By the Court:
The case is now before us on appeal from the register, and as required and provided by the constitutional provision which we have before referred to in the litigation of the [448]*448case before him, this testimony of the witness named was reduced to writing, and together with the testimony of all other witnesses, in writing also, saw sent up with they appeal, and as it makes part of the proceedings in the case, it is of course now before this court on the appeal, and may be read in evidence to the jury. But it might be admitted to be read in evidence, independent of that provision, on the general principle that it was testimony reduced to writing taken in this same case between the same parties on the former hearing of it before the register. 1 Greenl. Ev., secs. 163, 553.
It was then read to the jury and was to the effect that the old man knew and understood what he was doing when the paper writing was executed.
Robert Burgie, sworn: He had been acquainted with George Dougherty for about two years before his death, and was at his house a good deal during that time, and his conversation was mostly with him when he was there; the last time he was there was about six months before his death, and he was then capable enough of making a will; he is a nephew of his widow, Mrs. Dougherty.
John Forwood, affirmed: Knew George Dougherty from the time he bought and moved, till he died on his farm, in Brandy-wine Hundred, or about forty years. After his son John moved on his farm adjoining that, he told me that he had offered to sell it to him for a thousand dollars, but he wanted his son George to have the farm he then lived on; that was about a year before his death.
George Lutz, sworn: Was acquainted with George Dougherty and was frequently there; the last time was a week before Christmas in 1876, and talked with him a good deal while he was there on that occasion; he was sound enough in mind and memory then to make a will.
Thomas Wiggins, sworn: He lived with and worked for George Dougherty as a farm hand four years up to the week before Christmas before he died; during that time the old man worked a good deal about on the farm in different ways until he got tired, and then he would quit.
[449]*449Several witnesses were then called on the other side who impeached the character of George Reilley for veracity in the usual method.
In the argument of the case Lore asked the court to instruct the jury: 1, what constitutes a sound disposing mind and memory in contemplation of .law; 2, that every person of lawful age who executes such an instrument is presumed to possess a sound disposing mind and memory until the contrary appears and is satisfactorily shown to the minds of the jury called to decide the question; 3, that that question and inquiry pertains and relates to the precise time of the making and execution of the will; 4, that the testimony of the subscribing witnesses to the will is entitled to peculiar weight upon that question in the consideration and determination of it by the jury, and cited Chandler and Others v. Ferris, 1 Harr. 454, in which the court charged the jury that if they were of opinion from the evidence that the testator was capable of exercising thought and judgment and reflection, if he knew what he was about and had memory and judgment, his will could not be invalidated on the ground of insanity, which was one of the grounds on which the validity of it was assailed in that case. Neither could it be set aside on the ground of undue influence unless such influence amounted to a degree of constraint such as the testator was too weak to resist • such as deprived him of his free agency, and prevented him from doing what he pleased with his property. Neither advice nor argument nor persuasion would vitiate a will made freely and from conviction, though such will might not have been made but for such advice and persuasion. Duffield v. Morris’ Exr., 2 Harr. 375, in which the court said to ■ the jury that reason being the common gift of God to man . raises the general presumption that every man is in a state of sanity until the contrary is proved; every man, therefore, of full age has the right to dispose of his property by will, unless he can be shown to be insane, non compos mentis, of unsound mind, or wanting what is called a sound disposing mind and memory. A sound mind is one wholly free from delusion, all the intellectual faculties existing in a certain degree of vigor and harmony; the propensities, affections, and passions being under [450]*450subordination to the will and judgment, the latter being the controlling powerj with a just perception of the natural connection or repugnancy of ideas. Weak minds again only differ from strong ones in the extent and power of their faculties; but unless they betray symptoms of a total loss of understanding or of idiocy or of delusion they cannot properly be considered unsound. A perfect capacity is usually tested by this, that the individual talks and discourses rationally and sensibly and is fully capable of any rational act requiring thought, judgment, and reflection. This is the standard of a perfect capacity; but the question is not how well a man can talk or reason, or with how much judgment he can act, or with how great propriety and sense he can act; it is only, has he mind and reason? can he talk rationally and sensibly? or, has he thought, judgment, and reflection? Weakness of mind may exist in many different degrees without making a man intestable. Courts will not measure the extent of people’s understandings or capacities if a man be legally compos mentis. Be he wise or unwise, he is the disposer of his own property, and his will stands as the reason for his actions.
Again, in the case of Sutton v. Sutton et al., 5 Harr. 459, the court said to the jury that the testable capacity of such a person as the testator in that case, of whom insanity was not supposed, would amount to nothing more than a knowledge of what he was about when he made the will, and how he was disposing of his property and the purpose so to do it; and as to undue influence over a man of testable capacity, it must be such as to take away his free will such as he is too weak to resist. Mere solicitation will not be sufficient to vitiate a will made by a person having a knowledge of what he is doing and intending to do it when making it, though his act may be brought about by solicitation or that kind of influence which a disposition to gratify another may produce. But if from age or imbecility a testator could be induced to change his will contrary to his intentions and against his own wishes, that would be undue influence, and its effect upon a doubtful or fluctuating capacity would invalidate the will. On all these points thé age and bodily condition of the testator, his condition and circumstances, his known affec[451]*451tians and preferences, and the correspondence or contradiction of the will to these affections, the manner of making or altering the will, the persons around him at the time, their capacity and credibility, are all facts to be considered.
