Graves, J.
Since our judgment in this case as reported in 21 Mich., 123, a second trial has been had, resulting in a verdict against the validity of the instrument propounded as the last will and testament of Thomas Patterson, deceased, and the cause is again brought here to obtain a revision of certain rulings upon that trial.
Several errors are assigned in the record, but only those1 will be noticed which were insisted on at the hearing.
The first point is upon the exclusion of a question put by proponents on cross-examination, to the witness Echardt. This witness had testified at much length relative to decedent’s malady, condition and conduct, and the intercourse between members of the McGinnis family and decedent. On cross-examination he referred to his being at decedent’s place, and there visiting with the widow of John McGinnis, and stated that he was at that time paying some attention to her. He afterwards, and before his examination, married [370]*370her. He also stated in the same connection'that he went from decedent’s place to that of Thomas McGinnis, and that the occasion of his leaving was some little trouble with Henry McGinnis. In answer to specific questions he further stated that he had some difficulty with Henry McGinnis, which was the occasion of his leaving Patterson’s.
He was then asked what this difficulty was about, and in support and explanation of the question it was stated by proponents’ counsel that they expected to show that the difficulty alluded to grew out of an alleged impropriety on the part of the witness and the widow McGinnis, and that it was expected to follow this up by showing that the witness was expelled from the place. Hpon objection the question was excluded. This ruling must be viewed in connection with the offer and explanation made by proponents’ counsel, and so regarded, it was not improper. The material circumstance for the jury to know, namely: that difficulty had arisen between the witness and a member of the McGinnis family, had been elicited, and it was pressing the privilege of cross-examination to questionable limits when it was proposed to trace the cause of the bad feeling to something improper in the association between the witness and the woman who had become his wife. It is quite impossible to avoid the opinion that something more was involved than evidence of bad feeling likely to cause bias in the witness. We do not intend to intimate that counsel meant to go beyond this, but it appears very clear to us that the question and explanation was mainly, if not exclusively, suited to fix a stain upon the character of the witness, if not upon that of his wife. There is much diversity of opinion respecting the latitude to be allowed in collateral inquiries of this kind, and some discretion certainly must be allowed to trial courts in permitting and refusing them. And when the refusal of such disparaging questions, not strictly relevant and material to the issue, is the subject of complaint, a court of review should hesitate to ' reverse unless the exclusion should appear to have [371]*371involved a manifest abuse of such discretionary power.— Bate v. Hill, 1 Car. & P., 100; Turnpike Co. v. Loomis, 32 N. Y., 127; La Beau v. The People, 34 N. Y., 223; Com. v. Jennings, 107 Mass., 488.
The next objection relates to the question permitted to be put to the witness Atwater by contestant, as to the reputation of the named executor, Fitz Simmons.
The object of this question was, not to impeach Fitz ■Simmons as a witness, but to show his general reputation bad, as a circumstance reflecting upon the capacity of Mr. Patterson, who, it was argued, would not, if in his right mind, have been likely to appoint such a person as his executor. It is true that the offer of this evidence was accompanied by a statement that contestant would show that Mr. Patterson, at the date of the will, knew that Fitz Simmons’ character was bad, and we do not discover any ■direct evidence in the record of that fact. But it was not necessary that Patterson’s knowledge of the character of Fitz Simmons should be proved by direct evidence, and there was enough in the general facts and circumstances, to justify an inference by the jury that Patterson possessed the knowledge. Evidence was given by others of the same •nature and tendency, and without objection or condition. We think the evidence was pertinent to the issue and admissible.
The fourth assignment of error is based on a question ■allowed to be put to Doctor Mottram, as to his opinion of Mr. Patterson’s capacity to plan and execute the paper propounded as a will. It is urged that the question, as understood by the witness, involved an incorrect test of capacity. But as the question appears in every substantial particular to correspond with one we considered admissible when the •case was formerly here, we do not think it needful to discuss its propriety.
