Bay, Judge,
delivered the opinion of the court.
This was a proceeding under our statute of wills to contest the validity of the will of Thomas R. Freeland, deceased. The petition alleges two grounds upon which the plaintiffs rely to set aside the will. First, that at the time of its execution said Freeland was not of sound and disposing mind. [417]*417Second, that the same was obtained by fraud and undue influence exercised upon the mind of said Freeland.
These allegations are traversed by the answer. Upon the trial of the cause, at the April term, 1861, of the Callaway Circuit Court, the jury found the issues for the defendants ; whereupon plaintiffs moved for a new trial, which motion was overruled, and the cause is brought here by writ of error.
It is insisted by the plaintiffs that the court below erred in allowing the defendants the opening and closing^of the testimony and argument. This point was made in Farrell v. Brennan et al., decided at the last March term of this court, and we held in that case that the onus was upon the party attacking the will, and that he was entitled to open and conclude; but as it was a question of practice, we would not reverse for error in the court below relating thereto, unless satisfied that the party had been materially prejudiced by the ruling of the court.
The next ground of error assigned is that the court refused permission to the plaintiff to read in evidence the deposition of William H. Russell, taken in behalf of the defendants, and by them filed in this cause. The offer to read this deposition was not made until after defendants had closed their case in rebuttal, and the court in the exercise of its discretion might have well refused upon this ground; but the reason assigned by the court, as appears from the bill of exceptions, was the omission of plaintiffs to notify defendants, before the trial, of their intention to use the deposition. While we are not disposed to question the action of the court with reference to the mode in which it exercised its discretion, stiíl we must be permitted to say that the reason assigned is both novel and untenable. We know of no law or practice which requires such notice to be given. A deposition taken by one party to a cause may be used by the other, notwithstanding it is not read by him at whose instance it was taken, for, after it is filed in the cause, the parties are equally entitled to the use of it. (Greene v. Chickering & McKay, 10 Mo. 109.) But the case in which such notice is required to be given is [418]*418where a party offers to read a deposition taken in a former suit between the same parties. In such a case, this court held, in Samuel v. Withers, 16 Mo. 541, that notice of its intended use should be given, or it should be filed anew in the suit, so that the party against whom it was intended to be read may have knowledge thereof. After reading the deposition of Russell, it is difficult to conceive for what purpose it was offered, unless it was to obtain, in anticipation of its exclusion, a technical ground for reversal, for there is nothing in the deposition which could, in the slightest degree, operate to the advantage of the plaintiffs; on the contrary, its tendency is to sustain the will. Russell was the uncle of the testator, and knew him from his infancy. In conversations had with him some years prior to his death, the testator expressed an intention to dispose of his property as the will pi’ovides, and Russell thus speaks of his mental condition at that time: “ I state, without the slightest qualification, that his mind seemed to be as clear and as capable of comprehending his business affairs as I had ever seen it at any time from its infancy. There was no excitement; nothing was evinced either in manner or expression that made the slightest impression on my mind that he was not just as capable of directing and disposing of his property as any man in the land.”
It is, therefore, very evident that the exclusion of this deposition in nowise px-ejudiced the plaintiffs.
The last ground of error is in reference to the giving and refusal of instructions; and to determine whether the court erred in this respect, it may be well enough to refer to the rule laid down in such cases for the guidance of the jury. In Harrison v. Rowan, 3 Wash. C. C., p. 585, Justice Washington, iix his charge to the jury, thus speaks of the requisite capacity to make a will:
“ He mixst, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with aix understanding of the nature of the business in which he is engaged; a recollection [419]*419of the property he means to dispose of; of the persons who are the objects of this bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed — the disposition of his property in its simple forms.”
Sergeant, J., in delivering the opinion of the Supreme Court of Pennsylvania, in Boyd v. Eley, 8 Watts, 66, says: “ The rule of law in regard to wills is, that the memory which the law holds to be a sound memory, is when the testator hath understanding to dispose of his estate with judgment and discretion, which is to be collected from his words, and actions, and behavior at the time.”
Lord Kenyon, in his address to the jury in Greenwood v. Greenwood, 3 Curteis, Appendix, remarks: “ I take it, a mind and memory competent to dispose of his (the testator’s) property, when it is a little explained, perhaps may stand thus: having that degree of recollection about him that would enable him to look about the property he had to dispose of. If he had a power of summoning up his mind so as to know what his property was, and who those persons were that were the objects of his bounty, then he was competent to make his will.”
Jarman, in his Treatise on Wills, vol. 1, p. 51, after referring to the leading cases upon this subject, comes to the conclusion that the question, in its most simple and intelligible form, should be thus stated: “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 his will ? ”
This, in our opinion, is the best form in which the question can be submitted to a jury; and when the jury shall have heard the opinions of witnesses who have observed the conversation, manner, and deportment of the person whose sanity is in question, but little difficulty will ai’ise in reaching a [420]*420just and correct conclusion. But if tlie court should undertake to enlighten the jury by instructing them with reference to the different phases of insanity, such as moral and intellectual mania, with the divisions and subdivisions adopted by writers on medical jurisprudence, it would only result in confusing their minds and leading them into a field of inquiry wholly unnecessary to an intelligible solution of the question before them. The court should, therefore, .submit the question in its most simple form, and avoid, as far as possible, any inquiry not bearing directly upon the issue made by the pleadings. The practice of giving instructions upon abstract propositions of law, in the absence of any testimony to which they can apply, is equally reprehensible.
