FISHER, Chief Justice.
This is a suit by appellants as the children and grandchildren of J. R. Boone, deceased, to set aside a judgment of the Probate Court of Fannin County, entered January 1, 1900, probating the will of Boone. Hpon a trial of the case in the County Court a judgment was rendered in favor of appellants setting aside the will. From this judgment the legatees in the will, Sarah E. Boone and Buckner’s Orphan Home, appealed to the District Court of Fannin County, where judgment was rendered against the appellants.
The appellants, as grounds for contest, alleged that the will after-its execution was altered in a material respect by the principal legatee, Mrs. Sarah E. Boone; and that the execution of the will was procured by undue influence, exerted by Mrs. Boone, and that the testator, J. R. Boone was wanting in sufficient mental capacity to properly and legally execute the will. This court submitted these questions to the jury upon the following special issues:
“Question Ho. 1. Was the will of J. R. Boone, deceased, dated August 13, 1896, and probated in the County Court of Fannin County January 1, 1900, altered after it was executed, as alleged by the plaintiffs in their amended original petition filed in this court September 9, 1900, so that instead of reading in the latter part thereof 'shall be divided according to her will,’ as it now reads, the said will when it was executed read, 'shall be divided according to this will?’
“Question Ho. 2. Did the said J. R. Boone, deceased, have sufficient mental capacity on August 13, 1896, to make said will? In this
connection I charge you that what is meant by the term sufficient mental capacity to make said will, is meant that at the date of said will he was capable of understanding the nature of the business he was engaged in, the nature and extent of his property, and the person to whom he meant to give it, and the manner in which he was distributing it between the beneficiaries under said will. If he did not have sufficient mind to comprehend such things, then he did not have mental capacity to make said will.
“Question Ho. 3. Was the will procured to be executed by J. R. Boone, deceased,' by undue influence exercised by defendant Sarah E. Boone, upon the said J. R. Boone, deceased. In this connection I charge you that what is meant by undue influence, is such influence as compels the testator to do that which is against his will from fear, desire of peace or some feeling which he is unable to resist. Such influence must, in some measure, destroy the free agency of the testator, and must be sufficient to prevent the exercise of that discretion which the law requires in the exercise of the will. Mere arguments, pursuasions, solicitations or entreaties by a beneficiary in a will is not that character of undue influence which is contemplated by law when speaking of undue influence.”
The court further in its charge instructed the jury as follows: “There has been submitted to you evidence of the conduct and declarations of J. R. Boone, deceased, before and after said will was executed. I charge you that such evidence was submitted to you solely for the purpose of throwing light upon his mind at the time and after said will was executed, if it does throw such light. Such evidence is not admissible to prove the actual fact of undue influence being exercised upon J. R. Boone, deceased, in making said will, but competent to establish the influence and effect of external acts, if any are shown, upon the mind of said Boone, deceased, in making said will. If you believe from the evidence that the execution by J. R. Boone of the will in controversy was not procured by undue influence upon the part of Sarah E. Boone, then you are instructed that any act or thing done by Sarah E. Boone after said will was signed and witnessed would not invalidate such will, either on the ground of undue influence or testamentary capacity.”
The following special instruction at the request of the proponents was given: “You are instructed that the burden of proof is upon the plaintiff Ann Franklin and others, who are required by the preponderance of the evidence to show that at the time that the will was executed • J. R. Boone was of unsound mind, and that the will in controversy was procured by undue influence exercised by Sarah E. Boone upon J. R. Boone at the time or before said will was signed and witnessed; and it is not sufficient, if the evidence merely shows that Sarah E. Boone had an opportunity to exert undue influence over J. R. Boone, nor is the evidence sufficient if it merely shows that Sarah E. Boone attempted to unduly influence J. R. Boone in the making of the will in controversy; nor is the evidence sufficient if it merely shows that Sarah E. Boone, after the will was made, prevented J. R. Boone from changing the will; nor is the evidence sufficient, unless it shows that the influence by Sarah E. Boone over J. R. Boone was unduly exercised
by her at the time of or before the signing of the will, and that such influence caused J. R. B.oone to make a will which he was unwilling to make as his independent free act.”
