Pennewill, C. J.,
charging the jury:
Gentlemen of the jury:—This is a case in which the validity of an alleged will is contested. The court has seen fit to direct an issue to be tried by a jury in order the better to determine the question they must decide.
The caveators, or contestants, are William H. Miller and John S. Miller, brothers of the testator, who oppose the probate of a certain paper writing as the will of their brother George Miller,, on the ground that at the time of the execution of said paper writing George Miller did not have testamentary capacity. They contend, generally, that he was at the time of unsound mind, and in particular, that he was then laboring under insane delusions-both with respect to his said two brothers, and also with respect to his niece Jennie, who is a daughter of William H. Miller, and the chief beneficiary under the alleged will.
We will not undertake to state the testimony. The alleged will, and certain other papers,, letters and legal instruments are [488]*488In evidence, marked as exhibits, and you will have them with you when you retire to your room.
All the other evidence, consisting of the testimony of many witnesses, you must remember as best you can, and we have no doubt your recollection will be good and true, because you have "been remarkably attentive during the progress of the case for several days.
George Miller, the testator, was never married. He was bom in New Castle County in the year 1836, and went to Cuba as a mechanic when a young man and remained there for several years. When he returned to this state he lived with his father and mother till they died, and later resided with his brother William H. for about nine years. He left there in August, 1886, and went to his brother John’s where he remained until he started for California in December, 1886. He began working as a mechanic at the Du Pont De Nemour Powder Mills about 1867, and continued to work there till a short time before he left for California. A day or two after he started West he attempted to commit suicide by cutting his throat with a knife, and jumping from a rapidly moving train on his journey. His brother John S. having received information of such occurrence went West and remained with his brother until he had sufficiently recovered to resume his journey to California. He remained in that state at the home of John Wendell Wood for about six months when he returned to this state, and stayed for a short time at the Clayton House in Wilmington. After that he resided with certain female relations until he returned to California in the latter part of January or the first part of February, 1888.
He executed his alleged will December 27, 1887, before he started for California the second time. After returning to California he lived with the said John Wendell Wood during most of the time until he was adjudged insane and committed to an insane asylum in September in the said state in the year 1890, where he remained continuously until his death on the third day of June, 1909.
The question that you are to determine in this case is whether the paper writing bearing date December 27, 1887, and purporting [489]*489to be the last will and testament of George Miller, deceased, is or is not his last will and testament.
[1] Under the law of this state any person of the age of twenty-one years or upwards, being of sound and disposing mind and memory, may make a will. 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 to the satisfaction of the jury by competent evidence rests on the party contesting the validity of the will, and the testimony must relate to the time of its execution.
Testamentary incapacity is not to be presumed, but must be satisfactorily shown to the jury by the preponderance or greater weight of the evidence in the case.
If, however, insanity is once clearly established, the burden shifts, and it devolves on those supporting the will to show, by testimony as strong as that required to establish insanity, that it did not exist at the time the will was made; the burden, however, does not shift until insanity is so established to your satisfaction by a preponderance of the evidence.
[2] In determining the question of testamentary capacity, that is, whether the testator was of somid mind, you must direct your minds to the precise time of the execution of the will. In cases like this courts have been liberal in admitting testimony as to the mental and physical condition of the testator, both before and after the time of the execution of the will; but such testimony is admitted only for the purpose of enlightening your minds, so that you may have the environments of his life, and be able to concentrate your judgment upon the critical moment, and to say in that concentrated light whether at the precise time of the making of the will he was of sound and disposing mind and memory. If he was, then it is a matter of indifference what may have been his condition at any other time. Ball, Guardian, v. Kane’s Executor, 1 Penn. 104, 39 Atl. 778.
In the case of Smith v. Smith's Admr. 2 Penn. 251, 45 Atl. 398, this court said: “The law gives a person the right to dispose of his property as he sees fit, and he alone is the judge of how he will dispose of it. You are not to consider whether it is such a [490]*490will as you would have made, or such a will as you think he ought to have made. If he was possessed of a sound and disposing mind and memory, it was his right to dispose of his property by will as he pleased, and with that disposition you have nothing whatever to do.”
There are many varying grades of mental capacity, ranging from weak to strong—from the lowest to the highest degree of intelligence.
Intellectual feebleness alone, or mere weakness of the understanding, whether this condition of the mind be natural or the result of injury, or of disease, does not disqualify a person from making a valid will. A partial failure of mind or memory, that is to say, even a failure of mind or memory to a considerable extent, from whatever cause, is not, in itself, 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 about, or 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 valid will. Arid hence the courts never undertake to measure the size, the degree, or the extent, of a man’s understanding or capacity; nor do they ever inquire into the wisdom, or the folly, of the dispositions which he may have made of his estate.
