Sargent, J.
In Judge of Probate v. Stone, 44 N. H. 593, it was held that the party on whom the burden of proof in the first instance devolved was entitled to open and close ; that to determine which party is to begin, and of course which shall close, is to consider which would get the verdict, if no evidence were given on either side, and the right to begin is with the one who in that way would lose his case; and that a verdict will be set aside when the court at the trial has given the close to a party not entitled to it.
In this case the issues sent from the law term were joined upon averments of plaintiff: 1st, that the testatrix was not of sane mind at the time of making said will, &c.; and 2d, that she was induced to make the will, &c., by undue influence. As these issues are made up the burden of proof would seem to be on the appellant, and not on the executrix, and hence that the ruling of the court was wrong, in giving the close to the executor.
But it is said in Judge of Probate v. Stone, p. 605, "in appeals from the probate court for proving a will, it matters not which party is the appellant. The party who affirms that a will was made, has the primary burden of proof and the accompanying right to close.” Now the case states that this is a case of appeal from the decree of the judge [132]*132of probate allowing tbe will and codicil of Margaret Blydenburgh, and whatever form the issues which are sent to the trial term, may assume in such cases, the nature of the proceeding is never lost sight of, nor is the final object to be attained to be kept from view. . The proceeding being such as is stated in the case, it is to be tried in this the Supreme Court of Probate according to the principles adopted and the rules applied for the trial of the same questions in the probate court. And the question to be determined, no matter in what form the issues may be drawn, is the due and legal execution of the will.
In Perkins v. Perkins, 39 N. H. 163, 167, which was a case like this, both in its nature, form and objects, and where the form of the issues was also the same as here, Bell, C. J., in delivering the opinion says : "The object of the proceeding is to prove the due execution of a written instrument. In most cases such proof is offered in order to the admission of the instrument in evidence. But in the case of the proof of a will the evidence is offered to lay the foundation of a decree that the will has been proved, which may supersede the necessity of proving it again. The substance of the proof is the same in both cases. The instrument itself must be produced unless in a few excepted cases where secondary evidence is admitted; and the attesting witnesses must be produced and examined, if they are living and within reach of the process of the court. They are to be produced by the party who offers the instrument, or who seeks a decree that it has been proved. * * * * The usual formal proof being offered, the law comes in with its presumption that the party is sane, and this presumption stands until evidence is offered tending to raise a different belief. * *' * Evidence being introduced, the issue is to be determined by the preponderance of the whole evidence as in other cases, though the party offering the proof of execution continues to have the legal presumption of sanity and capacity in his favor till the end.
Though ordinarily no question need be asked of the witness who testifies to the execution of an instrument, relative to the capacity of the grantor, yet, owing to the nature of the proceedings in the case of wills, that the probate of the will is the foundation of the grant of power to the executor, to take possession of the estate and the charge of administration, it is, in that case, the long settled practice of courts of probate to require that the witnesses to wills should be examined as to the fact of the sanity of the testator before the will is established. * * This practice is equally binding as the law in such cases, upon the >Supreme Gourt, as on the ordinary courts of probate.”
In thus stating the long established practice in this State in cases of this kind, the reason will be seen why it has been the equally well established custom for the executor or administrator to open and close. It being understood that the object of the proceeding is to prove the due execution of the will without regard to the particular form of the issues, the executor must first produce the will to be proved, and call the subscribing witnesses if alive and within the jurisdiction. The affirmative is in fact on him, and he has uniformly been allowed the close.
If this class of cases, on account of the peculiar form in which [133]*133the issues are made up, must be considered as an exception to the general rule laid down in Judge of Probate v. Stone, they are there mentioned and recognized as an exception which has become established by a long and uniform practice in this State, which sustains the ruling of the court in this case on that point. But if the true nature of the trial is to be regarded, if the question which is in fact to be settled is considered, if the substance of the issue instead of the form is to be noticed, then the rule as laid down in Judge of Probate v. Stone is correct in its application to these cases as well as others. The ruling of the court must be sustained.
The second point in the case includes the second, third and fourth exceptions which all relate to the admissibility of the opinions of witnesses, not experts, upon the question of the sanity of the testator, said witnesses not having attested the will. The ruling in this case is understood to be in accordance with the long established and uniform usage in this State, ever since the decision in Hamblett v. Hamblett, 6 N. H. 333. There, the directions of the judge at the trial to the jury were "not to rely upon any evidence of opinion as to the sanity or insanity of the testator, except what was derived from the subscribing witnesses to the will.” There were no experts offered. In the opinion that point is expressly left undecided, but it is believed that the ruling there made at the trial, has been since followed, and that the opinions of such witnesses have been uniformly excluded. We are well aware that in many States the decisions are the other way, but there is by no means a uniformity upon this question.
