COLEMAN, J.
— The appeal comes up from a contest of the probate of the will of Lucinda R. Jenkins. The grounds of contest were, fraud, undue influence, and mental incapacity. Decedent left no issue. The contestants were the brothers and sisters of testatrix, and the beneficiaries under the will were Dora Hall, wife of proponent, Geo. W. Hall, and James O. B. Jenkins, a youth about ten years of age,' neither of whom were of blood kin to testatrix. The evidence shows, that testatrix raised Dora Hall from infancy, and that until her marriage and afterwards, until death of testatrix, they had lived together. The evidence shows that when. James O. B. Jenkins, the other devisee, was about eight days old his mother died and a day or two before her death, she gave her infant to testatrix, who took him, and kept him until he was six or seven years old, and then sent the boy to his father, Green B. Jenkins. It is in evidence that she spoke of both as her children, and they always called her “Ma” or “Mama.”
There is not a particle of evidence tending to show that testatrix, either before or after the execution of the will was wanting in a testamentary capacity, except the evidence that she was quite sick at the time of its execution, and a declaration, testified to by the wife of one of the contestants, that after her recovery and while on a visit to see them, sire stated that “she could not remember what happened during her illness,” and that it all “seemed like a dream.” Otherwise, the evidence shows that she was a woman of good mind and of self-reliant character.
There is no evidence that either of the beneficiaries under the will in person, at any time by word or act, [95]*95■did or attempted to exercise any influence over her as to the disposition of her property. In fact, we cannot well see how a mere boy, not exceeding ten years of age, who was not present, could control or influence the disposition of her property. The contest as to undue influence is rested upon the grounds ; first, declarations of testatrix testified to by contestants, that she was not satisfied with the way Geo. W. Hall, husband of Dora Hall, managed her property, and that she did not want the Jenkins to have any of her property; second, the character of the disposition of her property, in that she gave it all to Dora Hall and James O. B. Jenkins and none to her heirs-at-law, and declarations to the effect, that the law was a good enough will for her ; third, the confidential relations of Geo. W. Hall, and the active part of Hall, whose wife was a beneficiary, and that of Green B. Jenkins, father of the other legatee, in procuring the execution of the will. If the will was procured by undue influence, whether exercised directly by the beneficiaries, or others for them, the result would be the same.
That testatrix signed an instrument properly attested which purports to be her last will and testament is not an open question.
There is evidence by disinterested witnesses of repeated declarations on her part, to the effect, that she intended “Dora and Jimmie” to have her property. There is evidence also by her attending physician and other disinterested witnesses that her mental condition was good at the time the instrument was executed, and none to the contrary except the fact of her illness and declarations alleged to have been made after her recovery. The evidence tends to show that Geo. W. Hall, the husband of Dora, with whom testatrix resided, attended to and managed her business for her. It also shows that he and Green B. Jenkins employed an attorney to write the will, and dictated its provisions to the attorney, and enjoined secrecy upon him as to its contents and execution. Although there was no devise or bequest to ■ Geo. W. Hall, being the husband of Dora Hall, we are of opinion the facts of the case bring the devises or bequests to Dora Hall under the influence of the principle declared in Bancroft v. Otis, 91 Ala. 279; and “raise up a presumption of undue influence and cast the burden upon her of [96]*96showing that it was not induced by coercion or fraud on her part, directly or indirectly.”