In response to the special issues, the jury returned the following verdict:
“Question No. 1. We the jury find that the will was not thus altered.
“Question No.
2. We
the jury find that said J. R. Boone did have sufficient mental capacity on August 13, 1896, to make said will.
“Question No. 3. We the jury find that the will of J. R. Boone, deceased, was not procured by undue influence.”
All of these findings are supported by the evidence. There is a conflict of evidence upon the question as to whether the will was altered by Mrs. Boone after its execution; and also a conflict in evidence as to the mental capacity of the testator; but as to the question of undue influence, we are of the opinion that the evidence is of such a character that would have justified the trial court in declining to submit that issue to the jury. The evidence upon this subject does not show that any undue influence was exercised. All that it tends to prove is that merely Mrs. Boone had the opportunity to exercise influence. But, however, upon this question, as well as the other two embraced in the case, the verdict of the jury has settled the questions of fact in favor of appellees.
Appellants’ first assignment of error complains of that portion of the charge of the court which instructs the jury that arguments, persuasions, solicitations and entreaties by the beneficiary is not that character of influence which the law would regard as sufficient to justify setting aside a will. The charge of the court as complained of is substantially in accord with the ruling made in Patterson v. Lamb,
52
S. W., 99; Barry v. Graciette, 6 Texas Ct. Rep., 379, and Morrison v. Thoman,
12
Texas Ct. Rep., 887. But, however, as before said, we are of the opinion that the evidence did not justify an attack upon the will on the ground that its execution was procured by undue influence, and the court could well have treated this question as not arising from the evidence. Therefore, if it could be conceded that this instruction was erroneous it could not constitute • reversible error.
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FISHER, Chief Justice.
This is a suit by appellants as the children and grandchildren of J. R. Boone, deceased, to set aside a judgment of the Probate Court of Fannin County, entered January 1, 1900, probating the will of Boone. Hpon a trial of the case in the County Court a judgment was rendered in favor of appellants setting aside the will. From this judgment the legatees in the will, Sarah E. Boone and Buckner’s Orphan Home, appealed to the District Court of Fannin County, where judgment was rendered against the appellants.
The appellants, as grounds for contest, alleged that the will after-its execution was altered in a material respect by the principal legatee, Mrs. Sarah E. Boone; and that the execution of the will was procured by undue influence, exerted by Mrs. Boone, and that the testator, J. R. Boone was wanting in sufficient mental capacity to properly and legally execute the will. This court submitted these questions to the jury upon the following special issues:
“Question Ho. 1. Was the will of J. R. Boone, deceased, dated August 13, 1896, and probated in the County Court of Fannin County January 1, 1900, altered after it was executed, as alleged by the plaintiffs in their amended original petition filed in this court September 9, 1900, so that instead of reading in the latter part thereof 'shall be divided according to her will,’ as it now reads, the said will when it was executed read, 'shall be divided according to this will?’
“Question Ho. 2. Did the said J. R. Boone, deceased, have sufficient mental capacity on August 13, 1896, to make said will? In this
connection I charge you that what is meant by the term sufficient mental capacity to make said will, is meant that at the date of said will he was capable of understanding the nature of the business he was engaged in, the nature and extent of his property, and the person to whom he meant to give it, and the manner in which he was distributing it between the beneficiaries under said will. If he did not have sufficient mind to comprehend such things, then he did not have mental capacity to make said will.
“Question Ho. 3. Was the will procured to be executed by J. R. Boone, deceased,' by undue influence exercised by defendant Sarah E. Boone, upon the said J. R. Boone, deceased. In this connection I charge you that what is meant by undue influence, is such influence as compels the testator to do that which is against his will from fear, desire of peace or some feeling which he is unable to resist. Such influence must, in some measure, destroy the free agency of the testator, and must be sufficient to prevent the exercise of that discretion which the law requires in the exercise of the will. Mere arguments, pursuasions, solicitations or entreaties by a beneficiary in a will is not that character of undue influence which is contemplated by law when speaking of undue influence.”