There is not only much conflict in the decisions of different States and countries upon that point, but the grounds upon which such opinions have been admitted are to my mind entirely unsatisfactory. In many of the leading cases in which such opinions have been held admissible, it has been upon the ground of necessity. It is said that in questions of sanity, witnesses- are generally unable from the nature of the case, to state the facts upon which their opinions are founded, and therefore that such opinion should be received in evidence, yet they almost invariably hold that before these opinions can be given the witnesses must state the facts upon which the opinion is founded, thus in effect compelling the witnesses to do the very thing which it has just been assured they cannot do, and imposing on them the very difficulty, the necessity of obviating which, was made a ground, and the principal ground, of establishing this exception to the general rule of evidence. Many of these authorities also hold that juries must be instructed to give these opinions little or no weight, unless appearing to be supported by the facts and circumstances which it has just been asserted that the witness cannot state intelligibly.
"A rule so fraught with contradictions” and which practically nullifies the reason of its adoption, can hardly command or receive the assent of the reason as a sound principle of law, even though a numerical majority of the decisions reported, and based upon such grounds and such reasoning, might be found to favor it. We believe in practice no difficulty is found in the witness describing the acts, the sayings, and [134]*134appearance of the testator, so that the jury can judge as to what opinion ought reasonably to be formed from them quite as well and as fairly without the opinion of the witness upon the question of sanity.
Redfield in his treatise on Wills, page 144, after noticing the decisions of the several States where the opinions of witnesses, who were neither subscribing witnesses to the will, nor experts, have been allowed on the question of sanity, says : "This presents a considerable array of authority, sufficient, we think, to allow any court to decide the question in that direction, unless it regards the true principle applicable to the case as lying in the opposite direction.” We think that the true principle lies in the opposite direction.
The general rule that opinions of witnesses are not evidence is well established and everywhere admitted. The rule that experts may give opinions on matters of science and skill stands upon distinct and independent grounds, and that rule is well established and everywhere admitted.
The exception that subscribing witnesses to a will, though not experts, pray give their opinions in regard to the sanity of the testator, is placed by many upon the ground that the testator has selected and chosen these witnesses as being those best qualified to state in regard to all points necessary to be proved, in order to establish the will. But we are inclined to give little weight to tins consideration since all who are familiar with the practice in such cases knew that ordinarily- the testator has nothing to do with selecting the witnesses to his testament. The scrivener usually calls on those who are nearest at hand, and who can most conveniently be had to attest the execution of the instrument he has drawn. The latter reason we think, as stated in Redfield on Wills, p. 140, is to be found in the fact that the statute only requires credible or competent witnesses, and that it is not competent for courts to require in such a case more than the statute, or to say that when the statute defines the requisites of a witness, he is not to be regarded as competent to testify to every point directly involved in the issue, whether the paper presented for probate be the will of the alleged testator or not. We see no reason for carrying this exception any farther than the statute has thus carried it, in the case of sanity any more than on any other question.
In some States they allow the opinions of witnesses to be given on almost every subject. Perhaps it is not strange that there they should include insanity. But the tendency in this State has been to adhere to the well established rule, and to exclude the opinions of witnesses not experts. Lowe v. Railroad, 45 N. H. and cases cited.
We agree in opinion with the court in Massachusetts, as expressed in Commonwealth v. Fairbanks, 2 Allen 511, where it is said that in general where the jury have the facts in detail, they are as competent to form a correct judgment as the witness, and the practical experience of those familiar with courts shows that the defence of insanity is one easy to be made, and favorably listened to by juries. The rule, therefore, should not be extended beyond the adjudicated cases. The practice in this State we regard as well settled and uniform, both in civil and criminal cases, with the exception above referred to of the subscribing witnesses to wills, that [135]*135•witnesses, not experts, may state the acts and sayings of the person whose sanity is questioned, and may describe Iris appearance, but may not give his present opinion as to his sanity or insanity, nor state the impression made’ upon witness’ mind at the time of the acts, sayings or appearances testified to, in regard to the sanity or insanity of such person at such times. In either case it is but the witness’ opinion based upon certain facts. Those facts he may state, but it is the opinion of the jury that is wanted on these facts, and not the opinion of the witness, unless he be an expert and so qualified to give an opinion that may aid the jury. We see no occasion to change the practice as thus established, but think that it accords with sound reason. The ruling of the court in excluding the opinions of these witnesses was correct.
