Hoar, J.
We do not find any vglid objection to the admission or rejection of evidence at the trial, which would furnish a reason for setting aside the verdict.
The questions to Mrs. Parker in relation to the amount of her husband’s property, and his debts,¡did not ask for opinions, but facts; of which she had means of knowledge. Her answer was a statement of facts, not made with precision and accuracy, and undoubtedly to some extent a majtter of estimate; but still it was testimony upon facts. There was no suggestion that his property was of such a kind that she would not know its value Questions as to quantity, distance or size, where there has been [83]*83no measurement, always involve an estimate, and to that extent an opinion; but there is no legal objection to asking a witness who is acquainted with the position of two objects, how far one is from the other, or to his answering that it is about half a mile, because he has never measured the distance.
So the question as to her treatment of the children, though general in its form, and calling for an answer equally general, was unobjectionable. Either party could have inquired for the particulars more fully, if they had chosen to do so. Whether she treated the children well and kindly was a fact within her knowledge, and no more a matter of opinion than most of the common facts in human experience. It is not easy to see how the fact could have been proved otherwise, without a detailed narrative of everything she had ever said or done to them, in the whole course of their lives, in order that the jury might judge of the kindness of each act and word. This would be absurd. The substance of her testimony was only to deny, in a general form, any acts of unkindness. The part of her answer which stated that she “ had nothing else in her heart but to bring them up in the best way ” perhaps should have been excluded, if a specific objection had been made to it, because she was to testify to acts and not to thoughts and purposes. But we do not see that it materially added to the evidence which was competent, and no distinction was made in the general objection to her whole answer. ,
The exception to the ruling upon the form of question to be put to John Gleason on cross-examination does not seem to be substantial. If the purpose of the question was merely to show that Gleason was acquainted with a certain fact at a particular time, in order to explain his conduct, or to affect the inferences to be drawn from it, then it was sufficient to show that be had been informed of the fact, and was not material to inquire whether the information came from one person or another. But if the purpose was to prove something relating to the person who gave the information, it would be open to the other party to inquire just what was said. If the information was given by his wife, and in a private conversation which the statute pro« [84]*84c ibits to be used in evidence, either the fact that she gave him the specific information must be excluded on that ground; or if that objection to her testimony were waived or overruled, (which we do not intend to imply would be allowed,) the particulars of the conversation would be open to examination, as in the case of any other witness. In either view, therefore, there is no gmund of exception to the limitation upon the question impose by the court.
The other question reserved upon the report is of more difficulty and importance. It is the question, Upon whom is the burden of proof upon the issue of undue influence ? The claim on the part of the appellants is, that the party propounding the will is bound to prove that it is the will of the testator, and not of some other person operating upon and through him. On the other hand, the executors contend that when the execution of the instrument and testamentary capacity are established, nothing more is required by law to be shown affirmatively; and that, to avoid an instrument for fraud or duress, they must be proved by him who alleges them. In support of the former view it is argued that the issue upon the probate of a will is substantially a single one, to prove that the instrument was freely executed, according to the forms required by law, by a testator of sound mind; and that, whatever presumptions may exist upon any part of this issue, the burden of proof does not shift.
The question is certainly not without difficulty, and the authorities upon it are very conflicting. It is settled in this Commonwealth that on the issue of sanity or testamentary capacity the burden of proof is upon the party that offers the will for probate; and that the presumption of sanity does not shift the burden upon the opposing party. Crowninshield v. Crowninshield, 2 Gray, 524. Baxter v. Abbott, 7 Gray, 72. The burden is undoubtedly on the same side to prove the formal execution of the instrument, and that the testator executed it as and for nis last will.
The objection to a will that it was obtained by undue influ ence is not one which it is easy to define with precision. The [85]*85term seems to include both fraud and coercion. Sir John NichoII defines it to be that degree of influence which takes away from the testator his free agency; such as he is too weak to resist; such as will render the act no longer that of a capable testator. Kinleside v. Harrison, 2 Phillim. 551. Where influence has been exerted upon a person of feeble mind, or whose faculties are impaired by age or disease, it is not always easy to draw the line between the issues of sanity and of undue influence. So it is possible that in many cases the coercion might be such as to be available to set aside the will on the ground that it had not been executed by the testator.
But where the issue of undue influence is a separate and distinct issue, involving proof that the testator, though of sound mind, and intending that the instrument, which he executes with all the legal formalities, shall take effect as his will, was induced to execute it by the controlling power of another, we think the weight of authority and the best reason are in favor of imposing upon the party who alleges the undue influence the burden of proving it. And we are inclined to think that this has been the general practice in this Commonwealth. Glover v. Hayden, 4 Cush. 580.
The most recent decision in the court of appeals in the state of New York upon the question is to the same effect. Tyler v. Gardiner, 35 N. Y. 559. All the judges concurred upon this point, though they differed upon others arising in the case.
