Opinion,
Mr. Justice Green :
The record of the hospital for the insane contained an entry which indicated that the testator’s father was admitted in 1849 to the hospital, because of intemperance continued for six months, and that he was affected with melancholia resulting from intemperance. As there was no proof, and no offer of proof, that this species of melancholia is hereditary, we cannot see the relevancy of the record entry. It may be, or it may not be, that tills form of mental affection is transmissible by inheritance, but we cannot assume that it is, in the absence of proof, and therefore the jury would not have been justified in inferring it had the entry been admitted. The first and second assignments of error are not sustained.
The plaintiff’s fourth point was affirmed without qualification. The first clause of the point declared that there was no sufficient evidence of general insanity of the decedent, and the conclusion expressed in the second and last -clause, was, that therefore the burden of proof was on the defendants to show mental unsoundness at the very moment of execution. An unqualified affirmance of the whole point was a positive direction to the jury that the evidence was insufficient to show general insanity. In view of the large amount and serious character of the testimony given by the defendants, as to the testator’s mental condition shortly anterior to the making of the will, parti cularly during the summer of 1884, when he became an inmate of the insane asylum, we think it was going too far to say there was absolutely no evidence of a general insanity sufficient for the consideration of the jury. The answer should have been qualified so as to subject the testimony to tbe action of the jury, and that if it failed to satisfy them that there was a condition of general insanity at any time before tbe will was made, then the burden of proof as to the testator’s condition at the time of execution was on the defendants. We feel obliged to sustain the third assignment of error.
[590]*590The fourth assignment is not sustained, as it is certainly true that the unsoundness of mind or undue influence which will defeat a will, must have been operative at the time the will was executed.
We do not sustain the fifth assignment because we think the defendants’ first point is an overstatement of the essentials of testamentary capacity. It is certainly not the law that the testator must be capable of appreciating, and knowing, and remembering, and calling to mind the value and extent of his property at the time of executing his will. The language of the point is exceedingly broad. Literally it means that there must be an ability to remember and call to mind all the items of his property, and also to know and appreciate, as well as to remember, the value of each item or at least each subject of ownership, in order that the te.stator may reach the standard of the point. Persons having a large and diversified estate would be practically incapacitated from testacy, if so severe and exacting a standard as this were established. We question whether there is any improvement in the definition of testamentary capacity upon that given by Judge King in 1853 in the case of Leech v. Leech, 21 Pa. 69, to wit: “ A disposing mind and memory, in the view of the law, is one in which the testator is shown to have had, at the making and execution of a last will, a full and intelligent consciousness of the nature and effect of the act he was engaged in; a full knowledge of the property he possessed; an understanding of the disposition he wished to make of it by the will, and of the persons and objects he desired to participate in his bounty.” This description of testamentary capacity has been many times approved and never questioned. While modifications of it may be needed in particular cases to meet particular facts developed, it contains all the substance of a correct general definition, and may at all times be expounded to juries as a guide to them in their deliberations with entire safety.
The second point of the defendants should, we think, have been affirmed. We see no objection to its postulates just as they are stated. Nor is the point in any degree involved or obscure. It is drawn with much care, with clearness of expression, and with entire accuracy as to its legal truth. Thus, considering it in detail, it is certainly true that it requires less [591]*591undue influence and less fraud to procure a will unlawfully from a person of weak and impaired intellect, than from a person in full mental vigor. It is equally true that the jury, in determining the question of fraud and undue influence, may take into consideration the state and condition of mind of the testator- at the time of executing his will, the condition and relative situation of the testator and the plaintiff, the situations, surroundings, and condition of the testator himself, the nature and extent of his property, and all the circumstances under which the will was made, and the provisions of the will itself.
In illustration of the propriety of this point it cannot be overlooked that, while the plaintiff wa.s in fact the testator’s wife when the will was made, she was in all probability his mistress up to that time and for several years before. He so declared her to be in her presence and without contradiction from her, to the witness, James T. Thompson, and to the witness Broughton, he said she had been his mistress for thirteen years. In addition to this, the entirely uncontradicted evidence as to the manner in which they lived together, was highly persuasive, indeed quite convincing, that this was their true relation. The circumstances, both of the marriage and the will, were also of a very unusual and gravely important character as affecting the very question of undue influence. The marriage took place on November 18, 1884, the will giving all the property of the testator to the plaintiff was executed on November 15th, and on the 16th he died. At the time of the marriage he was confined to his bed, as he was also when the will was made, with the last and fatal sickness of which he died the next day. It was literally a death-bed marriage, and a death-bed will. That he was in an extremely enfeebled condition of body was the undisputed testimony of all.