The question is not so much as to the degree of mind or memory possessed by the testator, as this: Had he sufficient mind and memory? Had he a disposing mind and memory? 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 mermay sufficiently sound to enable him to know, and understand, the business in which he was engaged, at the time when he executed his will? Jamison v. Jamison’s Will, 3 Houst. 108.
If the jury are of the opinion from the evidence that the testator was capable, at the time he executed his will, of exercising thought, and judgment and reflection—if he knew how he was disposing of his property,—what he was about, and had memory and judgment, his will cannot be invalidated. Chandler v. Ferris, 1 Harr. 454; Lodge v. Lodge’s Will, 2 Houst. 418.
[491]*491In the case of Sutton v. Sutton, 5 Harr. 461, Chief Justice Harrington instructed the jury that testable capacity on the part of the testator amounted to nothing more than a knowledge of what he was about, and how he was disposing of his property, and the purpose so to do it.
In considering and determining the question of capacity, the time when the will was executed is the material point to which the jury must look, to ascertain the state and condition of the testator’s mind. For, although he may have been incapable at any time before or after that period, yet, if he had sufficient capacity at the time when the will was executed, his prior or subsequent incapacity amounts to nothing and the will must stand.
[3] It is to the words, the conversations, the appearance, the acts and doings, the conduct and behavior of the testator we are to look to ascertain the state of his mind; they alone are to us the external, visible and natural signs, or indications, of his mental condition. And, therefore, in this case, as in all other cases of like nature, the question of capacity must be determined from the facts and circumstances disclosed and established by the evidence. In examining and weighing that evidence, you will carefully consider the character of the witnesses, for veracity and integrity—their bias and interest, on the one side, or on the other, if any—their intelligence and judgment, and their respective opportunities and powers of observation. And here it is but proper we should say to you that the law makes a distinction between the subscribing witnesses to the will and other witnesses. The subscribing witnesses being placed by the law around the testator, at the time of the execution of his will, for the special purpose, among others, of ascertaining and judging of his capacity, they are permitted to testify as to the opinion they formed at the time, of the condition of his mind—whether it was sound or unsound. And if they are persons of intelligence and veracity their opinions are entitled to great weight with the jury. Other witnesses may testify to his behavior, his conduct and conversations, his appearance, and to particular facts, tending to throw light on the state of his mind, and from which its condition can be fairly inferred, at the time he executed his will, but they can[492]*492not testify to their opinion, merely, of his capacity, without also stating the facts upon which that opinion is founded; and if the facts do not fully and clearly warrant that opinion, the opinion must go for nothing, for it is the fact, and not the opinion, upon which you must rely, 'in forming your judgment.
The testimony of medical men stands upon the same ground, except that, being more competent to form an opinion upon subjects of this kind, greater weight will in general be given to such opinions. Jamison v. Jamison’s Will, 3 Houst. 108.
Of course the value of the opinion of a subscribing witness, like other witnesses, depends upon the opportunity the witness had to observe and judge the testator’s mental condition and capacity at the time the will was executed, and upon his use of such opportunity. If it clearly appears from the testimony that he did not have, or having, did not use, his opportunity of observation, the special value of his opinion ceases, because the peculiar weight given by law to such testimony arises from the witness’ opportunity of observation and the probability of his using the opportunity on account of his participation in the transaction.
In the Kane Will case, the court said: “In determining the testator’s condition at the precise time of the making of the will, the jury should give to the testimony of the subscribing witnesses to the will such credit as their peculiar relations to and opportunities of knowing his condition just then, entitle them. The law places them there to speak to that point.”
In the case of Duffield v. Morris, 2 Harr. 375, the court charged the jury that“The paper itself (that is, the will) which was before the jury would afford important aid in determining the question of insanity. Are its dispositions in accordance with, or in opposition to, the previously expressed purposes and known affections of the testator? The internal evidence that it affords, with all the circumstances which surrounded it, may be fairly brought to bear on this question; remembering that whilst we are looking into the will itself for evidences of sanity or insanity, we are not to make a will for the testator ourselves, but to let his will be the reason for his act, unless something appear plainly inconsistent with sanity itself, or with his previously expressed and deeply fixed purposes.”.
