WALKER, J.
— 1. We pass by the question, whether the interest of Thomas C. Taylor was not released by some one 'or more of the several releases. He was one of the contestants, a party to the suit, and liable for costs; and, therefore, an incompetent witness, irrespective of his interest to defeat the establishment of the will. — Deslonde & James v. Harrington’s Heirs, 29 Ala. 92 ; Gilbert v. Gilbert, 22 Ala. 529; Code, § 1649.
2. The name of the contestant appears, from a statement in the bill of exceptions posterior to the rejection of the witness, to have been stricken out by the court on motion. There is nothing which indicates that this was done before that contestant was offered as a witness, or eotemporaneously with the offer of him as a witness; or that the striking his name out as a party had any connection with, or reference to, the offer of him as a witness. We must pass upon the rulings of the court upon the question, in the light of the circumstances which appear to have been before the court at the time. We cannot presume, for the purpose of reversing the judgment, that the witness had ceased to be a party when he was offered to the court. If the court erred, it must be shown by the bill of exceptions, and cannot be presumed. The bill of exceptions states, that the first release was executed, and thereupon the witness offered; and that he was a son of the deceased. The release is then set out. It is then said, that, “upon these facts, the court refused to allow him to be sworn.” Every subsequent offer of the witness is put expressly upon the ground of the release. No proposition, referring the restoration of his competency to the striking out of his name as a party, in connection with the release, was ever made. It is manifest that, [70]*70upon such a bill of exceptions, there is no room for us to say that the court below was ever called upon to decide the question of Thomas C. Taylor’s competency as a witness upon tbe hypothesis that he had ceased to be a party to the suit when he was offered. If he was a party, he was clearly incompetent. "We cannot, therefore, say that the court erred in rejecting the witness.
3. Mr. Justice Goldthwaite, in the case of Gilbert v. Gilbert, 22 Ala. 529, said: “Undue influence, legally speaking, must be such as, in some measure, destroys the free agency of the testator; it must be sufficient to prevent the exercise of that discretion, which the law requires in relation to every testamentary disposition. It is not. enough that the testator' is dissuaded, by solicitations or argument, from disposing of his property as he had previously intended; he may yield to the pursuasions of affection or attachment, and allow their sway to be exerted over his mind ; and in neither of these cases would the law regard the influence as undue. To amount to this, it must be equivalent to moral coercion. It must constrain its subject to do what is against his will, but which, from fear, the desire of peace, or some other feeling, he is unable to resist.” In 1 Williams on Executors, 42, we And the following language: “But the influence, to vitiate an act, must amount to force and coercion, destroying free agency; it must not be the influence of affection and attachment. It must not be the mere desire of gratifying the wishes of another; for that would be a very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coercion ; by importunity which could not be resisted; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear.” — 1 Jarman on Wills, 89 ; Dunlap v. Robinson, 28 Ala. 100; Leverett’s Heirs v. Carlisle, 19 Ala. 80. The charges given, numbered 1, 2, and 3, assert propositions of law, which are laid down in these quotations; and we therefore cannot regard them as erroneous.
4. The effect of the fourth charge given, was not to take from the jury the consideration of the supposed [71]*71misrepresentation, in determining the extent of power acquired by tire proponent over the testatrix; and whether he had withdrawn her confidence from the child misrepresented, placed her beyond the influence of that child, and thus subjected her to his control. The jury could have implicitly followed the instruction, and yet allowed the fact of the misrepresentation, in connection with the other evidence, to have its full weight upon the decision of the question of undue influence. The instruction to the jury was not, that they should disregard the misrepresentation as evidence in the case, but that the misrepresentation, not having produced a direct effect in influencing the bequest to him who was misrepresented, would not vitiate the will. It raised the question of the effect of the single fact of a misrepresentation, which did not influence the only bequest which, from its nature, it'was calculated to affect directly. The propriety of the charge will be made apparent by asking the question : If there were no other evidence than the misrejuesentation of Thomas C. Taylor, and the fact that it did not affect the bequest to him, would the will be vitiated ? The charge simply answers this question in the negative, and, in doing so, does not violate the law.
5. If the 5th charge given had said, that although the will was made under undue influence, yet ,if subsequently ratified ■when there was no cause for fear, and when the undue influence was removed, the will loould be valid, we would hesitate to declare it correct. Such a charge would take from the jury the consideration of the other grounds upon which the will was assailed. The charge is not that, upon the facts presented in it, the will would be valid, but that the will “would be same, in law, as if no undue influence had been exertedor, in other words that a subsequent ratification, in the absence of fear and undue influence, wouldleave the case as if undue influence had notbeen proved. It is conceivable, that the cause of the undue influence, or the agency which exerted it, might be “removed,” and yet the influence itself might linger upon the mind of the testatrix. We therefore do not say that a ratification, in the mere absence of the agency which produced the [72]*72undue influence, would make the will stand as if no undue influence had been exerted. The question presented by the charge is, whether a ratification, when there is no fear, and when the undue influence — the undue power over the mind of the testatrix — has been removed, will strip the case of all effect from undue influence, as a ground for assailing the will. Thus understood, we think the charge is correct. The undue influence could not be said to continue the exercise of its dominion over the mind, when' it has been removed. When the undue influence has been withdrawn, the power and dominion over the mind and will are gone, and they are left free.