In the case of Cordrey v. Cordrey, 1 Houst. 269, the court charged in substantially the same terms and that, the formal execution of the will being established, the presumption of law is in favor of the capacity of the testator to make it, and in the case of Lodge’s Will, 2 Houst.
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By the Court:
The case is now before us on appeal from the register, and as required and provided by the constitutional provision which we have before referred to in the litigation of the [448]*448case before him, this testimony of the witness named was reduced to writing, and together with the testimony of all other witnesses, in writing also, saw sent up with they appeal, and as it makes part of the proceedings in the case, it is of course now before this court on the appeal, and may be read in evidence to the jury. But it might be admitted to be read in evidence, independent of that provision, on the general principle that it was testimony reduced to writing taken in this same case between the same parties on the former hearing of it before the register. 1 Greenl. Ev., secs. 163, 553.
It was then read to the jury and was to the effect that the old man knew and understood what he was doing when the paper writing was executed.
Robert Burgie, sworn: He had been acquainted with George Dougherty for about two years before his death, and was at his house a good deal during that time, and his conversation was mostly with him when he was there; the last time he was there was about six months before his death, and he was then capable enough of making a will; he is a nephew of his widow, Mrs. Dougherty.
John Forwood, affirmed: Knew George Dougherty from the time he bought and moved, till he died on his farm, in Brandy-wine Hundred, or about forty years. After his son John moved on his farm adjoining that, he told me that he had offered to sell it to him for a thousand dollars, but he wanted his son George to have the farm he then lived on; that was about a year before his death.
George Lutz, sworn: Was acquainted with George Dougherty and was frequently there; the last time was a week before Christmas in 1876, and talked with him a good deal while he was there on that occasion; he was sound enough in mind and memory then to make a will.
Thomas Wiggins, sworn: He lived with and worked for George Dougherty as a farm hand four years up to the week before Christmas before he died; during that time the old man worked a good deal about on the farm in different ways until he got tired, and then he would quit.
[449]*449Several witnesses were then called on the other side who impeached the character of George Reilley for veracity in the usual method.
In the argument of the case Lore asked the court to instruct the jury: 1, what constitutes a sound disposing mind and memory in contemplation of .law; 2, that every person of lawful age who executes such an instrument is presumed to possess a sound disposing mind and memory until the contrary appears and is satisfactorily shown to the minds of the jury called to decide the question; 3, that that question and inquiry pertains and relates to the precise time of the making and execution of the will; 4, that the testimony of the subscribing witnesses to the will is entitled to peculiar weight upon that question in the consideration and determination of it by the jury, and cited Chandler and Others v. Ferris, 1 Harr. 454, in which the court charged the jury that if they were of opinion from the evidence that the testator was capable of exercising thought and judgment and reflection, if he knew what he was about and had memory and judgment, his will could not be invalidated on the ground of insanity, which was one of the grounds on which the validity of it was assailed in that case. Neither could it be set aside on the ground of undue influence unless such influence amounted to a degree of constraint such as the testator was too weak to resist • such as deprived him of his free agency, and prevented him from doing what he pleased with his property. Neither advice nor argument nor persuasion would vitiate a will made freely and from conviction, though such will might not have been made but for such advice and persuasion. Duffield v. Morris’ Exr., 2 Harr. 375, in which the court said to ■ the jury that reason being the common gift of God to man . raises the general presumption that every man is in a state of sanity until the contrary is proved; every man, therefore, of full age has the right to dispose of his property by will, unless he can be shown to be insane, non compos mentis, of unsound mind, or wanting what is called a sound disposing mind and memory. A sound mind is one wholly free from delusion, all the intellectual faculties existing in a certain degree of vigor and harmony; the propensities, affections, and passions being under [450]*450subordination to the will and judgment, the latter being the controlling powerj with a just perception of the natural connection or repugnancy of ideas. Weak minds again only differ from strong ones in the extent and power of their faculties; but unless they betray symptoms of a total loss of understanding or of idiocy or of delusion they cannot properly be considered unsound. A perfect capacity is usually tested by this, that the individual talks and discourses rationally and sensibly and is fully capable of any rational act requiring thought, judgment, and reflection. This is the standard of a perfect capacity; but the question is not how well a man can talk or reason, or with how much judgment he can act, or with how great propriety and sense he can act; it is only, has he mind and reason? can he talk rationally and sensibly? or, has he thought, judgment, and reflection? Weakness of mind may exist in many different degrees without making a man intestable. Courts will not measure the extent of people’s understandings or capacities if a man be legally compos mentis. Be he wise or unwise, he is the disposer of his own property, and his will stands as the reason for his actions.