What Green’s own opinion was upon the subject of his qualifications as an expert was entirely immaterial. That question was for the court alone. The witness might state his acquaintance with the subject, what he had done to qualify himself, &., but whether he had the qualifications of an expert, was a question of fact for the court to settle, and when the court had ruled that he was competent, the opinion of the witness on his own competency was in law entirely immaterial. Jones v. Tucker, 41 N. H. 546.
The declarations of the deceased subscribing witness were properly rejected. This question arose and was fully considered in Stobart v. Dryden, 1 Mees. & W. 615, and the evidence was rejected. Also in Flanders v. Davis, 19 N. H. 139, it was held that where the attesting witnesses to a deed were dead there was no presumption that if living they would testify that the grantor was of sane mind at the time of the execution and delivery of the deed. The same question was settled in the same way in Baxter v. Abbott, 7 Gray 71; 1 Greenl. Ev. sec. 126.
There is no presumption that a witness to a will will state one way or the other in regard to the sanity of the testator. There is no legal presumption because the name of a person appears on a will as attesting witness, that the person actually attested it. That fact must be proved by evidence of hand-writing or the production of the witness, or in some other way. Where the witness has deceased or is beyond the jurisdiction, there is no presumption as to what he would say if living and present. All the presumption there is in such case is that the testator was sane, until some evidence is produced from some sotuce to prove the contrary.
The opinion of Dr. Green as to the sanity of the testatrix was properly admitted. The court had found the fact that he was competent as an expert. That made him competent to express an opinion upon the testator’s sanity, founded either upon his personal examination of, and acquaintance with the deceased, (Red. on Wills 154; 1 Leading Criminal Cases, 105,3 or according to our practice, upon a hypothetical case stated to the witness, and so proved as to resemble as near as may be the case under consideration. The jury can judge whether the case supposed is so far like the one they are considering as that the opinion of the expert on the supposed case is any guide to them in settling the question which they are to decide.
[136]*136We think the ruling was also right in excluding the question as to Smith’s character and standing in society, either at the time of the trial or of the transaction referred to in the evidence. Although in criminal charges the rule is deficient, yet in civil suits it has long been held that evidence of character is not admissible to rebut imputations of fraud or misconduct. Matthews v. Huntley, 9 N. H. 146, and cases cited; Heywood v. Reed, 4 Gray 574; Atwood v. Dearborn, 1 Allen 483, and other cases cited in appellee’s brief. The only object of all this evidence about the sale of the lot of land, and Margaret’s statement in regard to it, was to show that said Margaret was at the time of the sale, or at the time of the statements made, either sane or insane. The jury must settle the question of sanity at the time of sale, as they should find her acts in the sale to be most consistent with the one condition of mind or the other, taken in connection with all the facts and circumstances then existing, and known to her, and at the time of the statements made, according as they should find that the facts connected with the sale, as known or supposed to be known by her at the time of the statements made, did or did not justify such statements. Smith’s general reputation and standing at any time could have nothing to do with the question of Margaret’s sanity.
The ruling "that mere moral insanity, insanity of the moral nature, that is, disorder of the moral affections and propensities, will not, unless accompanied by insane delusion, be sufficient to invalidate a will or to incapacitate a person to make one,” was also, we think, correct.
In Frere v. Peacocke, 1 Robertson’s Eccl. R. 442, it was expressly held, Sir Herbert Jenner Fust delivering the opinion, that moral insanity, or the perversion of the moral feelings not accompanied with insane delusion, which is the legal test of insanity, was not sufficient to invalidate a will.
Dew v. Clark, 1 Adams 179, was a case of insane delusion on the part of the testator in regard to the character of his only daughter, whom he imagined to be vile, profligate, and depraved in the highest degree, and accordingly he treated her with the utmost severity and even cruelty, and finally cut her off in his will with an inadequate provision. But it was a dislike founded merely on delusion, for it was satisfactorily proved that while this delusion had gained such possession of his mind that nothing could shake Ms belief, yet in point of fact the daughter was amiable in disposition, engaging in her manners, of superior natural talents, diligent, dutiful, affectionate, modest and virtuous, and giving no occasion for the extraordinary feelings manifested by the father. The will being proved to be the direct result and offspring of this delusion, was set aside, Sir John Nicholl delivering the opinion, who held that "no course of harsh treatment, no sudden bursts of violence, no display of unkind or even unnatural feeling merely, could avail the daughter in proof to set aside this will, but that she must make out a case of antipathy clearly resolvable mto mental perversion, and plainly evmcing that the deceased was insane as to her, notwithstanding Ms general samty.” In the opinion he says :
"The true test of the absence or presence of insanity I take to be the [137]*137absence or presence of what, used in a certain sense of it, is comprisable in a single term, delusion. Whenever the patient once conceives something extravagant to exist, which has still no existence whatever but in his own heated imagination, and whenever at the same time having once so conceived, he is incapable of being, or at least of being permanently, reasoned out of that conception, such a patient is said to be under a delusion, in a peculiar, half-technical sense of the term, and the absence or presence of delusion so understood,'forms in my judgment the only true test or criterion of absent or present insanity. In short, I look upon delusion, in this sense of it, and insanity to be almost if not altogether convertible terms.”
