A. J. WALKEN, C. J.—Upon
the question of the onus of proof as to testamentary capacity, the authorities are conflicting: many of them holding, that it is for the proponent of a will to prove the sanity of the testator, [563]*563(Dunlap v. Robinson, 28 Ala. 100; Wallis v. Hodgson, 2 Atk. 55; Powell on Devises, 82; Gerrish v. Nason, 22 Maine, 438; Potts v. House, 6 Geo. 324; Harris v. Ingledew, 3 P. Wms. 93; Brooks v. Barrett, 7 Pick. 94; Comstock v. Hadlyme, 8 Conn. 26;) while many others hold, that the presumption of sanity applies as well to probate as other cases.—Saxon v. Whitaker, 30 Ala. 237; Pettes v. Bingham, 10 N. H. 514; Jackson v. Van Dusen, 5 Johns. 144; Rogers’ Ecclesiastical Law, 900 ; Groom & Evans v. Thomas & Thomas, 2 Hagg. 433; Burrows v. Burrows, 1 Hagg. 109; 1 Jar. on Wills, 74, and note; 2 Greenleaf on Ev. 689; Sloan v. Maxwell, 2 Green’s Ch. 580; 1 Williams on Ex. 18; Lessee of Hoge v. Fisher, 1 Pet. C. C. R. 163.
The prima-facie intendment in favor of testamentary capacity, when an issue for the contestation of a will is made up, is consistent with the presumption, generally made, that men are sane ; and is required by the principle enunciated in the recent decision of this court in Saxon v. Whitaker, supra; and is the only rule which can harmonize with the law allowing the admission of a will to probate upon proof of handwriting, when the attesting witnesses are dead, insane, or out of the State, or have became incompetent since the attestation. We decide, therefore, that it was not incumbent upon the proponent to affirm the testator’s sanity in making up the issue; and that there was error in the instruction to the jury, that the onus of proof as to the question of sanity was upon the proponent.
[2.] The testimony as to the execution of the trust deed to Brantley, with the attending circumstances, and the fact of the testator’s seeking a rescission of his contract of sale, and employing the agency of a trustee to procure it, (whether remote or immediate, it is not for us to decide,) had a bearing upon the question of the testator’s capacity and susceptibility of influence from others. That testimony, and the reciprocal instruments executed by the testator and his brother at the time, were, therefore, admissible.
[3.] A legitimate inquiry in the contest of a will upon [564]*564the ground of undue influence and insanity, is whether the will is natural. To that inquiry, the pecuniary condition of the testator’s nephews, who would have been distributees of his estate in case of intestacy, was pertinent ; and the evidence upon that subject was admissible. Roberts v. Trawick, 13 Ala. 68; Coleman v. Robertson, 17 Ala. 84; Gilbert v. Gilbert, 22 Ala. 529; Couch v. Couch, 7 Ala. 519.
[4.] The fact of the testator’s giving a mortgage after the execution of the will, to secure a debt really not due, or for a sum much larger than was really due, was pertinent to the question of his intellectual condition; and the evidence tending to show those things was properly received. Whether the evidence required explanation, or was sufficiently explained, it is not our province to decide. McAllister v. State, 17 Ala. 434; McLean v. The State, 16 Ala. 672; Walker v. Clay, 21 Ala. 797.
[5.] Under the decisions in this State, the testimony shows the existence of such an opportunity on the part of the witness, Andrews, to know and form a correct judgment upon the mental status of the testator, that it was competent for him to give his opinion in connection with the facts deposed to by him. Whether the facts stated were, as is contended, insufficient to j ustify his conclusion, was a question for the jury.—Powell v. The State, 25 Ala. 21; Florey v. Florey, 24 Ala. 241; Norris v. The State, 16 ib. 776; Roberts v. Trawick, 13 ib. 84; Bowling v. Bowling, 8 ib. 538; State v. Brinyea, 5 ib., 241; 1 Jar. on Wills, 75, note 2; but see, also, McCurry v. Hooper, 12 Ala. 823, which seems to contain expressions inconsistent with the other cases. The exception to the testimony of Andrews applies alone to his opinion upon the question of sanity, and we merely decide that the exception is not well taken.