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Bay, Judge,
delivered the opinion of the court.
This was a proceeding under our statute of wills to contest the validity of the will of Thomas R. Freeland, deceased. The petition alleges two grounds upon which the plaintiffs rely to set aside the will. First, that at the time of its execution said Freeland was not of sound and disposing mind. [417]*417Second, that the same was obtained by fraud and undue influence exercised upon the mind of said Freeland.
These allegations are traversed by the answer. Upon the trial of the cause, at the April term, 1861, of the Callaway Circuit Court, the jury found the issues for the defendants ; whereupon plaintiffs moved for a new trial, which motion was overruled, and the cause is brought here by writ of error.
It is insisted by the plaintiffs that the court below erred in allowing the defendants the opening and closing^of the testimony and argument. This point was made in Farrell v. Brennan et al., decided at the last March term of this court, and we held in that case that the onus was upon the party attacking the will, and that he was entitled to open and conclude; but as it was a question of practice, we would not reverse for error in the court below relating thereto, unless satisfied that the party had been materially prejudiced by the ruling of the court.
The next ground of error assigned is that the court refused permission to the plaintiff to read in evidence the deposition of William H. Russell, taken in behalf of the defendants, and by them filed in this cause. The offer to read this deposition was not made until after defendants had closed their case in rebuttal, and the court in the exercise of its discretion might have well refused upon this ground; but the reason assigned by the court, as appears from the bill of exceptions, was the omission of plaintiffs to notify defendants, before the trial, of their intention to use the deposition. While we are not disposed to question the action of the court with reference to the mode in which it exercised its discretion, stiíl we must be permitted to say that the reason assigned is both novel and untenable. We know of no law or practice which requires such notice to be given. A deposition taken by one party to a cause may be used by the other, notwithstanding it is not read by him at whose instance it was taken, for, after it is filed in the cause, the parties are equally entitled to the use of it. (Greene v. Chickering & McKay, 10 Mo. 109.) But the case in which such notice is required to be given is [418]*418where a party offers to read a deposition taken in a former suit between the same parties. In such a case, this court held, in Samuel v. Withers, 16 Mo. 541, that notice of its intended use should be given, or it should be filed anew in the suit, so that the party against whom it was intended to be read may have knowledge thereof. After reading the deposition of Russell, it is difficult to conceive for what purpose it was offered, unless it was to obtain, in anticipation of its exclusion, a technical ground for reversal, for there is nothing in the deposition which could, in the slightest degree, operate to the advantage of the plaintiffs; on the contrary, its tendency is to sustain the will. Russell was the uncle of the testator, and knew him from his infancy. In conversations had with him some years prior to his death, the testator expressed an intention to dispose of his property as the will pi’ovides, and Russell thus speaks of his mental condition at that time: “ I state, without the slightest qualification, that his mind seemed to be as clear and as capable of comprehending his business affairs as I had ever seen it at any time from its infancy. There was no excitement; nothing was evinced either in manner or expression that made the slightest impression on my mind that he was not just as capable of directing and disposing of his property as any man in the land.”
It is, therefore, very evident that the exclusion of this deposition in nowise px-ejudiced the plaintiffs.
The last ground of error is in reference to the giving and refusal of instructions; and to determine whether the court erred in this respect, it may be well enough to refer to the rule laid down in such cases for the guidance of the jury. In Harrison v. Rowan, 3 Wash. C. C., p. 585, Justice Washington, iix his charge to the jury, thus speaks of the requisite capacity to make a will:
“ He mixst, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with aix understanding of the nature of the business in which he is engaged; a recollection [419]*419of the property he means to dispose of; of the persons who are the objects of this bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed — the disposition of his property in its simple forms.”
Sergeant, J., in delivering the opinion of the Supreme Court of Pennsylvania, in Boyd v. Eley, 8 Watts, 66, says: “ The rule of law in regard to wills is, that the memory which the law holds to be a sound memory, is when the testator hath understanding to dispose of his estate with judgment and discretion, which is to be collected from his words, and actions, and behavior at the time.”
Lord Kenyon, in his address to the jury in Greenwood v. Greenwood, 3 Curteis, Appendix, remarks: “ I take it, a mind and memory competent to dispose of his (the testator’s) property, when it is a little explained, perhaps may stand thus: having that degree of recollection about him that would enable him to look about the property he had to dispose of. If he had a power of summoning up his mind so as to know what his property was, and who those persons were that were the objects of his bounty, then he was competent to make his will.”