[493]*493It is not denied that George Miller attempted to commit suicide in the manner shown by the testimony about a year before he made his will, and it is contended by the caveators that such act established the fact that the testator was insane at the time. And they further contend, that if insane at that time the law presumes that his insanity continued up to the making of the will, and that the will is therefore invalid, unless it is shown to your satisfaction that he was, at the time the will was made, of sound and disposing mind and memory.
This would be a sound proposition of law if an attempt to commit suicide established the fact of insanity.
Does it establish such fact, or does the law infer insanity from such an act?
Upon this point the court in the Duffield case said:
“The day after the execution of this paper, Dr. Morris committed suicide, and this introduces another important question as to what operation and weight this fact ought properly to have in determining the question of sanity or insanity at the time of making the will. This also is a question of fact for the jury, to be determined according to their own view of the nature of the act in general, and in reference to the particular case before them. * * * All the court had to say to them on the subject was that in our opinion the law draws no inference either of sanity or insanity from the fact of suicide itself alone. * * * The law makes no inference from it. It stands as a fact, together with all the other acts of the deceased’s life, together with his character, situation, habits, thoughts, purposes, principles and affections, so far as these are made known to the jury through the medium of the evidence, from which they are to determine whether the deceased, not merely at the time of committing suicide, but at the time of making his will, was of unsound mind.’’
In Koegel v. Egner, 54 N. J. Eq. 623, 35 Atl. 394, it was said by the court: “The fact that the testator’s mind was so affected as to cause him to attempt suicide, in which he was ultimately successful, is not inconsistent with testamentary capacity. It is in its very nature transitory, and the proof of the existence of an attempt at 'suicide, or of the act itself, by no means establishes [494]*494its existence at an antecedent or subsequent period of time. No presumption of fixed or lasting mental aberration arises upon such proof.”
[4] We therefore state this to be the law upon this point: Neither from an attempt at suicide, nor from the completed act, does the law draw any inference of insanity. The proof of such an attempt or act does not establish unsoundness of mind at an antecedent or subsequent period of time. It stands simply as a fact, together with all the other facts shown by the evidence, from which the jury are to determine whether the deceased, at the time of making his will, was of sound or unsound mind.
As we have already said the caveators contend that George Miller was before, and at the time, of making his will laboring under insane delusions with respect both to his said brothers and his niece, and that thfe will in question is, therefore, invalid..
This court, in the Duffield case to which we have referred, in speaking of delusions used the following language:
“A sound mind is one wholly free from delusion, all the intellectual faculties in a certain degree of vigor and harmony; the propensities, affections and passions being under the subordination of the judgment and will, the former being the controlling power, 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. * * * 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 how much judgment he can display, 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 degrees without making a man intestable” * * *
“An unsound mind is marked by delusion; it mingles ideas of i-maginatinn with those of sensation, and mistakes one for the other. It is often accompanied by an apparent insensibility to, or [495]*495perversion of, those feelings which belong to our nature. Insane delusions consist in the belief of facts which no rational person would have believed. It may sometimes exist on one or two particular subjects, although generally it is accompanied by eccentricity, irritability, violence, suspicion, exaggeration, inconsistency, and other marks and symptoms which may lead to confirm the existence of delusion, and to establish its insane character” * * *
“It is hard to define the invisible line that divides perfect and partial insanity. Each case must rest on its own circum- ■ stances. * * * And this doctrine of partial insanity is applicable to civil cases, if existing at the time of the act done; and will avail to defeat a will, the direct offspring of such partial insanity. But it has been held that a will cannot be set aside on the ground of monomania, unless there be the most decisive evidence, that at the time of making the will, the belief in the testator’s mind amounted to insane delusion.”
The court in the Duffield-Moms case said, in speaking of insane delusions: “This was the great question for the jury to try, whether the testator was the subject of such insane delusions, fancying things which did not exist, and could not exist, and which no reasonable mind could believe to exist; did this delusion (if any existed) continue up to the time of making his will, without intermission at that time, and to such an extent as to exclude thought, judgment and reflection, to deprive him of the power of rational conversation on the matter he was about, and of that kind of knowledge that would enable him to apprehend in his own mind that he was making a will, and the objects and purposes of such an act ? If he had this knowledge, memory and judgment, it is what the law means by a sound'and disposing mind and memory, which is sufficient to make the will valid, whatever may have been the state of the testator’s mind before or after.”
We think the law respecting delusions is well settled. It was very clearly and tersely expressed by the court when they said, in the Duffield case: “Partial insanity, meaning insane delusion, will avail to defeat a will which is the direct offspring of such partial insanity or insane delusion.”