The fifth assignment of error complains of the admission of the following question put to Doctor Mottram: “ Suppose Patterson had contemplated, before being taken sick, to give [372]*372to Mrs. Payne one hundred dollars,- and that when this clause of the will (referring to the clause giving her one hundred dollars) was read over to him on Friday forenoon he assented to that provision: what, in your opinion, was his capacity as to his giving an intelligent assent ?” The propriety of this question is not necessarily to be settled by considering it as a substantive and independent inquiry, and wholly disconnected from the precedent course of proceeding. In order to judge of its import and admissibility, it is reasonable to recur to the circumstances under which it was made. The Doctor had been subjected to a long and very minute examination respecting Mr. Patterson’s condition, and his opinion had been elicited upon groups of assumed facts which the evidence indicated. Carefully framed hypothetical questions had been put to him, and these, without being repeated in terms, were subsequently referred to as a basis for numerous additional inquiries,, bearing on the question of Mr. Patterson’s capacity. This course was wisely pursued to avoid needless prolixity. A long and critical cross-examination followed the same method, and assumed the particulars embodied in the last hypothetical question put on the direct examination, and the witness was then re-examined by contestant and asked this question: “These different stages of the disease in pleuro-pneumonia that you have spolcen of are simply stages which mark the progress of the inflammation, are they not?” The witness answered, “Yes sir.” It would seem that at this stage, as a matter of convenience, or for some reason not explained by the record, the witness was temporarily máde to leave the stand, but was soon afterwards placed upon it again in order that his examination might be-resumed and completed. On resumption of the examination after this temporary interruption, the question objected to was put to the witness. On looking at the course of' the examination, we think the question was fairly within legitimate limits as re-examination, and that the inquiry must have been understood as resting upon the hypothesis-[373]*373pointed at by the cross-examination, to which the re-examination related.
But aside from this view, it is not certain but that the Doctor’s personal knowledge of Mr. Patterson’s condition was sufficient to authorize him to answer this question, even if it were admitted to have been unconnected with assumed conditions of fact. — Beaubien v. Cicotte, 12 Mich., 459, 501.
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Graves, J.
Since our judgment in this case as reported in 21 Mich., 123, a second trial has been had, resulting in a verdict against the validity of the instrument propounded as the last will and testament of Thomas Patterson, deceased, and the cause is again brought here to obtain a revision of certain rulings upon that trial.
Several errors are assigned in the record, but only those1 will be noticed which were insisted on at the hearing.
The first point is upon the exclusion of a question put by proponents on cross-examination, to the witness Echardt. This witness had testified at much length relative to decedent’s malady, condition and conduct, and the intercourse between members of the McGinnis family and decedent. On cross-examination he referred to his being at decedent’s place, and there visiting with the widow of John McGinnis, and stated that he was at that time paying some attention to her. He afterwards, and before his examination, married [370]*370her. He also stated in the same connection'that he went from decedent’s place to that of Thomas McGinnis, and that the occasion of his leaving was some little trouble with Henry McGinnis. In answer to specific questions he further stated that he had some difficulty with Henry McGinnis, which was the occasion of his leaving Patterson’s.
He was then asked what this difficulty was about, and in support and explanation of the question it was stated by proponents’ counsel that they expected to show that the difficulty alluded to grew out of an alleged impropriety on the part of the witness and the widow McGinnis, and that it was expected to follow this up by showing that the witness was expelled from the place. Hpon objection the question was excluded. This ruling must be viewed in connection with the offer and explanation made by proponents’ counsel, and so regarded, it was not improper. The material circumstance for the jury to know, namely: that difficulty had arisen between the witness and a member of the McGinnis family, had been elicited, and it was pressing the privilege of cross-examination to questionable limits when it was proposed to trace the cause of the bad feeling to something improper in the association between the witness and the woman who had become his wife. It is quite impossible to avoid the opinion that something more was involved than evidence of bad feeling likely to cause bias in the witness. We do not intend to intimate that counsel meant to go beyond this, but it appears very clear to us that the question and explanation was mainly, if not exclusively, suited to fix a stain upon the character of the witness, if not upon that of his wife. There is much diversity of opinion respecting the latitude to be allowed in collateral inquiries of this kind, and some discretion certainly must be allowed to trial courts in permitting and refusing them. And when the refusal of such disparaging questions, not strictly relevant and material to the issue, is the subject of complaint, a court of review should hesitate to ' reverse unless the exclusion should appear to have [371]*371involved a manifest abuse of such discretionary power.— Bate v. Hill, 1 Car. & P., 100; Turnpike Co. v. Loomis, 32 N. Y., 127; La Beau v. The People, 34 N. Y., 223; Com. v. Jennings, 107 Mass., 488.
The next objection relates to the question permitted to be put to the witness Atwater by contestant, as to the reputation of the named executor, Fitz Simmons.