[6.] The mortgage, executed by the testator after making his will, does not manifest any intention on the part of the mortgagor to revoke the pre-existing will, nor is any such intention deducible from the will itself. Section 1603 of the Code says, “that a charge or incumbrance upon any real or personal property, to secure any [565]*565money, or the performance of any contract, does not operate as a revocation of any devise or bequest of such estate previously executed, unless it appears from the will, or instrument creating such charge or incumbrance, that such was the intention of the testator.” If the entire subject-matter of the bequests is covered by the mortgage, this statute presents an insuperable barrier to the conclusion, that the bequests are revoked by the subsequent mortgage. But at common law, the mortgage would not, of itself, operate an entire revocation of the will. The reasons why it would not are obvious, and are set forth in 1 Jarman on Wills, 171, marg. 131. But furthermore, the testator, as it was competent for him to do, bequeathed, in general terms, all his property at his death to his brother, the proponent.—Code, § 1502. The mortgage could not, of itself, effect a revocation of such a bequest; nor could any subsequent conveyance of a part of the property, or change in its character, effect such revocation. Any interest, or right of redemption, or other right remaining in the testator at his death, would fall within the operation of Ihe bequest. The deed of trust to Brantley, and the rescission by the testator of his contract of sale, would not revoke the will.
But one of the charges assumes the position, that • although the mortgage may not, per se, revoke the will; yet it did have that effect, if it was made to the sole beneficiary under the will, and such beneficiary procured it because he believed the will to be invalid, and the testator executed the mortgage for the same reason, intending that it should revoke and be substituted for the will. This charge does not present any of the cases of revocation mentioned in article 1, chap. 2, title 4, part 3 of the Code. Excepting the cases provided for in that article, section 1613 of the Code prohibits the revocation of a will, unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator himself, or some person in his presence, or by his direction, or by some other will in writing, or some other writing of the testator, subscribed and attested according to the requisitions of the section prescribing the mode of [566]*566execution and attestation of wills. The facts presented in the charge under consideration, certainly do not describe any one of the modes to which the power of revocation is limited by our statutes, and the court erred in treating them as evidencing a revocation of the will.
[7.] One of the charges given asserted, that “the standard of capacity fixed by the law, as requisite to the making of a will, was such as enabled a man to transact the ordinary business of life.” It is probable, that this charge was induced by a misapprehension of a remark by this court in the case of Coleman v. Robertson, 17 Ala. 84-87.
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A. J. WALKEN, C. J.—Upon
the question of the onus of proof as to testamentary capacity, the authorities are conflicting: many of them holding, that it is for the proponent of a will to prove the sanity of the testator, [563]*563(Dunlap v. Robinson, 28 Ala. 100; Wallis v. Hodgson, 2 Atk. 55; Powell on Devises, 82; Gerrish v. Nason, 22 Maine, 438; Potts v. House, 6 Geo. 324; Harris v. Ingledew, 3 P. Wms. 93; Brooks v. Barrett, 7 Pick. 94; Comstock v. Hadlyme, 8 Conn. 26;) while many others hold, that the presumption of sanity applies as well to probate as other cases.—Saxon v. Whitaker, 30 Ala. 237; Pettes v. Bingham, 10 N. H. 514; Jackson v. Van Dusen, 5 Johns. 144; Rogers’ Ecclesiastical Law, 900 ; Groom & Evans v. Thomas & Thomas, 2 Hagg. 433; Burrows v. Burrows, 1 Hagg. 109; 1 Jar. on Wills, 74, and note; 2 Greenleaf on Ev. 689; Sloan v. Maxwell, 2 Green’s Ch. 580; 1 Williams on Ex. 18; Lessee of Hoge v. Fisher, 1 Pet. C. C. R. 163.
The prima-facie intendment in favor of testamentary capacity, when an issue for the contestation of a will is made up, is consistent with the presumption, generally made, that men are sane ; and is required by the principle enunciated in the recent decision of this court in Saxon v. Whitaker, supra; and is the only rule which can harmonize with the law allowing the admission of a will to probate upon proof of handwriting, when the attesting witnesses are dead, insane, or out of the State, or have became incompetent since the attestation. We decide, therefore, that it was not incumbent upon the proponent to affirm the testator’s sanity in making up the issue; and that there was error in the instruction to the jury, that the onus of proof as to the question of sanity was upon the proponent.