Jarman, in his Treatise on Wills, vol. 1, p. 51, after referring to the leading cases upon this subject, comes to the conclusion that the question, in its most simple and intelligible form, should be thus stated: “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 his will ? ”
This, in our opinion, is the best form in which the question can be submitted to a jury; and when the jury shall have heard the opinions of witnesses who have observed the conversation, manner, and deportment of the person whose sanity is in question, but little difficulty will ai’ise in reaching a [420]*420just and correct conclusion. But if tlie court should undertake to enlighten the jury by instructing them with reference to the different phases of insanity, such as moral and intellectual mania, with the divisions and subdivisions adopted by writers on medical jurisprudence, it would only result in confusing their minds and leading them into a field of inquiry wholly unnecessary to an intelligible solution of the question before them. The court should, therefore, .submit the question in its most simple form, and avoid, as far as possible, any inquiry not bearing directly upon the issue made by the pleadings. The practice of giving instructions upon abstract propositions of law, in the absence of any testimony to which they can apply, is equally reprehensible. Thus, in the case under consideration, instructions were given with reference to undue influences exercised upon the mind of the testator; yet it is expressly stated in the bill of exceptions that no evidence was offered on either side tending to prove undue influence on the part of any person over the testator. Instructions upon the same subject were asked by plaintiff and refused, and such refusal, notwithstanding the said statement in the bill of exceptions, assigned in this court as error.
The court, upon its own motion, gave the following instruction upon the first issue :
“ The petitioners allege that the paper writing purporting to be the last will and testament of Thomas Freeland, in evidence before the jury, is not the last will and testament of the said Freeland, and defendants deny this.”
1. The court, upon this issue, directs the jury that if they find from the evidence that the deceased, Thomas Freeland, at the time of executing said paper writing in evidence before them, was of sound mind, they will find for the will; but if they find from the evidence that at the time of the execution of said will the said Thomas Freeland had not mind and memory sufficient to understand and comprehend the nature and character of the business he was engaged in, and the objects of the provisions contained in his will, the jury will find against the will.
[421]*4212. Mere weakness or imbecility of mind is not sufficient of itself to set aside a will; but the unsoundness of mind sufficient to invalidate a will should be of such degree as to render the testator for the time being incapable of understanding that he was engaged in making a disposition of his property, and of comprehending the nature and kind of his property, and the persons who were intended to be provided for by his will.
4. If the jury find that the testator was, at the time of the execution of said will, laboring under partial insanity — that is, that he was insane upon one or more subjects, and sane and rational on all others — this will not be sufficient to invalidate his will, unless the jury are satisfied that the will was the direct offspring and result of one or more of the delusions under which the testator was laboring.
5. If the jury find that the testator was, at the time of the execution of the will in evidence, laboring under moral insanity, or a perversion of the moral feelings, this cannot affect the validity of the will, unless the jury are satisfied that said moral insanity was accompanied by an insane delusion, and the will was the offspring of said delusion; and unless the jury find that the will was executed under undue influence, as set forth in the third instruction, or they find that the testator, at the time of the making of the will, had not mind and memory enough to know what he was doing, and the effect of the dispositions made by his will, as set forth in the first and third instructions, they will find a verdict for the will.
Defendants’ instructions:
1. The jury are bound to presume that Thomas R. Fi’eeland was of sound mind, and capable of disposing of his property by will at the time the will was executed, unless from the evidence in the cause they find that he was insane, and that said will was executed while in that condition.
The plaintiffs then asked the following instructions, to-wit:
5. If the jury find from the evidence that Thomas R. Freeland had not a sound and disposing mind and memory at the time of the execution of the will in controversy, they [422]*422must find against the will; and this they must determine from all the circumstances in the case.
6. Although unsoundness of mind or undue influence is not to be presumed, but must be proved, yet direct proof is not required to establish the same; but the jury may arrive at the conclusion that Thomas R. Freeland’s mind was unsound, or that he was unduly influenced in making his will, from the facts and circumstances in the case.
9. To sustain the will it is not sufficient that Thomas R. Freeland, at the time of its execution, had sufficient mind and memory to answer familiar questions, but he must have had a disposing mind and memory sufficient to enable him to comprehend and understand the character and amount of his property, and the persons or objects intended to be provided for by his will, and their relations to himself.
10. If the jury find from the evidence that Thomas R. Freeland, prior to the execution of the will, was insane, and incompetent to make a will, the law presumes such insanity and incompetency continued to the time of making the will, unless such insanity and incompetency were accidental and temporary in their nature; and, unless accidental and temporary, the defendants must show sanity and competency at the time of the execution of the will.
Those instructions, taken as a whole, present, in our opinion, the law of the case fairly to the jury. The jury were in effect called upon to say whether, at the time of the execution of the will, said Freeland had a sufficient mind and understanding to dispose of his estate with judgment and discretion. Several of plaintiffs’ refused instructions are unobjectionable, but they were substantially given in others. Upon the whole case, we see no siich error in the court below as will justify us in disturbing the verdict.
The other judges concurring,
the judgment will be affirmed.