[496]*496Such is the doctrine now recognized by the courts, not only of this state, but of this country and of England. It is no longer held that the mere existence of a delusion, at the time of the execution of the will, will invalidate the will; and the noted case of Warring v. Warring has been long since disregarded and overruled.
In Redfield on Wills, 79, cited by the caveators, it is said: “Where the testator is subject to delusions with regard to persons who would be the natural objects of his testamentary bounty, ■ his will made while he is under the influence of such delusions is invalid.”
And Theobold in his work on Wills, at 14, says: “When the delusion manifestly operated upon the disposition in the will, then the will must be declared void.”
In the case of Orchardson v. Cofield, 171 Ill. 14, 49 N. E. 197, 40 L. R. A. 256, 63 Am. St. Rep. 211, the court, repeating the language used in an earlier case ,said:
“Beyond all question it is within the previous rulings of other courts of the highest respectability that where there is insane delusion in regard to one who is an object of the testator’s bounty which causes him to make a will which he would not have made but for that delusion, such will cannot be sustained.”
In Re Segur’s Will, 71 Vt. 224, 44 Atl. 342, it was held: “If he has an insane delusion in respect to one of his children, or other natural objects of his bounty, and the instrument presented for probate is the product of such insane delusion, it is void because he has not the testamentary capacity the law requires.”
The same principle is recognized in other cases cited by thecaveators, including Shaw’s Will, 2 Redf. Sur. (N. Y.) 107, and Matter of Dorman, 5 Dem. Sur. (N. Y.) 112.
Such being the law, we say to you that the mere fact that a testator had delusions at the tipie he made his will is not sufficient in itself to invalidate the will.' To have such effect the jury must be satisfied that the will was the direct offspring or product of such delusion, was made under the influence thereof, or the delusion manifestly operated upon the disposition in the will.
[497]*497The rule is, that if the delusion was not such as to affect the testator’s knowledge, memory and understanding of the extent and nature of his estate, the proper objects of his bounty, and the nature of the testamentary act, he has capacity in law to make a will. In the particular case the inquiry should be: Did the testator, notwithstanding the delusion, have a sound and disposing mind and memory at the time he made his will? In the last analysis that is the question the jury must decide, and we have stated as clearly as we can the law that must control you in reaching such decision.
We cannot define or describe to you specifically the symptoms or evidences of insanity or insane delusions, and any attempt to-do so would probably confuse rather than assist you. All that we can say, and we think all we should say, is that you must determine from the facts disclosed by the evidence in the case whether George Miller was insane, or laboring under an insane delusion, at the time he made his will; and if you find that he was, you must then determine whether the insanity or delusion was such as would invalidate his will under the law as we have stated it.
[5] We may say that a lucid interval, as the term is used in speaking of lucid intervals of insane persons, is not merely a cessation of the violent symptoms of the disorder, but a restoration of the mind sufficiently to have a sound and disposing mind and testamentary capacity as we have defined it in the course of this charge. The evidence in support of a lucid interval, after derangement has been established, should be as strong and demonstrative of such fact as when the object of such proof is to show insanity.
Because of the importance of this case, we have given you at some length the principles of law respecting testamentary capacity, as declared by the courts of this state; and courts and juries,too, must be governed by that law in determining whether the testator had or had not, at the time he executed his will, testamentary capacity, that is, a sound and disposing mind and memory.
The law respecting testamentary capacity being so well settled in this state, there does not seem to be any necessity or rea[498]*498.son for resorting to authorities in other jurisdictions in order to determine whether George Miller was, or was not, of sound and disposing mind and memory at the time he executed his alleged will. The cases in other jurisdictions are almost innumerable, •but after all the general principles declared by the courts in the ■different states are substantially the same. Generally, the important and difficult thing is to apply such principles to the facts of the particular case.
Iff conclusion we will say that the question which you are now called upon to decide lies within a very narrow compass. It Is simply this, whether George Miller on the twenty-seventh day of December, 1887, the time when the will now in issue before you was executed by him, had sufficient mental capacity, that is, mind and memory, to make a valid will; and if you shall be satisfied from the evidence that the mind and memory of the testator at the time when he executed his will was not sufficiently sound to enable him to know and understand what he was about or what he was doing, your verdict should be against the will. But if, on the contrary, you should be satisfied from the evidence that the mind and memory of the testator, at the time he executed his will, was sufficiently sound to enable him to exercise thought, reflection and judgment and to know and understand what he was about, or what he was doing, then his will should stand, and your verdict should be in favor of its validity.
The jury found the paper writing to be the last will and testament of George Miller, deceased.