[2.] The testimony as to the execution of the trust deed to Brantley, with the attending circumstances, and the fact of the testator’s seeking a rescission of his contract of sale, and employing the agency of a trustee to procure it, (whether remote or immediate, it is not for us to decide,) had a bearing upon the question of the testator’s capacity and susceptibility of influence from others. That testimony, and the reciprocal instruments executed by the testator and his brother at the time, were, therefore, admissible.
[3.] A legitimate inquiry in the contest of a will upon [564]*564the ground of undue influence and insanity, is whether the will is natural. To that inquiry, the pecuniary condition of the testator’s nephews, who would have been distributees of his estate in case of intestacy, was pertinent ; and the evidence upon that subject was admissible. Roberts v. Trawick, 13 Ala. 68; Coleman v. Robertson, 17 Ala. 84; Gilbert v. Gilbert, 22 Ala. 529; Couch v. Couch, 7 Ala. 519.
[4.] The fact of the testator’s giving a mortgage after the execution of the will, to secure a debt really not due, or for a sum much larger than was really due, was pertinent to the question of his intellectual condition; and the evidence tending to show those things was properly received. Whether the evidence required explanation, or was sufficiently explained, it is not our province to decide. McAllister v. State, 17 Ala. 434; McLean v. The State, 16 Ala. 672; Walker v. Clay, 21 Ala. 797.
[5.] Under the decisions in this State, the testimony shows the existence of such an opportunity on the part of the witness, Andrews, to know and form a correct judgment upon the mental status of the testator, that it was competent for him to give his opinion in connection with the facts deposed to by him. Whether the facts stated were, as is contended, insufficient to j ustify his conclusion, was a question for the jury.—Powell v. The State, 25 Ala. 21; Florey v. Florey, 24 Ala. 241; Norris v. The State, 16 ib. 776; Roberts v. Trawick, 13 ib. 84; Bowling v. Bowling, 8 ib. 538; State v. Brinyea, 5 ib., 241; 1 Jar. on Wills, 75, note 2; but see, also, McCurry v. Hooper, 12 Ala. 823, which seems to contain expressions inconsistent with the other cases. The exception to the testimony of Andrews applies alone to his opinion upon the question of sanity, and we merely decide that the exception is not well taken.
[6.] The mortgage, executed by the testator after making his will, does not manifest any intention on the part of the mortgagor to revoke the pre-existing will, nor is any such intention deducible from the will itself. Section 1603 of the Code says, “that a charge or incumbrance upon any real or personal property, to secure any [565]*565money, or the performance of any contract, does not operate as a revocation of any devise or bequest of such estate previously executed, unless it appears from the will, or instrument creating such charge or incumbrance, that such was the intention of the testator.” If the entire subject-matter of the bequests is covered by the mortgage, this statute presents an insuperable barrier to the conclusion, that the bequests are revoked by the subsequent mortgage. But at common law, the mortgage would not, of itself, operate an entire revocation of the will. The reasons why it would not are obvious, and are set forth in 1 Jarman on Wills, 171, marg. 131. But furthermore, the testator, as it was competent for him to do, bequeathed, in general terms, all his property at his death to his brother, the proponent.—Code, § 1502. The mortgage could not, of itself, effect a revocation of such a bequest; nor could any subsequent conveyance of a part of the property, or change in its character, effect such revocation. Any interest, or right of redemption, or other right remaining in the testator at his death, would fall within the operation of Ihe bequest. The deed of trust to Brantley, and the rescission by the testator of his contract of sale, would not revoke the will.
But one of the charges assumes the position, that • although the mortgage may not, per se, revoke the will; yet it did have that effect, if it was made to the sole beneficiary under the will, and such beneficiary procured it because he believed the will to be invalid, and the testator executed the mortgage for the same reason, intending that it should revoke and be substituted for the will. This charge does not present any of the cases of revocation mentioned in article 1, chap. 2, title 4, part 3 of the Code. Excepting the cases provided for in that article, section 1613 of the Code prohibits the revocation of a will, unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator himself, or some person in his presence, or by his direction, or by some other will in writing, or some other writing of the testator, subscribed and attested according to the requisitions of the section prescribing the mode of [566]*566execution and attestation of wills. The facts presented in the charge under consideration, certainly do not describe any one of the modes to which the power of revocation is limited by our statutes, and the court erred in treating them as evidencing a revocation of the will.
