Opinion by
Mr. Justice Mitchell,
The third assignment of error must be sustained. The learned judge charged the jury that it was “ necessary that a testator at the time he makes and executes his will should be possessed of a sound mind. . . A sound mind has been defined to be a mind wholly free from delusion.” This was a serious overstatement of the requirements as to testamentary capacity in a case where as in the present the will was contested mainly on the ground of delusions or hallucinations on the part of testatrix. It is settled that the existence of delusions will not destroy testamentary capacity unless they are such as dictate or substantially affect the provisions of the will itself: Taylor v. Trich, 165 Pa. 586, 601, 602; Thomas v. Carter, 170 Pa. 272. In the latter case the following statement of the law was approved by the present Chief Justice: “A man may be of sound mind in regard to his dealings in general, but he may be under an insane delusion, and wheneArer it appears that the will was the direct offspring of the partial insanity or monomania under which the testator [61]*61was laboring at the very time the will was made, that it was the moving cause of the disposition, and if it had not existed the will would have been different, it ought to be considered no will, although the general capacity of the testator may be unimpeached.”
It is true that later in the charge the jury were told that “ a person whose mind is perverted by insane delusion with reference to one or many subjects, however unreasonable and absurd, may nevertheless» make a valid will, provided the provisions of such will are not influenced by such delusion,” but the subject was committed to them in this general way, without any special reference or caution as to the nature of the delusions testified to. Under the circumstances this was not an adequate presentation of the case, and was not sufficient to counteract the unfortunate overstatement as to testamentary capacity which had gone before. Much testimony was undoubtedly given to show that the testatrix labored under delusions in regard to the presence of strange people in her house and climbing over the fence and up the walls. But none of these appears ever to have led to any action on her part, except occasionally getting her family up at night to look for fancied intruders, an occurrence not entirely unknown among nervous women who are nevertheless entirely sane. None of these delusions had any .tendency as matter of law, or were shown as matter of fact, to have had any bearing at all on the question of testamentary capacity or on the circumstances of the making of this will, and the jury should have been explicitly so told in answer to the plaintiff’s ninth point. Failing this we cannot consider that the error complained of in the third assignment was cured by the subsequent parts of the charge.
The delusions, even if they existed as testified to, being thus irrelevant, was there, outside of them, any sufficient evidence of want of testamentary capacity ? We do not think so. The facts established beyond question were that the testatrix was a woman of intelligence, business capacity and experience, having acquired a considerable estate by her own exertions in store-keeping ; she was advanced in years but retained her position as the head of her house, though she depended to some extent on the assistance of her daughter, the contestant, who lived [62]*62with her; she gave directions for her will to her son, through whom it was drawn by counsel, submitted to her and altered somewhat by her in contestant’s favor, rewritten by counsel, read by him to her in private in his own office, declared to be what she wanted, and executed by her in the presence of two reputable and entirely disinterested business acquaintances who were specially called in as witnesses. She lived five years after that, keeping her own bank account, drawing checks, collecting dividends on her stock, receiving rent from her tenant and his wife, paying the milkman and the watchman who came to her house, and from time to time making purchases at market and in stores, though usually accompanied in these outdoor transactions by her daughter, and in 1889, two years after the making of the will, joined in a conveyance of a valuable piece of real estate, and during all this time no one raised any question of her capacity, although the contestant with others of the family was a party to the deed by which the property was conveyed to the trust company, and the president of the latter had known her for years and had no hesitation in taking title from her.
