HARALSON, J.
1. There was no error in the actiou of the court in excusing the juror, Oswalt. It was entirely within the discretion of the court, — exercised not arbitrarily, but for good purpose in the interest of justice, — to do so. — Williamson v. Mayer, 117 Ala. 253; [33] Fariss v. State, 85 Ala. 1; The State v. Marshall, 8 Ala. 302.
Nor was there error in requiring the defendant to pass on the eight jurors remaining, after four had been ■challenged by plaintiff, before their vacancies were filled. — Wilson v. State, 31 Ala. 371; Bell v. Barker, 49 Ala. 284.
2. The defendant’s witness, Edmondson, had given •evidence of some contradictory statements made by plaintiff’s witness, Stone, and on his cross examination by plaintiff, he was asked, “When you get Frank Stone on the stand and lie swears to anything, would you or not believe him on oath?” The defendant objected to the question, “because the character of Mr. Stone was not in issue.” The court stated, it “would sustain the objection, and as a reason therefor, remarked in the presence of the jury, that Frank Stone’s testimony had not been impeached.” This remark was casual and to counsel, drawn out by his objection to the question propounded. Counsel for defendant, after consulting a law book, stated to the court that Stone’s character was in issue, and the question should be allowed to- be asked, and withdrawing his objection to it, it was allowed to be answered. The court, afterwards, also, at the request of the defendant, -charged the jury that “a witness may be impeached by contradictory statements made by him.” It thus appears that this remark, evidently intended for counsel alone, and not for the jury, and induced as it was by defendant’s objection to the question propounded, which objection was under consideration at the time, if erroneous as to the matter in hand, contained no reversible error, especially as a correction was fully and fairly made by the court. — Meinaka v. State, 55 Ala. 47; Campbell v. State, Ib. 80; Harrison v. State, 78 Ala. 11; Griffin v. State, 90 Ala. 596.
3. Dr. Lea had been examined by proponent touching a visit he made to testatrix some time before her death, and in reference to the effect the disease of the lungs called -consumption, — with which it was -shown testatrix •died, — has on the mind. He testified among other things that the effect of consumption was the wasting away of the lungs, leaving a smaller space for breathing, result[34] ing in a failure, to give proper oxygen to the blood, causing death from general emaciation of the whole body; but that the brain suffered less than any of the other organs, and the mind, with many patients, was clear up to the end; that he had discussed that fact with the principal doctors of Mobile, naming Drs. Ketchum, Thomas, Owens, Mastín and Goode, and they said such had been their experience. Thereupon, on the cross, contestant’s counsel asked the witness, “Do you know how many parts the brain is divided into,” to which question, the court sustained an objection by plaintiff. The question was apparently irrelevant. What the divisions of the brain had to do with what the witness had been deposing, does not appear. But, whether the question should have been 'allowed to be answered or not was a matter within the discretion of the court.
Nor was there error in allowing plaintiff to ask in rebuttal. “Who is Dr. Ketchum?” — and the other physicians mentioned by the witness, on his cross examination, as being among the principal physicians in Mobile. Having himself elicited from the witness the names of these physicians, and what they said, the defendant could not complain, that the witness was allowed to repeat for the plaintiff, what he had said about these physicians at the instance of defendant, — that each of them was one of the principal physicians in Mobile.
The questions propounded by defendant to the plaintiff on his cross examination, as to how much he had received from his father’s estate; how1 much either one of his brothers got out of said estate, and whát had been the occupation of plaintiff for the last twenty years, were irrelevant and entirely within the province of the court to disallow on the cross examination. — ’Huntsville B. & L. Co. v. Corpening, 97 Ala. 687; Strauss v. Meertief, 69 Ala. 299.