He quotes Dr. Battie’s opinion, that "deluded imagination is not only an indisputable but an essential character of madness.” Also the opinion of Dr. Francis Willis, who says a sound mind is one wholly free from delusion. Weak minds differ from strong ones in the extent and power of them faculties, hut unless they betray symptoms of delusion, their soundness cannot be questioned. An unsound mind, on the contrary, is marked by delusion, &c.
The case of White v. Wilson, 13 Vesey 88, was very similar — a case of disordered affections — but one proved to be founded on an insane delusion. Taylor’s Med. Juris. (6th Ed.) 656, says a will may be manifestly unjust to the surviving relatives of a testator, and it may display some of the extraordinary opinions of the individual, yet it will not necessarily be void unless the testamentary dispositions clearly indicate that they have been formed under a delusion. Some injustice may possibly be done by the rigorous adoption of this principle, since delusion may certainly enter into a man’s act, whether civil or criminal, without one being always able to discover it, but after all it is perhaps the most equitable way of construing the last wishes of the dead.
Some medical writers claim that delusion is not the test, and that moral insanity alone — disorder of the moral affections — where the will is to any extent the offspring of such perverted state of the affections, should invalidate the will. Taylor’s Med. Juris. 556 ; Bay. Med. Juris, sec. 22. But the English courts, as we have seen, have manifested a reluctance to yield in any sense to the recognition of any such morbid affection as moral insanity. Bed. on Wills p. 82. The same author says on page 72, that the consideration of this form of insanity (that is, moral mania,) is important chiefly in the administration of criminal jurisprudence. It is not often that it can be called in question in the testamentary act. Yet the American courts have had this subject before them in many different forms. Lucas v. Parsons, 24 Geo. 640; Florey v. Florey, 24 Ala. 241; Jenckes v. Smithfield, 2 R. I. 255, were cases where there was disorder or perversion of the affections, but in all of them this perversion of the affections was traced to an insane delusion, which had affected the mind.
In Stanton v. Wetherwax, 16 Barber 259, it is held that when a person conceives something extravagant to exist which has no existence whatever, save in his own heated imagination, but he is incapable of being reasoned out of that conception, such person may be said to be un[138]*138der a delusion, and the absence or presence of delusion, so understood, .forms the true test or criterion of absent or present insanity. Delusion in tins sense of the word and insanity are convertible terms, adopting the view of Sir John Nicholl in Dew v. Clark.
In Den d. Trumbull v. Gibbons, 2 Zabriskie (N. J.) 117, thehead note is as follows : "A will cannot be set aside on account of any moral obliquity, or prejudice of the testator, .exhibited in the devises in it, or because the disposition of property in it is unnatural or unjust.” "Strong, violent and unjust prejudices., if not founded on delusion, do not show mental incapacity.”
In that case one Thomas Gibbons had by will given most of his property to his son, William Gibbons, but had disinherited his .daughter Ann, and her husband John M. Trumbull, and their four children, who, after the decease of their mother, had leased to the plaintiff, who had by suit sought to recover possession of a farm given to said William Gibbons in his father’s will. Carpenter, J., in delivering the opinion says : "But it has been urged with great earnestness on the side of the lessors of the plaintiff, that there was hallucination of mind on the part of the testator towards Trumbull and his family, a causeless and unwarrantable dislike, amounting to monomania, and that this state of feeling was caused, or at any rate participated in, by the son who thus obtained the disposition in his father’s will. * * * While it is admitted that he (the father) was a man of more than ordinary vigor of intellect, yet it is said that he labored under a morbid state of mind of the character already mentioned, and that the will was the offspring of such feelings. Where delusion exists in' the mind of a person on one or more subjects only, it is termed partial insanity. I do not question but that partial insanity will invalidate a will which appears to have been the .direct result of .such insanity, though the testator at the time of making it may have been sane in other respects upon ordinary topics.” He adverts to the case of Dew v. Clark, before cited, and says, "that case turned on the fact of a remarkable delusion, the only clear test of insanity, unquestionably proved and it has since required the unqualified approbation of the profession.”