The court further in its charge instructed the jury as follows: “There has been submitted to you evidence of the conduct and declarations of J. R. Boone, deceased, before and after said will was executed. I charge you that such evidence was submitted to you solely for the purpose of throwing light upon his mind at the time and after said will was executed, if it does throw such light. Such evidence is not admissible to prove the actual fact of undue influence being exercised upon J. R. Boone, deceased, in making said will, but competent to establish the influence and effect of external acts, if any are shown, upon the mind of said Boone, deceased, in making said will. If you believe from the evidence that the execution by J. R. Boone of the will in controversy was not procured by undue influence upon the part of Sarah E. Boone, then you are instructed that any act or thing done by Sarah E. Boone after said will was signed and witnessed would not invalidate such will, either on the ground of undue influence or testamentary capacity.”
The following special instruction at the request of the proponents was given: “You are instructed that the burden of proof is upon the plaintiff Ann Franklin and others, who are required by the preponderance of the evidence to show that at the time that the will was executed • J. R. Boone was of unsound mind, and that the will in controversy was procured by undue influence exercised by Sarah E. Boone upon J. R. Boone at the time or before said will was signed and witnessed; and it is not sufficient, if the evidence merely shows that Sarah E. Boone had an opportunity to exert undue influence over J. R. Boone, nor is the evidence sufficient if it merely shows that Sarah E. Boone attempted to unduly influence J. R. Boone in the making of the will in controversy; nor is the evidence sufficient if it merely shows that Sarah E. Boone, after the will was made, prevented J. R. Boone from changing the will; nor is the evidence sufficient, unless it shows that the influence by Sarah E. Boone over J. R. Boone was unduly exercised
by her at the time of or before the signing of the will, and that such influence caused J. R. B.oone to make a will which he was unwilling to make as his independent free act.”
In response to the special issues, the jury returned the following verdict:
“Question No. 1. We the jury find that the will was not thus altered.
“Question No.
2. We
the jury find that said J. R. Boone did have sufficient mental capacity on August 13, 1896, to make said will.
“Question No. 3. We the jury find that the will of J. R. Boone, deceased, was not procured by undue influence.”
All of these findings are supported by the evidence. There is a conflict of evidence upon the question as to whether the will was altered by Mrs. Boone after its execution; and also a conflict in evidence as to the mental capacity of the testator; but as to the question of undue influence, we are of the opinion that the evidence is of such a character that would have justified the trial court in declining to submit that issue to the jury. The evidence upon this subject does not show that any undue influence was exercised. All that it tends to prove is that merely Mrs. Boone had the opportunity to exercise influence. But, however, upon this question, as well as the other two embraced in the case, the verdict of the jury has settled the questions of fact in favor of appellees.
Appellants’ first assignment of error complains of that portion of the charge of the court which instructs the jury that arguments, persuasions, solicitations and entreaties by the beneficiary is not that character of influence which the law would regard as sufficient to justify setting aside a will. The charge of the court as complained of is substantially in accord with the ruling made in Patterson v. Lamb,
52
S. W., 99; Barry v. Graciette, 6 Texas Ct. Rep., 379, and Morrison v. Thoman,
12
Texas Ct. Rep., 887. But, however, as before said, we are of the opinion that the evidence did not justify an attack upon the will on the ground that its execution was procured by undue influence, and the court could well have treated this question as not arising from the evidence. Therefore, if it could be conceded that this instruction was erroneous it could not constitute • reversible error.
The second assignment of error complains of the last paragraph of the general charge of the court as above set out. It was not the purpose of this instruction to take away from the consideration of the jury the question as to whether or not Mrs. Boone had altered or changed the will after its execution; but the question submitted by this charge was that the acts or things done by Mrs. Boone after the will was signed and executed would not invalidate the will on either the ground of undue influence or testamentary capacity. This instruction was correct, and the jury evidently understood it to relate to the question of undue influence or testamentary capacity, and they could not by this instruction have been led to believe that the court intended to exclude from their consideration the acts and things done by Mrs. Boone in passing upon the question as to whether or not she had altered the will.