[7.] One of the charges given asserted, that “the standard of capacity fixed by the law, as requisite to the making of a will, was such as enabled a man to transact the ordinary business of life.” It is probable, that this charge was induced by a misapprehension of a remark by this court in the case of Coleman v. Robertson, 17 Ala. 84-87. The remark is as follows: “We do not apprehend, that any one will doubt, that any person is capable of making a will, who possesses sufficient capacity to transact the ordinary business of life.” This was said in reference to a charge objected to by the contestant of a will. The object was not to define a test of testamentary capacity, but simply to show that a capacity to transact the ordinary business of life was not below the standard of testamentary capacity, and that therefore the contestant had no right to complain. The assertion that a man is competent to make a will, who has capacity to transact the ordinary business of life, is a very different thing from making the capacity to transact the ordinary business of life the test or standard of testamentary capacity. It might with truth be said, that a lawyer, capable of conducting and arguing with professional skill a complicated case, involving difficult and abstruse questions, had a testamentary capacity; yet it would not follow, that a competency for such a task was the standard by which to decide the question of competency to make a will. There is, therefore, in the case referred to, no authority for the charge.
In Taylor v. Kelly, 31 Ala. 59, we said, if the testatrix “had memory and mind enough to recollect the property she was about to bequeath, and the persons to whom she wished to will it, and the manner in which she wished it to be disposed of, and to know and understand the business she was engaged in, she had, in contemplation of [567]*567law, a sound mind; and her great age, bodily infirmity, and impaired mind, would not vitiate a will made by one possessing such capacity.”—1 Jar. on Wills, 50, 51, 52, 53, and notes ; 1 Wms. on Ex. 35, and notes; Stevens v. Van Cleve, 4 Wash. C. C. R. 262; Rawdon v. Rawdon, 28 Ala. 565; Coleman v. Robertson, 17 Ala. 84; McElroy v. McElroy, 5 Ala. 81.
There may be a competency to make a will, without such capacity as would enable a man to transact the ordinary business of life. Feebleness of intellect, or the childishness and fretfulness of old age, not amounting to mental unsoundness, might make one unfit for the active business transactions of life, which would require prompt action upon newly presented subjects, with combinations to which the mind was unaccustomed; and yet there might be a full capacity to make a will. The rule which would make a capacity for the management and transaction of business generally the standard of testamentary capacity, is repudiated in Kinne v. Kinne, 9 Conn. 102, and Harrison v. Rowan, 3 Wash. C. C. R. 586.
Our argument does not interfere with the decision in McElroy v. McElroy, 5 Ala. 81, which seems to analogize the capacity to make a will with that which is necessary to make a contract; for it is conceivable, that one might have a sound mind, and be competent to make a contract, and yet be unfitted for engagement in the active duties of the business world. Certainly, an incapacity to transact the ordinary business of life would afford ground for an argument to the jury, but it cannot, consistently with reason or law, be made the standard of testamentary competency.
[8.] A total deprivation of reason is not requisite to destroy testamentary capacity. Dementia, and idiocy, are not the only forms of incapacity. A competent testator must not only have mind and memory, but mind and memory enough to understand the business in which he is engaged. There was, therefore, no error in the first three refusals to charge.
[9.] One of the reasons why one occupying a relation of peculiar intimacy with a person whose sanity is dis[568]*568puted, is permitted to express an opinion, is that it maybe . impossible for him to state all the minute circumstances, and to precisely describe the conduct and appearance, which are, in part, the predicate of his opinion. It may be, therefore, that an opinion as to intellectual soundness is correct, notwithstanding the witness might not be able to state facts from which his conclusion would be a necessary sequence. It does not necessarily follow, therefore, that the opinion of a witness should be excluded, because he is unable to state everything upon which it is based] or that it should be totally disregarded, because the facts actually stated may not justify the conclusion. There was no error in the fourth refusal to charge as requested by the proponent.
We think the points decided will cover the points likely to arise upon another trial, and we therefore decline to pass upon the other questions presented.
The judgment of the court below is reversed, and the cause remanded.