That he was also extremely enfeebled in mind wras alleged by the defendants, and that allegation was supported by a great mass of entirely disinterested, and, much of it, highly intelligent, and some of it highly skilled testimony. A very great number of distinct acts, transactions, facts, declarations, and conversations done and uttered by the deceased, which were quite inconsistent with his mental soundness, were given in evidence, and might have been received and acted upon un[592]*592favorably to tbe will by any jury engaged in tbe trial of that question. The testator had made a will only a few months before, when he was certainly in a better condition both of mind and body, in which not a dollar of his estate was given to the plaintiff, a large part was given to a charity, and the remainder to relatives and friends. That will was the result of his personal dictation, and without doubt embodied his wishes with certainty. It is also a fact of importance that his estate was quite large, probably more than 1100,000 in value. It was a fact entirely undisputed that the testator had for many years indulged in the excessive use of alcoholic stimulants and in excessive venery. The plaintiff’s principal medical witness, Dr. Price, who attended him during his last illness and for some months before, was asked: “ Q. What induced you to think, the first you saw of him, that his disease was incurable? A. Simply from his history, a long life of drinking and debauchery.”
It is not necessary to review the testimony on this subject. It abounds with the usual disgusting details of a life of gross intemperance, profligacy, and sensuality. The results arrived in due time. In the summer of 1884 he was taken to St. Joseph’s Hospital for a time, and after that to Kirkbride’s Insane Asylum where he remained for several days. Dr. Jones, who was for many years in charge of the male department of that institution and saw him and treated him while there, testified, that he was in a state of dementia with delusions. When asked to explain what he meant by this he said: “ It is a state of great weakness of mind. It is the condition into which most insane patients ultimately sink, in which there is a loss of reason, intelligence, and a weakening in short of all the mental faculties.” This was from August 27th to September 2,1884, less than three months before his death.”
. The foregoing being a very brief mention of a part of the facts, either undisputed or very well supported by affirmative testimony, the matters of which the defendants’ second point was predicated brought them conspicuously and compactly together, and required their submission for the consideration of the jury. Thus, the point asked an instruction that the jury might take into consideration “ the state and condition of mind of the testator ” at the time of making the will, “ the [593]*593condition and relative situation of the testator and the plaintiff, the situations, surroundings, and conditions of the testator himself, the nature and extent of his property, all the circumstances under which the will was made and the provisions of the will itself.” Most certainly all of these matters were entirely, indeed, eminently, proper to be considered by the jury, in determining the question of undue influence.
The marriage was suggested by another and not by the testator ; it was contracted, and the will was made in the bouse of the sole beneficiary, as to whom the defendants bad a perfect right to argue, and ash for a finding, that she was the testator’s mistress up) to the moment she became bis wife. In the ease of Dean v. Negley, 41 Pa. 312, we held that the mere fact of the unlawful relation of mistress to a testator was enough to justify an inference of undue influence, and that fact, together with tbe fact of tbe devise to ber children, would bo enough to justify a verdict against the validity of the will. During the largest part, nearly all, of the period of the intimacy between the testator and the plaintiff, she was the wife of another man from whom she was separated, but not divorced. If there was unlawful intercourse between them it was adulterous, and comes directly within the terms of the decision in Dean v. Negley. Added to that was the fact, that by tbe terms of tbe will, made almost in tbe article of death, in her house, within her custody, and substantially in ber presence, drawn by a person who was at least a stranger to the testator, the whole estate of the testator was given to the plaintiff to the exclusion of all bis relatives and of the deserving charity, who bad been tbe sole objects of his bounty in Ms former will. This circumstance was considered of importance in tbe case of Rudy v. Ulrich, 69 Pa. 177, commenting upon Dean v. Negley. While in the present case the fact that a marriage had taken place prior to the will relieves the plaintiff from the most serious risks which she would have encountered under Dean v. Negley, it does not relieve the testamentary act from the imputation of a continuance and a present exertion of an undue influence, if tbe jury in view of all the facts of the case inclined to such a belief. But from tbis opportunity they were practically excluded by tbe refusal of tbe court to affirm tbe second pjoint of the defendants. We think the point should [594]*594have been affirmed just as it stood, and therefore sustain the sixth assignment of error.
In one sense the first of Mr. Ashhurst’s points is true, because it includes the idea that the testator, although previously incompetent, had become, and was, mentally capable at the time of executing the will, and regarded in that manner the point is certainly correct. Yet the point is so drawn that it might well mislead a judge into the supposition that its real meaning was, that if at an}*- one time in the testator’s previous life he had become temporarily incompetent, no matter how briefly, the whole burden of proving a subsequent recovery and a capacity at the time of execution rested upon the proponent. This is certainly not the law; and, because we would not reverse on the ground alone of this one refusal, we will not say there was error in refusing the point in the language in which it was framed. The seventh assignment is not sustained.