The third assignment of error complains of the special charge of the
court set out in the opinion on the subject of burden of proof. The appellants’ case was an attack upon the judgment of the court probating the will, and this judgment, until set aside, is supposed to be based upon facts that would authorize its rendition, and in order to overcome it and successfully attack it, the burden did rest upon the appellants to establish the facts relied upon by them.
The fourth assignment of error complains of the action of the court in refusing to permit the appellants to introduce in evidence the interrogatories and answers of Mrs. Belinda Morton, the divorced wife of J. B. Boone, deceased. The facts and evidence sought to be established was of a confidential nature between husband and wife, and we think the court correctly held that it was not admissible.
There was no error in the action of the court in declining to admit the evidence of the witness Trice, as complained of in the fifth assignment of error. It was proper for Trice to state the facts and then state an opinion as to the mental capacity of J. B. Boone; but his statement to the effect that Boone was not capable of self-control or self-government was not admissible. That was a conclusion of the witness, which the jury from the facts detailed, would be as capable of judging and determining as the witness. A witness can express his opinion as to the unsound condition of the mind of the testator, based upon facts within his knowledge.
The sixth assignment of error complains of the action of the trial court in not permitting Lucy Spicer, a granddaughter of J. B. Boone to answer the following question: “Which controlled, if either, the conduct of the other, J. B. Boone or Sarah Boone?” To which the witness replied that Sarah E. Boone controlled the conduct of J. B. Boone in most of the matters; that she was there at the house often and saw it herself. The fact testified to was merely the expression of the opinion or conclusion of the witness, and was properly excluded. If the question of undue influence was properly in the case, the witness should -state the acts indicating the influence, and let the jury judge and determine whether Mrs. Boone controlled the conduct'of J. B. Boone.
The seventh and eighth assignments of error complains of the action of the trial court in overruling appellants’ motion for new trial, on the ground that the evidence shows that the will was altered by Mrs. Boone after its execution and of a want of sufficient mental capacity and the existence of undue influence. The verdict of the jury has settled, these questions.
The ninth assignment of error is to the effect that the court erred in rendering judgment for defendants and in refusing to set aside the will because the same is invalid, in that it provides that the testator’s property, in case Boone did not establish a charity at Bandolph, Texas, should be divided between Sarah E. Boone and the Orphans’ Home, according to her will, that is the will of Mrs. Boone. The proposition submitted under this assignment is, that a gift,
mortis causa,
of a fund in trust to be disposed of for benevolent purposes at the absolute and unlimited discretion of the donee can not be sustained. The clause of the will in question under which this contention is made, is as follows:
"Second. All the balance of my property, it is my will and desire to devote to charity, first to Buckner's Orphan Home, second, to some charitable institution which I want to establish at Randolph, Texas, but if I should die without making provisions for said institution at Randolph, Texas, then it is my will and desire that all my property, land, notes and money shall be divided according to her will between my wife and Buckner’s Orphan Home.”
There is nothing in the record showing that the testator before his death made any provision for establishing the charitable institution at Randolph, Texas. Buckner’s Orphan Home is one of the appellees in this case and is a party to the proceeding with Mrs. Boone interested in the probation of the will. There is no contest between these parties, and, so far. as appears from the record, they seem to be satisfied that the intention of the testator, as indicated in the clause of the will quoted, will be observed. The will provides that if no institution is established at Randolph, Texas, then the property, lands, notes and money, shall be divided between Mrs. Boone and Buckner’s Orphan Home, and the will empowers Mrs. Boone to make the division. This fact does not deprive the Orphan’s Home of any right that it might have under the will, and the testator had the power, if he so desired, to select Mrs. Boone as the proper person to make the division of the property. If the Orphan’s Home is contented with this selection, we see no lawful reason why the will, by reason of this power should be invalid, or the contestants be permitted to object to it for this reason.
We find no error in the record, and the judgment is affirmed.
Affirmed.