The decision in Crowninshield v. Crowninshield, and in Baxter v. Abbott, ubi supra, that the burden of proof is upon the party propounding the will to establish the sanity of the testator, although the presumption of law is in favor of sanity, is placed very much upon the construction of the statute of wills, which makes the sanity of the testator a condition precedent to his power to make a will. But when all is proved that the statute requires; when a testator of sound mind has intentionally made and published a will according to the forms of law, his will is as much a legal conveyance and disposition of his property as any other lawful instrument of conveyance. It may be impeached or made invalid by proof of fraud, duress, [86]*86or undue influence, which "have caused it to contain provis ions which he has been wrongfully induced to insert in it; but so may a deed or other contract be impeached for the like reason.
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Hoar, J.
We do not find any vglid objection to the admission or rejection of evidence at the trial, which would furnish a reason for setting aside the verdict.
The questions to Mrs. Parker in relation to the amount of her husband’s property, and his debts,¡did not ask for opinions, but facts; of which she had means of knowledge. Her answer was a statement of facts, not made with precision and accuracy, and undoubtedly to some extent a majtter of estimate; but still it was testimony upon facts. There was no suggestion that his property was of such a kind that she would not know its value Questions as to quantity, distance or size, where there has been [83]*83no measurement, always involve an estimate, and to that extent an opinion; but there is no legal objection to asking a witness who is acquainted with the position of two objects, how far one is from the other, or to his answering that it is about half a mile, because he has never measured the distance.
So the question as to her treatment of the children, though general in its form, and calling for an answer equally general, was unobjectionable. Either party could have inquired for the particulars more fully, if they had chosen to do so. Whether she treated the children well and kindly was a fact within her knowledge, and no more a matter of opinion than most of the common facts in human experience. It is not easy to see how the fact could have been proved otherwise, without a detailed narrative of everything she had ever said or done to them, in the whole course of their lives, in order that the jury might judge of the kindness of each act and word. This would be absurd. The substance of her testimony was only to deny, in a general form, any acts of unkindness. The part of her answer which stated that she “ had nothing else in her heart but to bring them up in the best way ” perhaps should have been excluded, if a specific objection had been made to it, because she was to testify to acts and not to thoughts and purposes. But we do not see that it materially added to the evidence which was competent, and no distinction was made in the general objection to her whole answer. ,
The exception to the ruling upon the form of question to be put to John Gleason on cross-examination does not seem to be substantial. If the purpose of the question was merely to show that Gleason was acquainted with a certain fact at a particular time, in order to explain his conduct, or to affect the inferences to be drawn from it, then it was sufficient to show that be had been informed of the fact, and was not material to inquire whether the information came from one person or another. But if the purpose was to prove something relating to the person who gave the information, it would be open to the other party to inquire just what was said. If the information was given by his wife, and in a private conversation which the statute pro« [84]*84c ibits to be used in evidence, either the fact that she gave him the specific information must be excluded on that ground; or if that objection to her testimony were waived or overruled, (which we do not intend to imply would be allowed,) the particulars of the conversation would be open to examination, as in the case of any other witness. In either view, therefore, there is no gmund of exception to the limitation upon the question impose by the court.
The other question reserved upon the report is of more difficulty and importance. It is the question, Upon whom is the burden of proof upon the issue of undue influence ? The claim on the part of the appellants is, that the party propounding the will is bound to prove that it is the will of the testator, and not of some other person operating upon and through him. On the other hand, the executors contend that when the execution of the instrument and testamentary capacity are established, nothing more is required by law to be shown affirmatively; and that, to avoid an instrument for fraud or duress, they must be proved by him who alleges them. In support of the former view it is argued that the issue upon the probate of a will is substantially a single one, to prove that the instrument was freely executed, according to the forms required by law, by a testator of sound mind; and that, whatever presumptions may exist upon any part of this issue, the burden of proof does not shift.
The question is certainly not without difficulty, and the authorities upon it are very conflicting. It is settled in this Commonwealth that on the issue of sanity or testamentary capacity the burden of proof is upon the party that offers the will for probate; and that the presumption of sanity does not shift the burden upon the opposing party. Crowninshield v. Crowninshield, 2 Gray, 524. Baxter v. Abbott, 7 Gray, 72. The burden is undoubtedly on the same side to prove the formal execution of the instrument, and that the testator executed it as and for nis last will.
The objection to a will that it was obtained by undue influ ence is not one which it is easy to define with precision. The [85]*85term seems to include both fraud and coercion. Sir John NichoII defines it to be that degree of influence which takes away from the testator his free agency; such as he is too weak to resist; such as will render the act no longer that of a capable testator. Kinleside v. Harrison, 2 Phillim. 551. Where influence has been exerted upon a person of feeble mind, or whose faculties are impaired by age or disease, it is not always easy to draw the line between the issues of sanity and of undue influence. So it is possible that in many cases the coercion might be such as to be available to set aside the will on the ground that it had not been executed by the testator.