The eighth assignment is not sustained because while the point was abstractly true there are no facts in the case which make it applicable.
We cannot sustain the ninth assignment because the first two clauses of the point which it covers are too strongly stated, and the point was simply refused as an entirety. It is not legally true that one who has merely “ given indications of mental unsoundness ” is not at liberty to do what he likes with his own, or that in such case every sign of partiality or injustice must be viewed with strong suspicion. Persons may easily give “ indications of insanity without in reality being insane, and they cannot be charged with testamentary incapacity for so unsubstantial a reason as that. Dr. Ray’s report in Pidcock v. Potter, 68 Pa. 353, is not the opinion of the court.
We cannot sustain the tenth and eleventh assignments because the points which they cover are not sufficiently certain or specific to justify the affirmance of either. The change of character spoken of may be from bad to good, and certainly such a change cannot be regarded as indicating mental aberration of any kind.
The twelfth assignment is sustained because the point to which it refers is entirely correct and should have been affirmed just as it stood.
The point covered bj*- the thirteenth assignment is not a legal [595]*595proposition, nor is its deduction ail inference; oí law from the facts of which it is predicated. The law cannot know whether it would require very strong and satisfactory evidence to convince a jury that a man, conditioned as the testator was described by witnesses to be at the Pennsylvania Hospital, “could recover his senses sufficiently to make a will within a period oí less than eighty days.” The jury alone could know what their conception was as to Dr. Ruddach’s mental condition when at the hospital, and they only' could know how much and what kind of testimony could remove their impressions upon that subject at any particular time. We do not see what relevancy or legal propriety' there is in suggesting a period of eighty days as a possible limit within which a radical change of mental condition could not take place, when there was abundance of testimony as to what his actual condition was at the end of that period, and ample opportunity to deliver direct testimony on that subject. The idea of the point seems to be to substitute a theoretical inference as to what the testator’s condition ought to be, or might be expected to be, at a given time, for specific evidence as to what it actually was. Courts have nothing to do with declaring propositions such as this, and the point was properly refused.
The fourteenth assignment is of much more importance and we think it is sustained. Of course when the learned court below selected the testimony' of two witnesses on one side upon one subject, and read it at much length to the jury, it would naturally be inferred by the jury, that in the opinion of the court that testimony' was of controlling importance; and when there was an entire omission to read any of the evidence on the other side having a contrary tendency, they would naturally consider that in the opinion of the court such opposing testimony was of no efficacy and was not entitled to any consideration from them. If the testimony upon one side of a controverted question of fact is made prominent and conspicuous in the charge, common fairness requires that equal prominence should be given to opposing testimony having a contrary tendency. A careful reading of the charge impels us to say that we think it amenable to the criticism of this assignment. Though there was much statement and considerable argument, in the charge, of the testimony' favorable to the plaintiff, and [596]*596of the theories upon which her side of the case was submitted, we do not discover the least allusion to the great bulk of the defendants’ testimony, and only an allusion to the testimony of Dr. S. Preston Jones, who testified in the most emphatic manner, giving reasons which seem to be of grave importance and founded upon ample observations, for the conclusions which he reached and announced. But there was beside all this a great amount of testimony to specific acts, conversations, and declarations of the testator, indicating not merely a weak but a disordered mind, established by what seems to be entirely credible testimony, and to all or any of this there is not the slightest allusion in any part of the charge. There was considerable testimony that the testator was subject to delusions of an extraordinary and absurd character, but no reference to any of it was made in the charge. There was much testimony as to his excessive use and abuse of intoxicating liquors, and the effect thus produced both upon his mind and body. The only reference in the charge to this branch of the defendants’ testimony is the following: “That Dr. Kuddach was for years a man addicted to drink and lust is undoubted; but that fact alone would not necessarily incapacitate him from making a will. If all the people who drink liquor and are fond of women, are held to be incapable of making a will, I am afraid a great many people would die intestate.” That such a remark as this might be made with propriety in a case where the testimony showed nothing but an occasional indulgence in liquor or sexual intercourse, may not be questioned, but to dispose in this way of the entire mass of the testimony in this case, on these subjects, showing such a complete breaking down of the testator’s physical powers and a very serious impairment of the powers of his mind, was not in our opinion an adequate or a correct treatment of the testimony.