We are of opinion that the facts do not raise the same presumption as to James O. B. Jenkins. His father, Green B. Jenkins, it is true, was present when the will was signed, and there is evidence tending to show that he participated with Geo. W. Hall in all matters relating to its preparation and execution. There is an utter absence of evidence tending to show that testatrix was dependent on him, or that he had any influence with or over her, or that-he ever advised or consulted with her in business matters, or held or occupied a confidential relation or one of influence towards her in any respect. The presumption of undue influence does not arise from the mere fact of taking an active part in procuring the execution of a will. A presumption of fraud or deceit may arise, when the writer of the will, takes a legacy under it, but not of' undue influence. Such conduct or participation to create a presumption of undue influence must be coupled with a benefit under the will and evidence of .confidential relations, or dependency, or some position pr fact-which tends to show that the party was able to exercise an undue.influence, if he desired to do so. There is no-evidence in this record which tends to place Green B. Jenkins in this relation towards the testatrix. She had. brothers and sisters living in the same village with her and near by. Green B. Jenkins lived in a different' State, and was by no means a frequent visitor. His-testimony is, that he was requested by testatrix to have her will written, that she gave him instructions as to how it should be prepared, and requested him to ask the attorney who wrote it, to make no mention of the matter to any one, giving her reasons at the time, and that he simply followed her instructions in all respects. It is proven beyond all question, that the will was read over to her, and that she expressed her entire satisfaction with its provisions— Lyons v. Campbell, 88 Ala. 469; Carrett v. Heflin, 98 Ala. 615, 618 ; Daniel v. Hill, 52 Ala. 430. So far as James O. B. Jenkins is concerned, the-evidence, without conflict and without any contrary legal presumptions, shows that the influence exercised in his interest was purely from affection for him, and the court would not have erred in so instructing . the jury, upon written request. Geo. W. Hall offered evi[97]*97dence tending to overcome the presumption of undue influence which rested on him. Where the evidence shows, that the will, in part, was the effect or result of undue influence, and in part, the act of the testator’s own free will, the will is not wholly void. The latter must stand, although annulled as to the former. — Eastis v. Montgomery, 93 Ala. 299; Lyons v. Campbell, 88 Ala. 462 ; Florey v. Florey, 24 Ala. 248.
With these principles settled we will proceed to consider the instructions for the jury, given and refused by the court upon which appellants have assigned errors, and which ai’e discussed in the written arguments and briefs of counsel. Errors assigned in civil cases which counsel do not consider of sufficient importance to receive consideration by them, and there are many of this description in this case, will be regarded by us also as unimportant.
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COLEMAN, J.
— The appeal comes up from a contest of the probate of the will of Lucinda R. Jenkins. The grounds of contest were, fraud, undue influence, and mental incapacity. Decedent left no issue. The contestants were the brothers and sisters of testatrix, and the beneficiaries under the will were Dora Hall, wife of proponent, Geo. W. Hall, and James O. B. Jenkins, a youth about ten years of age,' neither of whom were of blood kin to testatrix. The evidence shows, that testatrix raised Dora Hall from infancy, and that until her marriage and afterwards, until death of testatrix, they had lived together. The evidence shows that when. James O. B. Jenkins, the other devisee, was about eight days old his mother died and a day or two before her death, she gave her infant to testatrix, who took him, and kept him until he was six or seven years old, and then sent the boy to his father, Green B. Jenkins. It is in evidence that she spoke of both as her children, and they always called her “Ma” or “Mama.”
There is not a particle of evidence tending to show that testatrix, either before or after the execution of the will was wanting in a testamentary capacity, except the evidence that she was quite sick at the time of its execution, and a declaration, testified to by the wife of one of the contestants, that after her recovery and while on a visit to see them, sire stated that “she could not remember what happened during her illness,” and that it all “seemed like a dream.” Otherwise, the evidence shows that she was a woman of good mind and of self-reliant character.
There is no evidence that either of the beneficiaries under the will in person, at any time by word or act, [95]*95■did or attempted to exercise any influence over her as to the disposition of her property. In fact, we cannot well see how a mere boy, not exceeding ten years of age, who was not present, could control or influence the disposition of her property. The contest as to undue influence is rested upon the grounds ; first, declarations of testatrix testified to by contestants, that she was not satisfied with the way Geo. W. Hall, husband of Dora Hall, managed her property, and that she did not want the Jenkins to have any of her property; second, the character of the disposition of her property, in that she gave it all to Dora Hall and James O. B. Jenkins and none to her heirs-at-law, and declarations to the effect, that the law was a good enough will for her ; third, the confidential relations of Geo. W. Hall, and the active part of Hall, whose wife was a beneficiary, and that of Green B. Jenkins, father of the other legatee, in procuring the execution of the will. If the will was procured by undue influence, whether exercised directly by the beneficiaries, or others for them, the result would be the same.
That testatrix signed an instrument properly attested which purports to be her last will and testament is not an open question.
