STONE, C. J.
The questions presented by this record arose on the application to probate and establish a paper as the last will and testament of Mrs. Frances Ross, late the wife of D. A. G. Ross, the proponent. Mrs. Ross died without descendants. The probate was contested by some of the next of kin, who would share in the distribution if there was an intestacy. The grounds relied on to set aside the will, as we learn from the record, were: first, that decedent had not at the time of its execution sufficient mind and memory to make a will; and, second, that it was procured to be executed through undue influence exercised by the husband, D. A. G. Ross, who is a beneficiary under it. Fraud in procuring the execution of the will was also assigned as a reason why it should not be admitted to probate, but the record contains no testimony raising that question. The verdict and judgment sustained the validity of the will, and the contestants appeal. We will first consider the question of undue influence.
The undue, influence which will overturn or defeat a testamentary disposition of property must be of such a character [271]*271as to overpower the will of the testator, and substitute another’s will in its place. It must amount to controlling, mental restraint and coercion, destroying the free agency of the testator. In fact, to constitute such undue influence, the will and wish of the testator must be subordinated and displaced by the superior, dominating will of another. Affection, or a desire to gratify another’s wishes, is not that sort of coercion which defeats attempted testamentary disposition. All the better instincts and emotions are left in full play,-and are harmless, unless the will itself — the power of independent action — is overcome. It ceases to be, the will of the ostensible testator, only when it is shown to have been brought about by another’s superior will.—Bancroft v. Otis, 91 Ala. 279; Moore v. Spier, 80 Ala. 125; Leeper v. Taylor, 47 Ala. 221; Taylor v. Kelly, 31 Ala. 59. And the fact that the testator is the wife of the legatee does not, per se, raise the presumption of fraud or undue influence, so as to shift the burden of proof on the beneficiary.—Bancroft v. Otis, supra,; Eastis v. Montgomery, 93 Ala. 293; Lyons v. Campbell, 88 Ala. 462; Johnston v. Armstrong, 97 Ala. 731.
Testamentary capacity does not necessarily imply a mind wholly unimpaired. If the testator recollects the property he or she is about to bequeath, the persons to whom there is a wish to bequeath it, the manner in which he or she desires to dispose of it, and understands the business engaged in, this is testamentary capacity. If these mental qualities are found to have existed when the will was executed, then great age, bodily infirmity, or impaired mind, one or all, will not vitiate the will. The disposing mind and memory, which the law declares are the tests of testamentary capacity, are all embodied and expressed in the one power to collect and retain the elements of the business to be performed, for a sufficient length of time to perceive and comprehend their relation to each other.—O’Donnell v. Rodiger, 76 Ala. 222; Leeper v. Taylor, supra; Bates v. Bates, 27 Iowa, 110.
We have now stated the two controlling inquiries which were submitted to the jury for their solution. We have also declared the legal standard by which testamentary capacity, and vitiating, undue influence must be measured. On each of these issues, after proponent proved the execution of the will, the burden of proof was on the contestants. Any testimony which proximately shed light on either of these inquiries was competent.
There was very little, if any proof, positive or circumstantial, of any influence exercised by the proponent in procuring the execution of the will. The argument in support [272]*272of the contention that Mrs. Ross was unduly and improperly influenced to sign the will in the form in which it was presented, was drawn entirely from circumstances, none of which, of themselves, tended to convict Mr. Ross of positive, or intentional interference or wrong. There was testimony tending to show that, at one time, testatrix had intended to make other disposition of her property, or the bulk of it, and that one of the contestants would have been largely benefited, if that alleged original purpose had been carried out. The testimony went farther, and tended to show that Mrs. Ross had promised her first husband, Mr. ITolley, through whose will she acquired her property, or a part of it, that she would bequeath it to the said contestant, who had been raised by her from her little girlhood. The facts that the said contestant had been raised and cared for by Mrs. Ross, that she had been much attached to her, and the testimony that at one time testratrix intended to provide for her by her will, were, no doubt, relied on as circumstances tending to show that this change of mind was brought about by undue influence. The effect of this presentation .of the question was to legalize and let in testimony which might not under other circumstances be legal. It certainly authorized proof that testatrix had changed her mind and testamentary purpose long before Mr. Ross married her, or, as the testimony shows, could have had any interest in the frame of her will. Such testimony was properly received, to be weighed by the jury in determining whether undue influence on the part of Ross brought about the change. Under this principle, it was competent to put in evidence the letter of Mrs. Ross, then Mrs. Rowe, bearing date March 30, 1879. For the same reason, it was competent to prove that, while testatrix was the wife of Mr. Rowe, she had executed a will in which she made provision for her then husband, similar to that made for Ross, complained of in this suit.
Another principle. Letters written by the testatrix were produced in evidence, against the objection and exception of contestants. These letters bore date after the time it was alleged her mind had been impaired by paralysis, and extended to a time after the will bore date. These were legal testimony, to be weighed by the jury in determining the inquiry whether she possessed the requisite testamentary capacity.—Reynolds v. Adams, 90 Ill. 134, 146, at séq.; Bates v. Bates, 27 Iowa, 110.