Again, in the case of Sutton v. Sutton et al., 5 Harr. 459, the court said to the jury that the testable capacity of such a person as the testator in that case, of whom insanity was not supposed, would amount to nothing more than a knowledge of what he was about when he made the will, and how he was disposing of his property and the purpose so to do it; and as to undue influence over a man of testable capacity, it must be such as to take away his free will such as he is too weak to resist. Mere solicitation will not be sufficient to vitiate a will made by a person having a knowledge of what he is doing and intending to do it when making it, though his act may be brought about by solicitation or that kind of influence which a disposition to gratify another may produce. But if from age or imbecility a testator could be induced to change his will contrary to his intentions and against his own wishes, that would be undue influence, and its effect upon a doubtful or fluctuating capacity would invalidate the will. On all these points thé age and bodily condition of the testator, his condition and circumstances, his known affec[451]*451tians and preferences, and the correspondence or contradiction of the will to these affections, the manner of making or altering the will, the persons around him at the time, their capacity and credibility, are all facts to be considered.
In the case of Cordrey v. Cordrey, 1 Houst. 269, the court charged in substantially the same terms and that, the formal execution of the will being established, the presumption of law is in favor of the capacity of the testator to make it, and in the case of Lodge’s Will, 2 Houst. 418, the court charged that if the jury were satisfied from the evidence that the testator signed the paper writing knowing it to be his will, and the witnesses to it attested and subscribed the same in his presence, the will was duly executed and must be recognized to be a valid will, unless he was mentally incapable of making a will or unless undue influence was exerted over his mind to such an extent as to procure a disposition of his property to be made contrary to his real wishes. Every person is presumed in law to be of sound mind until the contrary is shown, and the burden of showing an unsound mind in the testator rests on the party contesting the validity of the will, and the testimony must relate to the time of its execution. Mere weakness of mind or partial imbecility from disease of the body or from age will not render a person incapable of making a will. A weak or feeble-minded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is about and to whom he is disposing of his property. If, therefore, the testator at the time of executing the will, was capable of exercising thought, reflection, and judgment, knew what he was doing and how he was disposing of his property and had sufficient memory and understanding to comprehend the nature and character of the transaction, he was capable of making a will. Undue influence must be such an influence exerted over the testator’s mind as to take away or destroy for the time his own free will, and must be such an influence obtained either by flattery, excessive importunity or threats, or in some other mode by which such a dominion is acquired over the will of the testator as to overbear and destroy his free agency and constrain him to ¿lo against his free will what he is unable to refuse. But [452]*452that influence which is acquired by modest persuasion or by arguments addressed to the understanding or by mere appeals made to the affections of the testator, does not in contemplation of law amount to undue influence, or such influence as will invalidate a will.
Whiteley, in reply,
simply cited Swinburn 72 and 3 Stark. Ev. 1703. The authorities on the subject state that no person who is non compos can make a will, and the term comprehends not only idiots and lunatics, but all other persons who from natural imbecility, disease, old age, or other such causes are incapable of managing their own affairs. The words mean the same with [453]*453the English words “ of unsound mind.” An old man become childish or so forgetful as not to remember his own name cannot make a will; and, accordingly, to make a will valid it is not enough for the testator to have had memory sufficient to answer familiar and usual questions, but he must have had a disposing mind so as to have been able to make a disposition of his estate with understanding and reason. Swinburn observes that “ the sane memory for making a will is not at all times when the party can speak yea or no, and hath life in him, but he ought to have judgment to discern and be of perfect memory, otherwise the will is void,” and therefore the evidence ought to go to this extent.
[452]*452And in the case of Jamison’s Will, 3 Houst. 108, the court again charged to the same effect and in terms even still more particularly applicable to this case. In that case it said the question of a testator’s capacity to make a will is to be decided by the jury solely by the facts which the testimony in the case discloses. And upon that question the opinions of the subscribing witnesses to the will, if they are persons of intelligence and veracity, are entitled to great weight. Intellectual feebleness alone, or mere weakness of the understanding, or a partial failure of mind or memory, or even a failure of mind or memory to a considerable extent, whether it be natural or the result of an injury or of disease, or arises from an attack of apoplexy or paralysis, or from any other cause, is not of itself a sufficient ground for setting aside a will if there still remains ' sufficient mind and memory to enable the testator to comprehend and understand what he is doing. If he is able to understand that he is disposing of his estate by his will, and to whom he is disposing of it, however weak his intellect may be he is able and competent to make a will. The question is not so much as to the degree of mind or memory possessed by the testator, as this, Was he capable of recollecting what property he was disposing of and to whom he was disposing of it ? In a word, were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed the will ? If they were, then he was capable of making it, and it was his will.
[453]*453The Court, Wootten, J., charged the jury at length on all the points of law presented in the case, and on which he was requested to charge them by the counsel for the appellee, in conformity with the rulings in the cases cited by him, and the jury returned a verdict that the paper writing in question was not the last will and testament of George Dougherty, deceased.