There is evidence by disinterested witnesses of repeated declarations on her part, to the effect, that she intended “Dora and Jimmie” to have her property. There is evidence also by her attending physician and other disinterested witnesses that her mental condition was good at the time the instrument was executed, and none to the contrary except the fact of her illness and declarations alleged to have been made after her recovery. The evidence tends to show that Geo. W. Hall, the husband of Dora, with whom testatrix resided, attended to and managed her business for her. It also shows that he and Green B. Jenkins employed an attorney to write the will, and dictated its provisions to the attorney, and enjoined secrecy upon him as to its contents and execution. Although there was no devise or bequest to ■ Geo. W. Hall, being the husband of Dora Hall, we are of opinion the facts of the case bring the devises or bequests to Dora Hall under the influence of the principle declared in Bancroft v. Otis, 91 Ala. 279; and “raise up a presumption of undue influence and cast the burden upon her of [96]*96showing that it was not induced by coercion or fraud on her part, directly or indirectly.”
We are of opinion that the facts do not raise the same presumption as to James O. B. Jenkins. His father, Green B. Jenkins, it is true, was present when the will was signed, and there is evidence tending to show that he participated with Geo. W. Hall in all matters relating to its preparation and execution. There is an utter absence of evidence tending to show that testatrix was dependent on him, or that he had any influence with or over her, or that-he ever advised or consulted with her in business matters, or held or occupied a confidential relation or one of influence towards her in any respect. The presumption of undue influence does not arise from the mere fact of taking an active part in procuring the execution of a will. A presumption of fraud or deceit may arise, when the writer of the will, takes a legacy under it, but not of' undue influence. Such conduct or participation to create a presumption of undue influence must be coupled with a benefit under the will and evidence of .confidential relations, or dependency, or some position pr fact-which tends to show that the party was able to exercise an undue.influence, if he desired to do so. There is no-evidence in this record which tends to place Green B. Jenkins in this relation towards the testatrix. She had. brothers and sisters living in the same village with her and near by. Green B. Jenkins lived in a different' State, and was by no means a frequent visitor. His-testimony is, that he was requested by testatrix to have her will written, that she gave him instructions as to how it should be prepared, and requested him to ask the attorney who wrote it, to make no mention of the matter to any one, giving her reasons at the time, and that he simply followed her instructions in all respects. It is proven beyond all question, that the will was read over to her, and that she expressed her entire satisfaction with its provisions— Lyons v. Campbell, 88 Ala. 469; Carrett v. Heflin, 98 Ala. 615, 618 ; Daniel v. Hill, 52 Ala. 430. So far as James O. B. Jenkins is concerned, the-evidence, without conflict and without any contrary legal presumptions, shows that the influence exercised in his interest was purely from affection for him, and the court would not have erred in so instructing . the jury, upon written request. Geo. W. Hall offered evi[97]*97dence tending to overcome the presumption of undue influence which rested on him. Where the evidence shows, that the will, in part, was the effect or result of undue influence, and in part, the act of the testator’s own free will, the will is not wholly void. The latter must stand, although annulled as to the former. — Eastis v. Montgomery, 93 Ala. 299; Lyons v. Campbell, 88 Ala. 462 ; Florey v. Florey, 24 Ala. 248.
With these principles settled we will proceed to consider the instructions for the jury, given and refused by the court upon which appellants have assigned errors, and which ai’e discussed in the written arguments and briefs of counsel. Errors assigned in civil cases which counsel do not consider of sufficient importance to receive consideration by them, and there are many of this description in this case, will be regarded by us also as unimportant. The errors in relation to the instructions insisted upon in argument are-those which refer, 1st, to the declarations of testatrix made after her recovery in regard to her mental condition during her sickness when the instrument was executed, and, 2d, those based upon the evidence which refer to the action and conduct of Geo. W. Hall and Green B. Jenkins in procuring the execution of the will; and 3rd, those based upon the alleged unnatural character of the will.