4. Mrs. O’Neal, examined by defendant, as to the death of testatrix, and who was present at the time, testified that when she and others arrived, they were met by plaintiff and his wife and were shown into the parlor by plaintiff, and were infoi’med by his wife, that testatrix was resting; that, plaintiff remained in the parlor about an hour and went out and remained 15 or [35]*3520 minutes, when he came bach and told her that his mother was gone. Contestant asked the witness “Did not you tell me, coming along over to the court house this morning, that you thought it was about 5 minutes that Wm. Schieffelin was out before he returned?” To this question plaintiff’s counsel objected, because illegal and irrevelánt, and because counsel for defendant could not prompt nor contradict his witness. The rule is well settled with us, that while a party may not contradict or impeach his own witness, he may, when put to disadvantage by, an unexpected answer, or for the purpose of refreshing the memory of the witness, ask him, though the question might have the incidental effect of impeaching the witness, whether, at a certain time and place, he has not made other statements inconsistent with testimony as just given. — White v. State, 87 Ala. 24; Thomas v. State, 117 Ala. 178. But, what bearing the question, whether plaintiff was out Of the parlor 15 or 20, or 5 minutes had on the issue •involved, we have been unable to conjecture, nor has any attempt been made by counsel to show the relevancy of the question. It appears to have been totally irrelevant.
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HARALSON, J.
1. There was no error in the actiou of the court in excusing the juror, Oswalt. It was entirely within the discretion of the court, — exercised not arbitrarily, but for good purpose in the interest of justice, — to do so. — Williamson v. Mayer, 117 Ala. 253; [33] Fariss v. State, 85 Ala. 1; The State v. Marshall, 8 Ala. 302.
Nor was there error in requiring the defendant to pass on the eight jurors remaining, after four had been ■challenged by plaintiff, before their vacancies were filled. — Wilson v. State, 31 Ala. 371; Bell v. Barker, 49 Ala. 284.
2. The defendant’s witness, Edmondson, had given •evidence of some contradictory statements made by plaintiff’s witness, Stone, and on his cross examination by plaintiff, he was asked, “When you get Frank Stone on the stand and lie swears to anything, would you or not believe him on oath?” The defendant objected to the question, “because the character of Mr. Stone was not in issue.” The court stated, it “would sustain the objection, and as a reason therefor, remarked in the presence of the jury, that Frank Stone’s testimony had not been impeached.” This remark was casual and to counsel, drawn out by his objection to the question propounded. Counsel for defendant, after consulting a law book, stated to the court that Stone’s character was in issue, and the question should be allowed to- be asked, and withdrawing his objection to it, it was allowed to be answered. The court, afterwards, also, at the request of the defendant, -charged the jury that “a witness may be impeached by contradictory statements made by him.” It thus appears that this remark, evidently intended for counsel alone, and not for the jury, and induced as it was by defendant’s objection to the question propounded, which objection was under consideration at the time, if erroneous as to the matter in hand, contained no reversible error, especially as a correction was fully and fairly made by the court. — Meinaka v. State, 55 Ala. 47; Campbell v. State, Ib. 80; Harrison v. State, 78 Ala. 11; Griffin v. State, 90 Ala. 596.
3. Dr. Lea had been examined by proponent touching a visit he made to testatrix some time before her death, and in reference to the effect the disease of the lungs called -consumption, — with which it was -shown testatrix •died, — has on the mind. He testified among other things that the effect of consumption was the wasting away of the lungs, leaving a smaller space for breathing, result[34] ing in a failure, to give proper oxygen to the blood, causing death from general emaciation of the whole body; but that the brain suffered less than any of the other organs, and the mind, with many patients, was clear up to the end; that he had discussed that fact with the principal doctors of Mobile, naming Drs. Ketchum, Thomas, Owens, Mastín and Goode, and they said such had been their experience. Thereupon, on the cross, contestant’s counsel asked the witness, “Do you know how many parts the brain is divided into,” to which question, the court sustained an objection by plaintiff. The question was apparently irrelevant. What the divisions of the brain had to do with what the witness had been deposing, does not appear. But, whether the question should have been 'allowed to be answered or not was a matter within the discretion of the court.
Nor was there error in allowing plaintiff to ask in rebuttal. “Who is Dr. Ketchum?” — and the other physicians mentioned by the witness, on his cross examination, as being among the principal physicians in Mobile. Having himself elicited from the witness the names of these physicians, and what they said, the defendant could not complain, that the witness was allowed to repeat for the plaintiff, what he had said about these physicians at the instance of defendant, — that each of them was one of the principal physicians in Mobile.