But where the issue of undue influence is a separate and distinct issue, involving proof that the testator, though of sound mind, and intending that the instrument, which he executes with all the legal formalities, shall take effect as his will, was induced to execute it by the controlling power of another, we think the weight of authority and the best reason are in favor of imposing upon the party who alleges the undue influence the burden of proving it. And we are inclined to think that this has been the general practice in this Commonwealth. Glover v. Hayden, 4 Cush. 580.
The most recent decision in the court of appeals in the state of New York upon the question is to the same effect. Tyler v. Gardiner, 35 N. Y. 559. All the judges concurred upon this point, though they differed upon others arising in the case.
The decision in Crowninshield v. Crowninshield, and in Baxter v. Abbott, ubi supra, that the burden of proof is upon the party propounding the will to establish the sanity of the testator, although the presumption of law is in favor of sanity, is placed very much upon the construction of the statute of wills, which makes the sanity of the testator a condition precedent to his power to make a will. But when all is proved that the statute requires; when a testator of sound mind has intentionally made and published a will according to the forms of law, his will is as much a legal conveyance and disposition of his property as any other lawful instrument of conveyance. It may be impeached or made invalid by proof of fraud, duress, [86]*86or undue influence, which "have caused it to contain provis ions which he has been wrongfully induced to insert in it; but so may a deed or other contract be impeached for the like reason.
The defence of duress or fraud, when made in avoidance of a deed, is required to be specially pleaded, and is not good under the issue of non est factum. The reason seems to be, that the instrument is voidable, and not void ; it is the deed of the maker of it; and, if he would avoid it, he is called upon to prove the existence of facts which will authorize him to do so. Yet the issue of fraud or duress involves the question whether the deed was ever obligatory, as much as the same issue does the original validity of a will. It is true that the distinction between a voidable and void act has no precise application to a will; because a will is in its nature revocable, and may be set aside by a testator at his pleasure. But the question whether a will is his free act, the product of his own volition and not of another’s, is essentially the same as in the case of a contract; and there is no positive statute rule to make a difference in this respect.
It was said by Baron Parke in Barry v. Butlin, 1 Curteis, 638, and the observation was quoted with approbation by Mr. Justice Thomas in Crouninshield v. Crouninshield, “ that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.” This statement, though apparently supporting the doctrine that the burden of proof on the issue of undue influence is on the party propounding the will, we do not feel sure was so intended.
The case was tried upon an allegation by the executors propounding the will, and upon allegations of the heir setting up that it was obtained by undue influence. The question discussed by Baron Parke upon the burden of proof was upon the point, whether, if it appeared that the will was prepared by a person who took a benefit under it, it made a presumption and onus probandi against the will, and required proof that the contents of the will were known to the testator.
[87]*87He says: “ If it is intended to be stated, as a rule of law, that in every case in which the party preparing the will derives a benefit under it, the onus probandi is shifted, and that not only a certain measure, but a particular species of proof is therefore required from the party propounding the will, we feel bound to say that we conceive the doctrine to be incorrect. The strict meaning of the term onus probandi is this, that if no evidence is given by the party on whom the burden is cast the issue must be found against him.” “ In all cases this onus is imposed on the party propounding a will; it is in general discharged by proof of capacity and fact of execution ; from which the knowledge of and assent to the contents of the instrument are assumed, and it cannot be that the simple fact of the party who prepared the will being himself a legatee is in every case and under all circumstances to create a contrary presumption, and to call on the court to pronounce against the will unless additional evidence is produced to prove the knowledge of its contents by the deceased.”
He concludes that it amounts only to a circumstance of suspicion, calling for care in the court, and calling on it not to grant probate without entire satisfaction that the instrument does express the real intentions of the deceased.
The whole result of the reasoning would seem to be, that upon the separate issue of undue influence the burden of proof is upon the party alleging it; and that it does not shift upon the party having the general burden of establishing the will, upon the mere introduction of evidence of a single circumstance of suspicion. If no evidence were offered on either side, the allegation of undue influence would- fail. In the language of Chief Justice Mellen, “ the law requires proof of facts; espe - cially when the object is to destroy and set aside an act apparently deliberate, and executed with all usual and legal formal-ties.” Small v. Small, 4 Greenl. 224. The view which we have taken of the English doctrine on the subject is confirmed by a recent decision in the house of lords, Boyse v. Rossborough, 6 H. L. Cas. 2. In that case, p. 49, Lord Cranworth says: “ One point, however, is beyond dispute, and that is, that where [88]*88once it has been proved that a will has been executed with due solemnities by a person of competent understanding, and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it. Undue influence cannot be presumed.”
The rule which was adopted at the trial seems therefore to us to be correct in principle, and supported by authority., as well as obviously the most convenient in practice; and none of the objections to the probate of the will can be supported
Judgment on the verdict