Against this array of actual business transacted there was the testimony of a number of witnesses as to the testatrix’s loss of memory, her failure to recognize persons, including in one or two instances her owp daughter, her inability to make correct change, and her offers to some of them to pay a second time after having paid previously. The witnesses were mostly neighbors and acquaintances who did not have business transactions with her, and the things they testified to, apart from the delusions, showed little else than the ordinary forgetfulness of age, chiefly of names and faces, and not shown to extend to serious matters or business. These witnesses were allowed to give their opinions that testatrix was not fit to make a will, without Laving shown the slightest knowledge of what testamentary capacity requires. As to them the remarks of Paxson, J., in Eddey’s Appeal, 109 Pa. 406, 420, are entirely appropriate; “ the opinions of many of them may be brushed aside as wholly worthless by reason of their lack of knowledge and judgment in such matters. A witness must know what testamentary capacity means before we can attach any weight to his testimony.” The most important witness against the will was the family [63]*63physician, who testified that testatrix had had an attack of acute congestion of the brain with slight paralysis, and that in 1887, the date of the will, “ her case had developed into what Ave call senile dementia,” the evidences of which he said were “ impaired memory; depression of spirits; melancholy at times; feeble mind,” and “ her condition was bad; she had hallucinations.” This testimony was undoubtedly entitled to weight, but, as already said, the hallucinations which medically were a large part of the dementia, were entirely irrelevant on the question of testamentary capacity, and the doctor neutralized much of the force of his testimony by the frank admission that he knew nothing at all about her business affairs, nor what she did in that way for several years after the date of the will. As to her failure of memory, the weightiest matter testified to was her not recognizing on one or two occasions her youngest daughter, but the will itself conclusively proves that this was not the lasting state of her mind, as that daughter is named and given a share of the estate with the clear explanation that it is less than the other shares “ because she is well provided for in life, and has received moneys through other sources in my lifetime.” It was not shown that the testatrix’s memory was in fault as to this or any other material fact relevant to her estate, and her will in regard to its distribution.
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Opinion by
Mr. Justice Mitchell,
The third assignment of error must be sustained. The learned judge charged the jury that it was “ necessary that a testator at the time he makes and executes his will should be possessed of a sound mind. . . A sound mind has been defined to be a mind wholly free from delusion.” This was a serious overstatement of the requirements as to testamentary capacity in a case where as in the present the will was contested mainly on the ground of delusions or hallucinations on the part of testatrix. It is settled that the existence of delusions will not destroy testamentary capacity unless they are such as dictate or substantially affect the provisions of the will itself: Taylor v. Trich, 165 Pa. 586, 601, 602; Thomas v. Carter, 170 Pa. 272. In the latter case the following statement of the law was approved by the present Chief Justice: “A man may be of sound mind in regard to his dealings in general, but he may be under an insane delusion, and wheneArer it appears that the will was the direct offspring of the partial insanity or monomania under which the testator [61]*61was laboring at the very time the will was made, that it was the moving cause of the disposition, and if it had not existed the will would have been different, it ought to be considered no will, although the general capacity of the testator may be unimpeached.”
It is true that later in the charge the jury were told that “ a person whose mind is perverted by insane delusion with reference to one or many subjects, however unreasonable and absurd, may nevertheless» make a valid will, provided the provisions of such will are not influenced by such delusion,” but the subject was committed to them in this general way, without any special reference or caution as to the nature of the delusions testified to. Under the circumstances this was not an adequate presentation of the case, and was not sufficient to counteract the unfortunate overstatement as to testamentary capacity which had gone before. Much testimony was undoubtedly given to show that the testatrix labored under delusions in regard to the presence of strange people in her house and climbing over the fence and up the walls. But none of these appears ever to have led to any action on her part, except occasionally getting her family up at night to look for fancied intruders, an occurrence not entirely unknown among nervous women who are nevertheless entirely sane. None of these delusions had any .tendency as matter of law, or were shown as matter of fact, to have had any bearing at all on the question of testamentary capacity or on the circumstances of the making of this will, and the jury should have been explicitly so told in answer to the plaintiff’s ninth point. Failing this we cannot consider that the error complained of in the third assignment was cured by the subsequent parts of the charge.