Edward Lynch, an attendant at Kirkbride’s, described his condition thus: “He was very peculiar; more so than any patient I had seen there. His mind was entirely gone; one time he admitted to me he had been a doctor, and that is the only thing I could get from him. He was incoherent, and he was full of delusion. I heard him say once that there had been men all around him going to shoot him — men all around his room — and he used to get very noisy in his talk. He ap[597]*597peared to have imaginary objects before him all the time.” Strawbridge, a watchman at the same place, said: “His talk was at times loud and incoherent; at times he acted more like a man frightened and in fear of something, seeming to shrink from some possible enemy, deprecating or apprehending some injury, and he would make such noises or exclamations as would indicate fear or dread.” After he left Kirkbridc’s in the latter part of September, 1884, he was staying at the Delaware Hotel. Hugh Jones, the proprietor, after describing some o£ bis peculiarities, said: “He required exercise, and be would sit there from morning to night in a chair taking no exercise, and I would say to him, ‘ Doctor, why don’t yon go out and take exercise?’ He said, ‘I am afraid; don’t you see tliose fellows watching me. The moment I go out they will arrest me.’ I tried to convince him there was no person there to disturb Mm, but I could not.” The same witness further testified: “ I recollect one day, he put his hand in his pantaloons pocket and pulled out I should judge from two dollars to four dollars in silver, but 1 do not know exactly the amount, and he said to me, ‘ Mr. Jones, this is all the money I have in the world. I must get something to do or I will starve.’ He was very much distressed. I tried to convince him it was a fallacy but I did not succeed.” Dr. S. Preston Jones, the physician in charge at Kirkbride’s, said: “ He was stupid and dull. I could get no responsive replies from Mm to my questions. He could not give me any account of his feelings, or tell me anything about liimself, who he was, where he was and so on..... I then observed him for the next two or three days more closely or quite closely, and became satisfied he was of unsound mind.” Plumley, another witness, testified after giving many other facts and particulars, as follows: “ Q. Toward the last, when he became weaker, was he harder to manage by Mrs. Dixon, or was he more easily managed by her ? A. He was easier managed. Q. Explain liow that was. A. All she would have to do would be to say to him when he wanted to do anything, ‘ Will, yon must not do that,’ and he would drop like a child. It made no difference what it was.” .....“ Q. Wliat did he say about wanting you to bury him, how would he express himself about it ? A. He said that he was poor — that he had nothing, that they had got every cent [598]*598of liis money, that they had got all he had and he wanted me to bury him.” This was when he was fast in bed shortly before his death.
These are a very few of the matters in evidence as to his mental and physical condition. Other delusions and other facts were shown tending to establish the effect of his habits of dissipation and debauchery upon his mind and body, and they were far too numerous in the aggregate, and of too serious a character, to be passed over with so slight a reference in the charge as heretofore stated. A large amount of expert testimony was given by physicians of experience, character, and ability, on behalf of the defendants. It was all disposed of in the charge by repeating a remark of Dr. Price, the plaintiff’s medical witness, that he had no doubt the defendants’ medical witnesses were competent to give an opinion if they had seen Dr. Ruddach, but given as it was, he did not think it worth a fig. Such a treatment of that testimony by the court in charging the jury would naturally lead the jury to treat it in the same way. The writer has read that testimony and feels obliged to say that it was entitled to a far more serious consideration. A long hypothetical question, embodying the facts in evidence, was propounded to the medical witnesses. All of them expressed the opinion that, upon the • facts stated in the question, Dr. Ruddach was of unsound mind with scarce a possibility of recovery at the time the will was made. Dr. Wood, one of these witnesses, being asked to state his reasons for his opinion said: “ In the first place the history is plain of a long continued and excessive abuse of alcohol and of venery —causes which lead to mental deterioration and may lead to absolute dementia, or loss of mental power..... The symptoms were in a word those of chronic alcoholic dementia at that time, and were clearly not those of acute alcoholic poisoning, or of delirium tremens. The history of thé case during the man’s stay in the Pennsylvania Hospital is clearly that of chronic alcoholic insanity with dementia. The history of the case so far as it is afforded after that time is, that during his stay in the hotel the characteristic symptoms of alcoholic dementia were present and those of delirium tremens certainly not at all. Such a state I believe could scarcely be recovered from, even if it had lasted but for a few days. Having, how[599]*599ever, lasted for a succession of weeks and the man dying a few mouths afterwards, or a short time afterwards, it is almost impossible there should be a recovery witli mental capacity.”