The object of this question was, not to impeach Fitz ■Simmons as a witness, but to show his general reputation bad, as a circumstance reflecting upon the capacity of Mr. Patterson, who, it was argued, would not, if in his right mind, have been likely to appoint such a person as his executor. It is true that the offer of this evidence was accompanied by a statement that contestant would show that Mr. Patterson, at the date of the will, knew that Fitz Simmons’ character was bad, and we do not discover any ■direct evidence in the record of that fact. But it was not necessary that Patterson’s knowledge of the character of Fitz Simmons should be proved by direct evidence, and there was enough in the general facts and circumstances, to justify an inference by the jury that Patterson possessed the knowledge. Evidence was given by others of the same •nature and tendency, and without objection or condition. We think the evidence was pertinent to the issue and admissible.
The fourth assignment of error is based on a question ■allowed to be put to Doctor Mottram, as to his opinion of Mr. Patterson’s capacity to plan and execute the paper propounded as a will. It is urged that the question, as understood by the witness, involved an incorrect test of capacity. But as the question appears in every substantial particular to correspond with one we considered admissible when the •case was formerly here, we do not think it needful to discuss its propriety.
The fifth assignment of error complains of the admission of the following question put to Doctor Mottram: “ Suppose Patterson had contemplated, before being taken sick, to give [372]*372to Mrs. Payne one hundred dollars,- and that when this clause of the will (referring to the clause giving her one hundred dollars) was read over to him on Friday forenoon he assented to that provision: what, in your opinion, was his capacity as to his giving an intelligent assent ?” The propriety of this question is not necessarily to be settled by considering it as a substantive and independent inquiry, and wholly disconnected from the precedent course of proceeding. In order to judge of its import and admissibility, it is reasonable to recur to the circumstances under which it was made. The Doctor had been subjected to a long and very minute examination respecting Mr. Patterson’s condition, and his opinion had been elicited upon groups of assumed facts which the evidence indicated. Carefully framed hypothetical questions had been put to him, and these, without being repeated in terms, were subsequently referred to as a basis for numerous additional inquiries,, bearing on the question of Mr. Patterson’s capacity. This course was wisely pursued to avoid needless prolixity. A long and critical cross-examination followed the same method, and assumed the particulars embodied in the last hypothetical question put on the direct examination, and the witness was then re-examined by contestant and asked this question: “These different stages of the disease in pleuro-pneumonia that you have spolcen of are simply stages which mark the progress of the inflammation, are they not?” The witness answered, “Yes sir.” It would seem that at this stage, as a matter of convenience, or for some reason not explained by the record, the witness was temporarily máde to leave the stand, but was soon afterwards placed upon it again in order that his examination might be-resumed and completed. On resumption of the examination after this temporary interruption, the question objected to was put to the witness. On looking at the course of' the examination, we think the question was fairly within legitimate limits as re-examination, and that the inquiry must have been understood as resting upon the hypothesis-[373]*373pointed at by the cross-examination, to which the re-examination related.
But aside from this view, it is not certain but that the Doctor’s personal knowledge of Mr. Patterson’s condition was sufficient to authorize him to answer this question, even if it were admitted to have been unconnected with assumed conditions of fact. — Beaubien v. Cicotte, 12 Mich., 459, 501.
The next point is made upon the exclusion of the question put by proponents to the witness Clark, who drew the paper propounded as a will. Mr. Clark had testified that about a year before he drew it, and on an occasion when Mr. Patterson and Thomas McGinnis were in his office, he made a memorandum respecting a land trade between them. He was then asked by proponents this question: “ Now will you state who, upon the day this will was made, first mentioned the subject of the land trade between Patterson and Tom. McGinnis?” and the witness replied, “Mr. Patterson called my attention to it.” This was followed by the question claimed to have been erroneously excluded. It was this: “Will you state what, if any, recollection you had upon the subject yourself?” This ruling was not objectionable. The question was not material. The witness had already shown that Mr. Patterson first referred to the matter, and was not indebted to any recollection Clark may possibly have had, and it was accordingly unimportant to ascertain whether or not Mr. Clark bore the subject in his memory.
The seventh assignment of error is grounded upon the refusal to charge according to proponents’ second request, which was in these terms: “If the jury should find that, upon the other testimony relating to the testator’s mental soundness, the evidence was balanced, the jury should permit the legal presumption of sanity to decide the question in the testator’s favor.”