The delusions, even if they existed as testified to, being thus irrelevant, was there, outside of them, any sufficient evidence of want of testamentary capacity ? We do not think so. The facts established beyond question were that the testatrix was a woman of intelligence, business capacity and experience, having acquired a considerable estate by her own exertions in store-keeping ; she was advanced in years but retained her position as the head of her house, though she depended to some extent on the assistance of her daughter, the contestant, who lived [62]*62with her; she gave directions for her will to her son, through whom it was drawn by counsel, submitted to her and altered somewhat by her in contestant’s favor, rewritten by counsel, read by him to her in private in his own office, declared to be what she wanted, and executed by her in the presence of two reputable and entirely disinterested business acquaintances who were specially called in as witnesses. She lived five years after that, keeping her own bank account, drawing checks, collecting dividends on her stock, receiving rent from her tenant and his wife, paying the milkman and the watchman who came to her house, and from time to time making purchases at market and in stores, though usually accompanied in these outdoor transactions by her daughter, and in 1889, two years after the making of the will, joined in a conveyance of a valuable piece of real estate, and during all this time no one raised any question of her capacity, although the contestant with others of the family was a party to the deed by which the property was conveyed to the trust company, and the president of the latter had known her for years and had no hesitation in taking title from her.
Against this array of actual business transacted there was the testimony of a number of witnesses as to the testatrix’s loss of memory, her failure to recognize persons, including in one or two instances her owp daughter, her inability to make correct change, and her offers to some of them to pay a second time after having paid previously. The witnesses were mostly neighbors and acquaintances who did not have business transactions with her, and the things they testified to, apart from the delusions, showed little else than the ordinary forgetfulness of age, chiefly of names and faces, and not shown to extend to serious matters or business. These witnesses were allowed to give their opinions that testatrix was not fit to make a will, without Laving shown the slightest knowledge of what testamentary capacity requires. As to them the remarks of Paxson, J., in Eddey’s Appeal, 109 Pa. 406, 420, are entirely appropriate; “ the opinions of many of them may be brushed aside as wholly worthless by reason of their lack of knowledge and judgment in such matters. A witness must know what testamentary capacity means before we can attach any weight to his testimony.” The most important witness against the will was the family [63]*63physician, who testified that testatrix had had an attack of acute congestion of the brain with slight paralysis, and that in 1887, the date of the will, “ her case had developed into what Ave call senile dementia,” the evidences of which he said were “ impaired memory; depression of spirits; melancholy at times; feeble mind,” and “ her condition was bad; she had hallucinations.” This testimony was undoubtedly entitled to weight, but, as already said, the hallucinations which medically were a large part of the dementia, were entirely irrelevant on the question of testamentary capacity, and the doctor neutralized much of the force of his testimony by the frank admission that he knew nothing at all about her business affairs, nor what she did in that way for several years after the date of the will. As to her failure of memory, the weightiest matter testified to was her not recognizing on one or two occasions her youngest daughter, but the will itself conclusively proves that this was not the lasting state of her mind, as that daughter is named and given a share of the estate with the clear explanation that it is less than the other shares “ because she is well provided for in life, and has received moneys through other sources in my lifetime.” It was not shown that the testatrix’s memory was in fault as to this or any other material fact relevant to her estate, and her will in regard to its distribution.
Upon the whole case we have first, delusions showing impairment of mind in some directions, but not in any way relevant to the making of a will; failure of memory as to persons, places and recent small occurrences, but not shown to extend to a single serious matter; and the opinions of a number of witnesses, most of them unlearned on the subject, that the testatrix was unfit to make a Avill; and secondly, on the other side, a will drawn by counsel and executed in the presence of business friends called in for that purpose, with no evidence at all of want of testamentary capacity at the time of execution, and the will itself containing clear internal evidence of recognition of her estate, and of all the persons who may be said to be the natural objects of her bounty, and finally the continued transaction of important business for five years after the malting of the will, Avith no suggestion from any one that she was not capable of attending to it. In the face of these actual transactions the opinions of Avitnesses are of very little weight.
[64]*64Under such circumstances and on such testimony a jury cannot be allowed to overturn a will.
The verdict should have been directed for the plaintiffs.
Judgment reversed and issue directed to be set aside. Costs to be paid by appellee..