The jury had been instructed at the trial "that they were to inquire not whether the will was a fair will, a just will, an equitable will, the will of ■ a right-thinking man and a kind-hearted father, but is it Thomas Gibbons’ will ?” It was held that these instructions were right, and that it was proper that .the jury should not be permitted to nrr from feelings which possibly may have been excited by the harshness of the will, when the evidence was clear and the case free from doubt. And it was held, that, as there did not appear to be any delusion in the mind of the testator in regard to his daughter or her husband, but the feelings of anger manifested on his part towards them were caused by a lawsuit which they had instituted against him, and other family quarrels between them, the will, though it might seem harsh or .even unjust, ought to stand.
In Dennett v. Dennett, 44 N. H. 531, it is held that all that the law requires to make a deed effectual, is that a man should have possession of his reason so as to understand the effect of the act he is about to perform, where there is no-delusion. In 2 Greenl. Ev. 371, a, it is said, [139]*139in regard to insanity where there is no frenzy or raving madness, the legal and true character of the disease is delusion, or as the physicians express it, illusion or hallucination, and this insane delusion consists in a belief of facts which no rational person would believe. It is distinguished from moral insanity which consists in the perversion or disordered state of the affections, or moral powers of the mind, in contradistinction to the powers of the understanding or intellect. This latter state of the mind is held not sufficient to invalidate a will unless it is accompanied by that delusion in matters of fact, which is the test of legal insanity.
Some writers recently, in treating of the subject of mania or active insanity, draw a distinction between the medical and the legal definition of the term; the medical including moral insanity or the perversion of the affections, while the legal excludes it and knows no criterion of the existence of insanity but delusion; 3 Am. Law Reg. N. S. 1; and on page 6, it is said there is a difference, it will be observed, between the legal and medical theory of active insanity. Delusion is essential to the legal idea of mania, but physicians do not attach the same irnportance to this feature of the disease.
It is difficult to conceive how insanity could be judicially established unless delusion of some sort were proved. But delusion offers a practical test of active insanity, and it is difficult to see how in a will case it would be practicable to administer the law or do justice according to law if moral insanity were held sufficient to avoid a will. See, also, 1 Jar-man on Wills 56, and note; 3 Am. Law Reg. (N. S.) 385, 399.
Delusion, in the technical sense as explained by Sir John Nicholl and others, is, then, the legal test of the presence of active insanity, and if the will is the offspring of tins delusion, it shordd be set aside, but if there is no such delusion, then there is no fact which is tangible as a matter of proof in a court of justice, upon which it would be safe or wise to act, and thus disturb those numerous testamentary dispositions of property which are made by those whose moral sense may be none of the keenest, or whose affections may not run in the same channel with those of their neighbors.
We all have likes and dislikes among our acquaintances and even among our relatives, and, it may be, among the members of our own families, for which we might not be able to give an intelligible reason, or one that would be satisfactory to another person, who did not see with our eyes and hear with our ears, and the operation of whose mind might not be like ours in every essential particular, and yet are we all insane because we dislike somebody that some one else likes, and because we malee a will according to these peculiarities of our views, must it be set aside? Better make a law that all a man’s propei*ty shordd be divided equally among his relatives, without regard to the peculiar views or preferences of the deceased owner, and prohibit the making of wills altogether. But so long as tire law allows a man to do what he will with his own, he may exercise his individual privilege of having preferences and prejudices as between friends and relatives and even children, without his being called on to give any reason further.
[140]*140These authorities and remarks, of course, apply to active mania or insanity only, and not to what is termed passive insanity, including idiotcy and imbecility.
The other instruction, that, if the testatrix was under delusion, "but the will and its provisions were not in any way the offspring or result of the delusion, and were not connected with or influenced by it, then she was of sane mind to make the will, was, we have no doubt, correct. It was in accordance with the great weight of authority, ancient and modern, English and American, medical and legal. Many of the cases already referred to go directly to sustain it, and many more might be adduced besides those cited in the brief of the appellee, but they are unnecessary. The only opposing decision, would seem to be Warring v. Warring, 6 Moore P. C. 349, but this has never been recognized as authority either in England or this country. Red. on Wills 80, 86; 3 Am. Law Reg. 1, et seq. We think the rulings and instructions at the trial were correct, and that there must be
Judgment on the verdict.