Refused charges Nos. 2 and 3, relate to the first proposition. The entire evidence under this proposition, that admitted and that excluded, was given by W. J. Henry, a brother, Z. E. A. Henry, who we infer was his wife, and is as follows : W. J. Henry: “She said she did not remember much that occured during her sickness, and that everything seemed like a dream.” Mrs. E. A. Henry: “She made us a visit aboxxt a month or more after her sickness. She said that she could not 'remember nothing during, her sickness clearly. That everything seemed like a dream to her, and said she had not been fit to attend to business of any kind for the past twelve inonths. Yes, she said she could not recollect ■nothing, that was said during her sickness. She said she did not get the attention she should have had while sick, and that everything seemed like a dream while sick. She remembered me being there during her sickness.” The charges (2 and 3) single out a fact and give it undue prominence. Such charges are misleading and [98]*98argumentative, and in refusing them the court did not commit a reversible error. The declarations which were made a month afterwards, if competent for any purpose did not justify the inference, that at the time of the execution of the will, she did not have testamentary capacity, as asserted in the second charge; nor would these facts, when considered in connection with all the evidence, justify a finding of testamentary incapacity. These witnesses testify that, on the night and just before the will was signed, testatrix noticed, that Hall and Jenkins were absent. She enquired where they were, and remarked that they were staying out late. They testify that she requested them to stay all night, and not one of them gives evidence of any fact, which in any manner indicates that at that time, she was not competent to make a will. The court would have been fully justified, under the evidence, in instructing the jury that testatrix possessed testamentary capacity. The only questions open for discussion are of fraud and undue influence.
Charge 4 is abstract. There is no evidence that the beneficiaries under the will, and especially as to James O. B. Jenkins, personally were active in the preparation and procuring the execution of the will, and that confidential relations, in the meaning of the law, existed between him, or either beneficiary, and testatrix.
Charges 5 and 6, are objectionable in this : they demand a verdict against the validity of the will, upon the facts predicated, without reference to the explanatory evidence. Although the facts predicated in these charges may be true, yet if the jury believe from the evidence, that Green B. Jenkins in all he did, acted under the free and voluntary instructions of testatrix, the facts predicated in these charges would not justify a conclusion adverse to the validity of the will. This principle was declared in the cases of Eastis v. Montgomery, 95 Ala. 486, 493; Bancroft v. Otis, 91 Ala. 290. These charges also ignored another principle of law, well settled, and that is, that a will may be valid in part and invalid in part. The proof fails to establish confidential relations or such relations between Green B. Jenkins and testatrix, as to raise a presumption of undue influence as to him upon the facts predicated, whatever may be true as to [99]*99Geo. W. Hall. Charge 9 is especially faulty in this respect.
Charges 7 and 8 are not only subject to the same criticism, but are faulty in its definition of an ‘ ‘unnatural will.” A will is not necessarily unnatural because of a discrimination between heirs of the same- degree, or because of the entire exclusion of a part or all of them. The circumstances of the case must determine the naturalness of a donation or bequest. It cannot be said as a matter of law, that affection for one, though not of kin, raised from infancy by the donor and who has always been a member of the family of the donor, is unnatural or that a gift or bequest to such a person is unnatural. It is a question of fact for the jury. These questions were fully considered in Burney v. Torrey, 100 Ala. 157; Eastis v. Montgomery, 95 Ala. 486, supra.
Charge 11 is not only infected with the infirmity which pervades charges 5 and 6, but abstract in the predicate that Dora Hall received a ‘‘large benefit” under the will. There .is no evidence of the value of the estate in the record.
The evidence shows that testatrix was fifty-five years old at the time of her death. Her age would not authorize the jury to draw any unfavorable inference against the validity of the will upon the. ground that she was “an old lady.” Charge 12 was faulty in this respect, in addition to the objection that it ignores explanatory evidence, and subjects James O. B. Jenkins to the presumptions of law, which arise from the confidential relations of Geo. W. Hall to testatrix.
Charges 13, 14 and 15 are subject to criticism applied to other charges. Fifteen is also argumentative. It is no part of the province of a jury to determine the duty of a testator to his next of kin, and no presumptions of incapacity or undue influence arise from the more fact, that a testator has not disposed of his or her property, as a jury might suppose it should have been disposed of, or that a different disposition was made of it, than made by the law, in cases of intestacy. These are mere circumstances to be weighed with other evidence.
