentric in some views, but at all times fully capable of making his own contracts and attending to his own affairs. The testimony of the pastor who, as stated, was present on the morning of his death and detailed the circumstances of that interview, shows that his mind was then clear, that he knew what he was doing, and was simply attempting to carry out by the deed and the will that which had been for a long time his intention. Neither his attending Opinion of the Court. physician, the notary, the executor, nor Lucas were called as witnesses, although all were present that morning. Evidently the caveators were content to rest their case in this respect upon the evidence of the pastor. Seven physicians were called who, upon a hypothetical question, substantially concurred that it was contrary to their experience and reading that a man seventy-three years of age, dying of acute pneumonia, should have testamentary capacity between three and four hours before death. The only evidence of the cause of his death was the certificate from the health department, which named as such cause broncho-pneumonia. One of these seven physicians testified (and he alone gave evidence in that respect) that the unconsciousness preceding death from acute pneumonia was not characteristic of death from bronchial pneumonia, and that the circumstances disclosed by the pastor would tend to show that there was not mental inability to make a valid deed or contract. That acute pneumonia, especially in one of his age, would ordinarily cloud the intellect for hours before death would be irrelevant to the question of his mental condition that morning, unless it was shown that he was suffering from such disease, and that does not appear. From this direct testimony but one conclusion could be drawn, and that in favor of the mental soundness of the testator at the time he made the will. Nor is the caveators' case strengthened by that which counsel so forcibly presented to our attention, to wit, the right of a jury to take into consideration that which is common knowledge and springs from the ordinary experiences and relations of life. The testator was a white man, the devisee colored, and race prejudice we all know exists. But this testator, eccentric in his views and of positive convictions, is shown to have made this colored man his business and household companion for years. Such continued intimacy, excluding other parties therefrom, is satisfactory evidence that he at least was not moved by such prejudice. The potency of blood relationship is also appealed to, but affection between cousins is often not very strong. The testator lived in this District while the caveators lived in New England, and the testimony fails to show that he visited them or they him; Opinion of the Court. that they ever even corresponded, or that the caveators ever manifested any interest in him or his until after his death, when they asserted a right to inherit his property. Upon questions of this kind submitted to a jury the burden of proof, in this District at least, is on the caveators. Dunlop v. Peter, 1 Cranch C. C. 403. See also Higgins v. Carlton, 28 Maryland, 115, 143; Tyson v. Tyson's Executors, 37 Maryland, 567. The caveators in the present case failed to sustain this burden, and we are of the opinion that the trial court did not err in directing a verdict against them. The judgment is Affirmed. SCHAEFER v. WERLING. ERROR TO THE SUPREME COURT OF THE STATE OF INDIANA. No. 151. Argued January 27, 28, 1903.-Decided February 23, 1903. The construction placed by the highest courts of the State upon a statute providing for paving streets and distributing the assessment therefor is conclusive upon this court. Where a person attacking the validity of an assessment claims that the city is estopped from proceeding to collect the benefits assessed upon lots, the owner whereof objected in writing, and which objections were placed on file by the common council, the question, so far as such estoppel is concerned, is purely state, and not Federal. Within repeated decisions of this court the statute in question in this case is not in conflict with the Constitution of the United States. THE case is stated in the opinion of the court. Mr. S. M. Sayler and Mr. W. W. Dudley for plaintiff in error. Mr. John C. Chaney for defendant in error. Mr. Alphonso Hart, Mr. William H. Hart, Mr. John G. Cline and Mr. Clifford F. Jackman were on the brief. MR. JUSTICE BREWER delivered the opinion of the court. In September, 1892, the plaintiff in error, the owner of five Opinion of the Court. lots on Williams street, in Schaefer's addition to the city of Huntington, Indiana, with other lot owners, petitioned the city council to have the street graded and graveled. On July 10, 1893, the petition was granted and the street ordered to be so improved. After this improvement had been ordered some of the lot owners petitioned the city council to order the street paved with brick. This petition was presented on August 14, 1893. A remonstrance was at the same time presented, the plaintiff in error being one of the parties thereto. Notwithstanding the remonstrance the city council ordered that the street be paved with brick, and let a contract therefor to the defendants in error. They completed the work according to the contract, and the lots abutting on Williams street were assessed for the cost thereof-the assessment being made by the front foot-and a precept to collect the amount due on the lots of the plaintiff in error issued to the city treasurer. Further proceedings were had on appeal, in accordance with the provisions of the statute, which ended in a decision of the Supreme Court, 156 Indiana, 704, affirming the validity of the assessment, on the authority of Adams v. City of Shelbyville, 154 Indiana, 467, and thereupon the case was brought here on writ of error. The case involves the validity of a statute of Indiana known as the "Barrett law," enacted in 1889. Sections 4288 to 4298, Burns Rev. Stat. 1894. We deem it sufficient to refer to the opinion in Adams v. City of Shelbyville, supra, in which the Supreme Court of Indiana closed an elaborate discussion of the various provisions of the law in these words: "We therefore conclude that section 3, acts 1889, 4290, Burns 1894, must be construed as providing a rule of prima facie assessments in street and alley improvements, which allotments by the city or town engineer, under section 6 of said act of 1889, § 4293, Burns 1894, are subject to review and alteration by the common council and board of trustees, under section 7 of said act of 1889, as amended, acts of 1891, p. 324; acts 1899, p. 64; § 4294, Burns 1894, upon the basis of actual special benefits received by the improvement and that under said section 7, the common council of a city, or board of trustees of |