Some idea of the extent of the testator's habit of drinking is conveyed by the testimony of one of the saloon keepers. He was asked: “ Q. During the last year of his life how frequently do you suppose he would take drinks at your place a day? A. I could safely say twenty. Q. Do you mean to say that he would average twenty a day? A. Yes, and I guess a great many more than that. 1 am positive of twenty. Q. What kind of liquors did he drink? A. Whiskey and champagne. Q. Was he in the habit towards the latter part of the time of getting whiskey at your place for nights? A. Yes, sir; he always used to take a small flask home with him on a night, saying that he couldn't sleep without it. Q. What would he put in it? A. Whiskey.” When it is considered that this was only one of the places he visited, it is not difficult to understand the effects which resulted upon the testator’s mental and physical condition.
We have made these few references to the testimony simply to illustrate what seems to us the incomplete character of the charge of the court in dealing with the case. In Burke v. Maxwell, 81 Pa. 139, the present Chief Justice in delivering the opinion said: “ When there is sufficient evidence upon a given point to go to the jury, it is the duty of the judge to submit it calmly and impartially. And if the expression of an opinion upon such evidence becomes a matter of duty, under the circumstances of the particular case, great care should be exercised that such expression should be so given as not to mislead, and especially, that it should not be one sided. The evidence, if stated at all, should be stated accurately, as well that which makes in favor of a party as that which makes against him.” In the case of McTaggart v. Thompson, 14 Pa. 149, we said: “ In addition, the defendants have just reason to complain of the one-sided character of the charge. It is objectionable because it resembles the argument of the advocate, rather than the impartial survey of the judge.” In Penna. Canal Co. v. Harris, 101 Pa. 80, we said: “The main complaint is that the case was not justly and fairly submitted to the jury; that the evidence and theory of the defendant were [600]*600fully and prominently presented, and the strength of the plaintiff’s case was so presented as not to call their attention to the main points in the plaintiff’s case..... It is error to confine the attention of the 'jury to one view of the case, where there is more than one which they should consider.” After referring to some of the testimony given by the plaintiff the opinion proceeds: “ If this evidence be correct it should be submitted to the jury as having great force, yet the evidence was incidentally referred to by the judge, and in a manner not calculated to induce them to give it a proper consideration.” We have so frequently held that giving undue prominence to the testimony on one side of a case is error, that a reference to the cases is unnecessary. The fourteenth and fifteenth assignments are sustained.
, We are not referred to any testimony proving that no proceedings in lunacy were commenced against the testator in his lifetime, and we do not know whether such was the fact or not. This being the case, we think there was no propriety in the remarks of the learned court upon that subject, winding up with this statement in regard to the contestants: “ Their anxiety about the safety of his (testator’s) property and their concern as to the state of his mind seem to have commenced after his death.” Such a remark would naturally tend to create a prejudice in the minds of the jury against the defendants, and for that reason it is out of place in a charge. Even if there had been proof that no proceedings in lunacy were commenced against the testator in his lifetime, we do not think that circumstance would be of any weight in view of the facts of this case. It is true that in Irwin v. West, 81* Pa. 157, it was held that the omission to commence such proceedings might have some weight to be considered by the jury, but that was said with reference to the facts of that case. In the present case the testator had no near relatives — no parents, no children, or lineal descendants — and nearly all of such relatives as he had lived out of the state. His nearest relative in Pennsylvania, W. A. Ruddach, a cousin living at Norristown, said he did not have knowledge of a proceeding in lunacy, but that he thought there was such a commission; he had heard so but could not tell when. As the testator was neither an idiot nor a lunatic, and the worst effects of his mode of life did not be[601]*601come so very serious until shortly before his death, we do not see that the omission to commence proceedings was of any weight whatever as against the good faith of the present contest over his will, and in any other point of view such omission was not a proper subject of remark. We, therefore, sustain the sixteenth assignment of error.
As to the seventeenth and eighteenth assignments, we think it altogether likely that the learned judge did not mean to convey the idea that proof of incompetency or undue influence must be positive as distinguished from circumstantial, in the character of the testimony offered, but nevertheless be did so charge in literal terms, and of course it was error. There is no rule of law that allegations of mental unsoundness or undue influence in feigned issues on wills must be established by positive evidence, and hence to say tbat it must, in a charge to a jury, tends to give the jury an erroneous idea of the quality or character of proof required. We are, therefore, obliged to sustain these assignments.
We do not think the nineteenth assignment is of any material consequence and, therefore, do not sustain it. The words, “ overwhelmingly established,” in the charge in relation to Mrs. Dixon’s conduct towards the testator are, perhaps, too strongly stated, in view of some of the evidence, but tbe whole subject is one of very minor consequence, and we would not feel at liberty to reverse on tbat ground.
Judgment reversed and a new venire awarded.