There was no error in refusing charge 16. — Knox v. Knox, 95 Ala. 495 ; Eastis v. Montgomery, 95 Ala. 486, supra; Burney v. Torrey, 100 Ala. 157, supra.
Charge 17 is argumentative and in some respects ab[100]*100s tract. What we have said in reference to some other charges applies to No. 18. No. 19 is confused, abstract in some respects and erroneous in principle.
Charges given for proponent have not been discussed in argument for appellant, and we will not consider them. •
There was no error in overruling the motion to suppress the deposition of the witness Evans, as a whole. The motion was not sustained by the facts. Objection to certain parts óf a deposition, which are not identified further than by a reference to lines 12 to 21, and 27 to 29 of the original deposition, cannot be considered. Wo have np means of identifying the objectionable part in the transcript of appeal. There is no merit in any assignment of error based upon the ruling of the court upon questions of evidence except that contained in the 24th assignment of error. The declarations of testatrix testified to by John A. Henry, according to the date given by him, were made in April, 1891, and were prior in time to the execution of the will. These statements were admissible in evidence, and if the motion to exclude had applied to these statements alone, the action of'the court in excluding them might have constituted a reversible error; but the motion included also the statements testified to by G. W. J. Henry, some of which were made some time after the execution of the will, such as “she did not remember much about her sickness,” “it seemed like a dream,” and were no part of the res gestae. In the case of Roberts v. Trawick, 13 Ala. 68, it was held that such statements were not admissible. This rule was subsequently recognized or followed in the following cases : Roberts v. Trawick 17 Ala. 55 ; Gilbert v. Gilbert, 22 Ala. 529; Seals v. Chambliss, 35 Ala. 22; and the principle is sustained by the following authorities : Smith v. Fenner, Gallison Rep. 170; Iddings v. Iddings, 7 Serg. & Rawls, 111; 2 Gr. Ev. § 690. The motion to exclude was general and included both legal and illegal evidence, and the exception embraced both that which was legal as well as the illegal. We will not put the court in error upon a motion and an exception to the ruling of the court, either in admitting or excluding evidence, a part of which is legal and a portion illegal, when the exception goes to the entire ruling of the court. The grounds upon which the motion to exclude [101]*101the evidence was based, were not well taken, as has been stated, but the action of the court can be sustained upon those stated by us. Notwithstanding the witness John A. Henry fixes April as the time when these declarations were made, judging from their character and the other facts in the case, we are of opinion they were really made after the execution of the will.
The estate of a decedent is not interested, within the meaning of the law, in proceedings to probate a will. The estate remains the same whether the will be probated or not. All parties in interest are competent to testify to any fact which is relevant and 'material to the issue. This is the rule declared in Kumpe v. Coons, 63 Ala. 448, and the amendments to the statute have not changed the rule in this respect. — Acts of 1890-91, p. 557 ; Code of 1886, § 2765. It is clear upon the whole testimony, that the admission of this evidence ought not to have changed the result of the contest. The evidence clearly established that the testatrix had testamentary capacity and the execution of the will is in legal form. The evidence of disinterested witnesses shows that testatrix was strongly attached to those whom she had raised from infancy, and often expressed a desire that they should succeed'to her property. The only evidence which can be said in any manner to conflict with such intention or desire on her part, is the declaration testified to by those interested as legal heirs, “that she had done enough for the Jenkinses, and that the law was a good enough will for her.” The only evidence of undue influence is the declaration that she was not satisfied with the way Hall managed her property, and presumption of law arising from the confidential relation of Geo. W. Hall to testatrix, and the part taken by him and Green B. Jenkins, in having the will written, and in procuring its execution. In this matter, both testify that they simply obeyed her instructions. The attesting witnesses testify that she had the will read over to her in their presence, and that she expressed her entire satisfaction with it. Her attending physician swears her mind was good, and there were facts which show she was capable of making a will, and there is no witness who testifies otherwise as to her testamentary capacity, at the time of the execution of the will.
In view of all these facts, we are of opinion the case ought to be affirmed.