There was no error in denying this request. When the question of capacity is actually controverted in case of a [374]*374paper propounded as a will, it devolves upon the proponents to establish capacity by other evidence than is afforded by the common-law presumption in favor of soundness of mind, and the measure of the evidence to establish must exceed that given in opposition.
Perhaps it would be going too far to say that the statute, in requiring substantive proof of the testator’s soundness of mind as a prerequisite to the establishment of the will, intended to put aside altogether and for all cases the common-law presumption in favor of sanity. But conceding the existence of the presumption as a principle to operate subject to circumstances, it is very clear that it cannot have the force of an independent fact to serve as a substantial make-weight against counter proof. Because if it could, the rule of law which casts upon proponents the necessity of showing the testator’s soundness of mind by other evidence might be subverted. The force and efficacy of the presumption will vary with cases, yet it can never have much influence when the issue upon the testator’s sanity is contested in the usual way, by an appeal to those facts which bear upon it. And whatever force may be due to it in given instances will be owing, not to its intrinsic weight as a distinct item of proof, but to its operation in some degree, more or less, in rendering the circumstances adduced to prove sanity more' persuasive.
Whenever the facts given in evidence are such as to leave room for it to have any appreciable influence upon results, it will be entitled to be viewed rather as a property of proponents’ proofs, than as something apart, and then it will not fail to be recognized by the good sense of the jury, in its tendency to strengthen the other evidence favoring sanity. The efficacy of the presumption, when it has any in contested issues, can never be predetermined, nor can any rule about it be safely laid down; and the experience and general knowledge of the triers may be trusted to consider and estimate it rightly whenever occasions make the inquiry needful. In the present case we are unable to see [375]*375how any mere presumption in favor of Mr. Patterson’S soundness of mind was entitled to much if any influence on the result. The court, however, charged that the law raised a presumption in favor of sanity, which the jury should consider, and the charge was, therefore, as favorable to proponents on this point, as any admissible view of the case authorized.
The fourteenth and sixteenth assignments of error are noticed together in proponents’ brief. They complain of the charge given in response to the seventeenth request of contestant, and of that given without request, respecting testamentary capacity, and the intent and free action essential to the validity of the will. The charge on this branch of the case is quite full, and it is substantially if not precisely the same which was given on the first trial. At the former hearing in this court we thought it was not- open to objection, and we see nothing to shake that opinion.
In the early part of the charge the judge advised the jury in the following terms: “No particular form of words is necessary to make a valid will. Words are used to express ideas and intent, and if the idea and intent may be gathered from the words, that is all that is necessary in this particular. The law does not require a testator, in order that he shall make a valid will, that he shall dictate the form and frame-work of the instrument; but the substance must be his, and he must declare it to be his last will. As to the signature, it is sufficient if it be by a cross or other mark by the testator as and for his signature.” The fifteenth assignment of error complains of the passage here which says, that the testator must declare the instrument to be his last will. It will be observed that this passage merely speaks of a declaration as necessary, without explaining in what way it would be admissible to make it. In a subsequent part of the charge the explanation is given in these terms: “As to the publication of the will, I advise you that no formal declaration is necessary. The statute in that particular is sufficiently complied with, if the testa[376]*376tor, by words or actions indicates that he intends the instrument as his will, and desires to have the witnesses attest it as such. The testator need not, in terms, request the witnesses to attest the will.”
These different portions of the charge were so naturally and intimately connected in sense that the jury must have understood the last as connected with, and explanatory of, the first, and so understood, the instruction, as a whole, was in substantial and almost literal compliance with the sixth and seventh requests which the proponents themselves preferred, and, therefore, if any error was committed, the proponents are not in a situation to complain of it. If the point was open to them, we should perhaps hesitate about accepting the doctrine of the charge as the law of this state. — Osborn v. Cook, 11 Cush., 532; Ela v. Edwards, 16 Gray, 91; Vincent v. The Bishop, 3 E. L. & E., 198; 15 Jur., 365.
The remaining objection relates to that portion of the charge which referred to natural justice. Whether those observations were needful to help the jury, is a matter of no moment. . We discover nothing in them in any way calculated to mislead the jury in point of law, or to warp the verdict.
Having examined all the points which plaintiffs in error thought of sufficient importance to merit discussion, and having discovered no error of which they can complain, we think the judgment should be affirmed, with costs.
The other Justices concurred.