The questions propounded by defendant to the plaintiff on his cross examination, as to how much he had received from his father’s estate; how1 much either one of his brothers got out of said estate, and whát had been the occupation of plaintiff for the last twenty years, were irrelevant and entirely within the province of the court to disallow on the cross examination. — ’Huntsville B. & L. Co. v. Corpening, 97 Ala. 687; Strauss v. Meertief, 69 Ala. 299.
4. Mrs. O’Neal, examined by defendant, as to the death of testatrix, and who was present at the time, testified that when she and others arrived, they were met by plaintiff and his wife and were shown into the parlor by plaintiff, and were infoi’med by his wife, that testatrix was resting; that, plaintiff remained in the parlor about an hour and went out and remained 15 or [35]*3520 minutes, when he came bach and told her that his mother was gone. Contestant asked the witness “Did not you tell me, coming along over to the court house this morning, that you thought it was about 5 minutes that Wm. Schieffelin was out before he returned?” To this question plaintiff’s counsel objected, because illegal and irrevelánt, and because counsel for defendant could not prompt nor contradict his witness. The rule is well settled with us, that while a party may not contradict or impeach his own witness, he may, when put to disadvantage by, an unexpected answer, or for the purpose of refreshing the memory of the witness, ask him, though the question might have the incidental effect of impeaching the witness, whether, at a certain time and place, he has not made other statements inconsistent with testimony as just given. — White v. State, 87 Ala. 24; Thomas v. State, 117 Ala. 178. But, what bearing the question, whether plaintiff was out Of the parlor 15 or 20, or 5 minutes had on the issue •involved, we have been unable to conjecture, nor has any attempt been made by counsel to show the relevancy of the question. It appears to have been totally irrelevant.
5. The plaintiff objected to certain portions of the deposition of Mrs. Essie Schieffelin, when offered in evidence. She was the widow of Lee Schieffelin, a son of testatrix, and the mother of contestant, and deposed to having received a letter from testatrix about two weeks before her death, in which she stated that she was glad that witness had moved to Augusta; that she desired her to select a house as soon as practicable, not to exceed in cost $6,GOO; that she would send her the money with which to make the first payment, and would provide for payment of the balance. The plaintiff moved to exclude this part of said letter because the letter itself was the best evidence and should be produced or accounted for; because the witness did not attempt. to give its language, and' because it was immaterial and irrelevant. The witness testified that she had destroyed the letter, with others, because, as she stated, she did not think it was of any importance, and did not for a moment dream that 'anything of ibis kind [36] would arise. The objections to the evidence were not well taken. The witness gave the contents of the let- ■ ter, and the words employed, using the indirect instead of the direct form of speech, in doing so; it was shown to have been destroyed, and it was, certainly, material. The evidence was not subject to the objections interposed to it. In Coghill v. Kennedy, 119 Ala. 663, it was said, that as “the mental condition of a person can be determined only by his acts and declarations, these are admissible (on the issue of undue, influence) whether made a reasonable time before or after the execution of the will, to establish everything pertaining to the testator himself,- — his memory, intentions, idiosyncracies, prejudices, affections, relations with and feelings towards the -beneficiaries, and all those 'who, if he had died intestate, would have been entitled to share in the distribution of his estate, and towards those charged with the undue influence.” — Bunyard v. McElroy, 21 Ala. 311.
It is a general rule, that the declarations of a testator in respect to hi-s will and the objects of his bounty must not be so remote and disconnected with the act done as to 'she-d no light upon it, yet, evidence of the declarations of a testator made through a series of years tending to show his intention to leave his property to a contestant, are admissible. Authorities supra; Seale v. Chambliss, 35 Ala. 19; Hughes v. Hughes, 31 Ala. 519. The evidence of the contents of the letter just referred to and of other letters said to have been Avritten by testatrix to her son, Lee Schieffelin, the husband of the witness, Mrs. Essie Schieffelin, though remote in point of time from the execution of the will, was material in -connection with other evidence -of -a similar character, proximately connected with the transaction, and should not have been excluded.