The Probate Court did not err in receiving the testimony of Dr. Hitt, and the testimony of the intimate acquaintances of Mrs. Ross, non-professionals, that in their several opin-[273]*273ions sbe was of sound mind. All this testimony was brought witliin tbe rule established in this State.—In re Carmichael, 36 Ala. 514, citing the earlier rulings; Ford v. State, 71 Ala. 385; O’Donnell v. Rodiger, 76 Ala. 222; 7 Amer. & Eng. Encyc. of Law, 504-5; Tullis v. Kidd, 12 Ala. 648; Mobile Life Ins. Co. v. Walker, 58 Ala. 290.
Mrs. B., one of the contestants, was examined as a witness, and one object of her testimony was to prove that at one time Mrs. Boss, the testatrix, had intended to bequeath her property to her, the witness, and that she had not carried out that intention in the paper offered for probate as her will. This testimony was offered as tending to establish the charge that the will was procured to be signed by undue influence. This witness, it will be remembered, had grown up in the house of the testratrix, as one of her family. She testified, “that she heard testatrix tell witness’ father for him to leave Mrs.
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STONE, C. J.
The questions presented by this record arose on the application to probate and establish a paper as the last will and testament of Mrs. Frances Ross, late the wife of D. A. G. Ross, the proponent. Mrs. Ross died without descendants. The probate was contested by some of the next of kin, who would share in the distribution if there was an intestacy. The grounds relied on to set aside the will, as we learn from the record, were: first, that decedent had not at the time of its execution sufficient mind and memory to make a will; and, second, that it was procured to be executed through undue influence exercised by the husband, D. A. G. Ross, who is a beneficiary under it. Fraud in procuring the execution of the will was also assigned as a reason why it should not be admitted to probate, but the record contains no testimony raising that question. The verdict and judgment sustained the validity of the will, and the contestants appeal. We will first consider the question of undue influence.
The undue, influence which will overturn or defeat a testamentary disposition of property must be of such a character [271]*271as to overpower the will of the testator, and substitute another’s will in its place. It must amount to controlling, mental restraint and coercion, destroying the free agency of the testator. In fact, to constitute such undue influence, the will and wish of the testator must be subordinated and displaced by the superior, dominating will of another. Affection, or a desire to gratify another’s wishes, is not that sort of coercion which defeats attempted testamentary disposition. All the better instincts and emotions are left in full play,-and are harmless, unless the will itself — the power of independent action — is overcome. It ceases to be, the will of the ostensible testator, only when it is shown to have been brought about by another’s superior will.—Bancroft v. Otis, 91 Ala. 279; Moore v. Spier, 80 Ala. 125; Leeper v. Taylor, 47 Ala. 221; Taylor v. Kelly, 31 Ala. 59. And the fact that the testator is the wife of the legatee does not, per se, raise the presumption of fraud or undue influence, so as to shift the burden of proof on the beneficiary.—Bancroft v. Otis, supra,; Eastis v. Montgomery, 93 Ala. 293; Lyons v. Campbell, 88 Ala. 462; Johnston v. Armstrong, 97 Ala. 731.
Testamentary capacity does not necessarily imply a mind wholly unimpaired. If the testator recollects the property he or she is about to bequeath, the persons to whom there is a wish to bequeath it, the manner in which he or she desires to dispose of it, and understands the business engaged in, this is testamentary capacity. If these mental qualities are found to have existed when the will was executed, then great age, bodily infirmity, or impaired mind, one or all, will not vitiate the will. The disposing mind and memory, which the law declares are the tests of testamentary capacity, are all embodied and expressed in the one power to collect and retain the elements of the business to be performed, for a sufficient length of time to perceive and comprehend their relation to each other.—O’Donnell v. Rodiger, 76 Ala. 222; Leeper v. Taylor, supra; Bates v. Bates, 27 Iowa, 110.
We have now stated the two controlling inquiries which were submitted to the jury for their solution. We have also declared the legal standard by which testamentary capacity, and vitiating, undue influence must be measured. On each of these issues, after proponent proved the execution of the will, the burden of proof was on the contestants. Any testimony which proximately shed light on either of these inquiries was competent.
There was very little, if any proof, positive or circumstantial, of any influence exercised by the proponent in procuring the execution of the will. The argument in support [272]*272of the contention that Mrs. Ross was unduly and improperly influenced to sign the will in the form in which it was presented, was drawn entirely from circumstances, none of which, of themselves, tended to convict Mr. Ross of positive, or intentional interference or wrong. There was testimony tending to show that, at one time, testatrix had intended to make other disposition of her property, or the bulk of it, and that one of the contestants would have been largely benefited, if that alleged original purpose had been carried out. The testimony went farther, and tended to show that Mrs. Ross had promised her first husband, Mr. ITolley, through whose will she acquired her property, or a part of it, that she would bequeath it to the said contestant, who had been raised by her from her little girlhood. The facts that the said contestant had been raised and cared for by Mrs. Ross, that she had been much attached to her, and the testimony that at one time testratrix intended to provide for her by her will, were, no doubt, relied on as circumstances tending to show that this change of mind was brought about by undue influence. The effect of this presentation .of the question was to legalize and let in testimony which might not under other circumstances be legal. It certainly authorized proof that testatrix had changed her mind and testamentary purpose long before Mr. Ross married her, or, as the testimony shows, could have had any interest in the frame of her will. Such testimony was properly received, to be weighed by the jury in determining whether undue influence on the part of Ross brought about the change. Under this principle, it was competent to put in evidence the letter of Mrs. Ross, then Mrs. Rowe, bearing date March 30, 1879. For the same reason, it was competent to prove that, while testatrix was the wife of Mr. Rowe, she had executed a will in which she made provision for her then husband, similar to that made for Ross, complained of in this suit.
Another principle. Letters written by the testatrix were produced in evidence, against the objection and exception of contestants. These letters bore date after the time it was alleged her mind had been impaired by paralysis, and extended to a time after the will bore date. These were legal testimony, to be weighed by the jury in determining the inquiry whether she possessed the requisite testamentary capacity.—Reynolds v. Adams, 90 Ill. 134, 146, at séq.; Bates v. Bates, 27 Iowa, 110.
The Probate Court did not err in receiving the testimony of Dr. Hitt, and the testimony of the intimate acquaintances of Mrs. Ross, non-professionals, that in their several opin-[273]*273ions sbe was of sound mind. All this testimony was brought witliin tbe rule established in this State.—In re Carmichael, 36 Ala. 514, citing the earlier rulings; Ford v. State, 71 Ala. 385; O’Donnell v. Rodiger, 76 Ala. 222; 7 Amer. & Eng. Encyc. of Law, 504-5; Tullis v. Kidd, 12 Ala. 648; Mobile Life Ins. Co. v. Walker, 58 Ala. 290.
Mrs. B., one of the contestants, was examined as a witness, and one object of her testimony was to prove that at one time Mrs. Boss, the testatrix, had intended to bequeath her property to her, the witness, and that she had not carried out that intention in the paper offered for probate as her will. This testimony was offered as tending to establish the charge that the will was procured to be signed by undue influence. This witness, it will be remembered, had grown up in the house of the testratrix, as one of her family. She testified, “that she heard testatrix tell witness’ father for him to leave Mrs. B (witness) out of any distribution under his will, that she intended witness should have what property she and her husband had. These contestants offered to prove by same witness that she was not a legatee under her father’s will. Proponent objected to this, because witness was not competent to prove the same — -that the will was the best evidence. The court sustained this objection, and contestants reserved their exception.” We hold that the Probate Court erred in this ruling. The question was not one directly raised by the issue in the cause, but came up incidentally. In such case, the rule requiring the highest and best evidence the nature of the question admits of does not apply.—Graham v. Lockhart, 8 Ala, 9; Snodgrass v. Br. Bank, 25 Ala. 161; Street v. Nelson, 67 Ala. 504; East v. Pace, 57 Ala. 521; Winslow v. State, 76 Ala. 42. This testimony ought to have been received, for it was at least competent on the inquiry whether the instrument expressed the will and wish of the testatrix, or was the mere expression of another’s dominating will. It was for the jury to determine its weight and effect.
If it be conceded to be true, as claimed, that testatrix promised her first husband, Mr. Holly, to bequeath her property to Mrs. B., and if it be true that she requested Mrs. B.’s father not to provide for her in his will, because she, testatrix, “intended that (Mrs. B.) should have what property she and her husband had;” and if it be true that, in consequence of this declaration, Mrs. B.’s father made no testamentary provision for his said daughter, but omitted her in the bequests of his property, any or all of these declarations and facts can not, per se, invalidate Mrs. Boss’ [274]*274will, if otherwise legally executed. They may be considered, however, in determining, not whether Mrs. Boss should have kept her promise, for that can not arise on this issue, but, in connection with the other evidence, in determining whether her will was obtained by undue influence.
We find no error in the refusal of the court to give the several charges asked by the contestants. Charge 4 gives undue prominence to “obligations” that may have rested, or been supposed to have rested, on testatrix, to provide for the contestant Mrs. B. If she had incurred such obligation, its breach or non-observance could not, per se, furnish ground for withholding probate of the will. If fully established, it could not, in its direct effect, show either a want of mental capacity to make a will, or that the proposed will had been obtained by undue influence. It accomplished its only legitimate function when it received consideration as a circumstance to be weighed in determining whether Mrs. Boss had testamentary capacity, and whether her execution of the paper was obtained by undue influence. This charge was calculated to mislead, and was rightly refused. — 3 Brick. Dig. 118, § 110. Charge 7 is an argument, and some of its postulates are stated as facts, when there was only testimony tending to prove them. This charge was rightly refused. And this is equally true of charge 8. Charges 9 and 10 are each faulty, in that they assume as facts certain propositions, while there is only oral testimony tending to prove their truth. The sufficiency of- the testimony to establish the facts should have been left to the jury.
The 18 charges given at the request of proponent are simply the expression of well defined principles of law, and the Probate Court did not err in giving either of said charges.
Beversed and remanded.