6. It is well settled in this State, that the making of a mark i-s a sufficient signature to a will. — Bailey v. Bailey, 35 Ala. 690. And it is equally well settled, that an attorney who writes a will may attest the- same. — -, Mosser v. Mosser, 32 Ala. 551.
[37] 7. Charge No. 4 requested by plaintiff and given, is a copy of charge 2 in the case of Eastis v. Montgomery, 95 Ala. 480, which was there held to be good on the authority of the same case on another appeal (93 Ala. 293) and the authorities in the last case cited. Of course, the terms coercion, force or fear, when applied to undue influence and its results, are relative terms, owing to the character and* condition of the party at the time upon whom such influence was exerted, and wdiat would amount to such a degree of undue influence in one case, might not have the' same result in another. Strength of will, age, infirmity, loss of mental power,— not amounting to deprivation of testamentary capacity in the testator, — are elements entering into the consideration of every will contested on the ground of undue influence exercised over him in procuring him to make it different from what he otherwise would have done. — Burney v. Torrey, 100 Ala. 157; Knox v. Knox, 95 Ala. 495.
Charge 8 given for proponent is a copy of charge 18, approved in Knox v. Knox, supra.
Charge 29 given for proponent, is erroneous. The facts there hypothesized as to the condition of testatrix, not only do not indicate testamentary capacity, but show the want of it. We are unable to conceive of' testamentary capacity remaining after such incapacity as is here postulated, and we havé been cited to no case in this State, that sustains such a charge.. Incapacity to transact the ordinary business of life, cannot as is well settled, be made the standard of testamentary capacity. . We apprehend the court in an explanatory charge laid down the rule correctly, that if testatrix “at the time of the execution of the instrument, had mind and memory sufficient to understand the business she was engaged in, to remember the property she was about to bequeath, the objects of her bounty and the manner in which 'she wished, to dispose .of it, (she had testamentary capacity), and if at the time of executing said instrument, this test was lacking (she was without such capacity).” This is the standard declared in many of our decisions. — Taylor v. Kelly, 31 Ala. 59; Stubbs v. Houston, 33 Ala. 555; O’Donnell v. Rodiger, [38] 76 Ala. 223, 228; Kramer v. Weinert, 81 Ala. 416. The court had. instructed the jury that the burden was on the contestant to 'show mental incapacity. The explanation given of the charge by the court, did not cover ■the defects in the charge as asked, to relieve it of its injurious effects on the mind of the jury. If the charge was illegal, not simply misleading, it should have been refused; and no explanation or qualification of it, could make it good.- — Eiland v. Stale, 52 Ala. 323.
Charge 25 given for proponent .was bad. The evidence affords ample room for inference by the jury of undue influence exercised by proponent over testatrix to induce her to make the will, without reference to any actual importunity on proponent’s part to induce her to do so, and the facts tending to show this, should have been left to the jury.
Charge 27 was faulty. While the fact of the unequal disposition of her property, did not per se authorize the inference that testatrix was of unsound mind, and that her gifts were the result of fraud or undue influence, yet there was other evidence tending to show undue influence and mental incapacity, and this was competent to be considered, together with all the evidence in the cause, in determining these questions. — Burney v. Torrey, 100 Ala. 157, 169.
Charge 39 was also bad, in postulating that certain named facts afforded no presumption that the will was the result of undue influence, and that testatrix was of unsound mind when she made the will. The evidence afforded inferences both of undue influence and of mental incapacity, and.it was for the jury under all the evidence to determine these questions.
We find no reversible error in the other charges given at plaintiff’s-request. •
8. Charge 68 of defendant which was refused, is incomplete, and the court was justified in refusing it in the language in which it was written.
Charges 67 -and 70 a-skecl by defendant and refused, should have been given, as they assert correct propositions of law. -The only objection raised against them by the plaintiff for their proper refusal, is that they are substantial repetitions of other charges given for the [39] defendant, but this, on examination of those other charges, we find not to he so..
The 'other refused charges of defendant, were either argumentative, misleading or otherwise faulty.
For the errors indicated,' the decree of the probate court must be reversed and the cause remanded.
Reversed and remanded.