6. In the 6th charge there is no error. The standard of the capacity, necessary to qualify one to make a valid will, as laid down in the charge, was not too low. That the testatrix should make a valid will, it was not necessary that her memory should be perfect, and her mind unimpaired.
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WALKER, J.
— 1. We pass by the question, whether the interest of Thomas C. Taylor was not released by some one 'or more of the several releases. He was one of the contestants, a party to the suit, and liable for costs; and, therefore, an incompetent witness, irrespective of his interest to defeat the establishment of the will. — Deslonde & James v. Harrington’s Heirs, 29 Ala. 92 ; Gilbert v. Gilbert, 22 Ala. 529; Code, § 1649.
2. The name of the contestant appears, from a statement in the bill of exceptions posterior to the rejection of the witness, to have been stricken out by the court on motion. There is nothing which indicates that this was done before that contestant was offered as a witness, or eotemporaneously with the offer of him as a witness; or that the striking his name out as a party had any connection with, or reference to, the offer of him as a witness. We must pass upon the rulings of the court upon the question, in the light of the circumstances which appear to have been before the court at the time. We cannot presume, for the purpose of reversing the judgment, that the witness had ceased to be a party when he was offered to the court. If the court erred, it must be shown by the bill of exceptions, and cannot be presumed. The bill of exceptions states, that the first release was executed, and thereupon the witness offered; and that he was a son of the deceased. The release is then set out. It is then said, that, “upon these facts, the court refused to allow him to be sworn.” Every subsequent offer of the witness is put expressly upon the ground of the release. No proposition, referring the restoration of his competency to the striking out of his name as a party, in connection with the release, was ever made. It is manifest that, [70]*70upon such a bill of exceptions, there is no room for us to say that the court below was ever called upon to decide the question of Thomas C. Taylor’s competency as a witness upon tbe hypothesis that he had ceased to be a party to the suit when he was offered. If he was a party, he was clearly incompetent. "We cannot, therefore, say that the court erred in rejecting the witness.
3. Mr. Justice Goldthwaite, in the case of Gilbert v. Gilbert, 22 Ala. 529, said: “Undue influence, legally speaking, must be such as, in some measure, destroys the free agency of the testator; it must be sufficient to prevent the exercise of that discretion, which the law requires in relation to every testamentary disposition. It is not. enough that the testator' is dissuaded, by solicitations or argument, from disposing of his property as he had previously intended; he may yield to the pursuasions of affection or attachment, and allow their sway to be exerted over his mind ; and in neither of these cases would the law regard the influence as undue. To amount to this, it must be equivalent to moral coercion. It must constrain its subject to do what is against his will, but which, from fear, the desire of peace, or some other feeling, he is unable to resist.” In 1 Williams on Executors, 42, we And the following language: “But the influence, to vitiate an act, must amount to force and coercion, destroying free agency; it must not be the influence of affection and attachment. It must not be the mere desire of gratifying the wishes of another; for that would be a very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coercion ; by importunity which could not be resisted; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear.” — 1 Jarman on Wills, 89 ; Dunlap v. Robinson, 28 Ala. 100; Leverett’s Heirs v. Carlisle, 19 Ala. 80. The charges given, numbered 1, 2, and 3, assert propositions of law, which are laid down in these quotations; and we therefore cannot regard them as erroneous.
4. The effect of the fourth charge given, was not to take from the jury the consideration of the supposed [71]*71misrepresentation, in determining the extent of power acquired by tire proponent over the testatrix; and whether he had withdrawn her confidence from the child misrepresented, placed her beyond the influence of that child, and thus subjected her to his control. The jury could have implicitly followed the instruction, and yet allowed the fact of the misrepresentation, in connection with the other evidence, to have its full weight upon the decision of the question of undue influence. The instruction to the jury was not, that they should disregard the misrepresentation as evidence in the case, but that the misrepresentation, not having produced a direct effect in influencing the bequest to him who was misrepresented, would not vitiate the will. It raised the question of the effect of the single fact of a misrepresentation, which did not influence the only bequest which, from its nature, it'was calculated to affect directly. The propriety of the charge will be made apparent by asking the question : If there were no other evidence than the misrejuesentation of Thomas C. Taylor, and the fact that it did not affect the bequest to him, would the will be vitiated ? The charge simply answers this question in the negative, and, in doing so, does not violate the law.
5. If the 5th charge given had said, that although the will was made under undue influence, yet ,if subsequently ratified ■when there was no cause for fear, and when the undue influence was removed, the will loould be valid, we would hesitate to declare it correct. Such a charge would take from the jury the consideration of the other grounds upon which the will was assailed. The charge is not that, upon the facts presented in it, the will would be valid, but that the will “would be same, in law, as if no undue influence had been exertedor, in other words that a subsequent ratification, in the absence of fear and undue influence, wouldleave the case as if undue influence had notbeen proved. It is conceivable, that the cause of the undue influence, or the agency which exerted it, might be “removed,” and yet the influence itself might linger upon the mind of the testatrix. We therefore do not say that a ratification, in the mere absence of the agency which produced the [72]*72undue influence, would make the will stand as if no undue influence had been exerted. The question presented by the charge is, whether a ratification, when there is no fear, and when the undue influence — the undue power over the mind of the testatrix — has been removed, will strip the case of all effect from undue influence, as a ground for assailing the will. Thus understood, we think the charge is correct. The undue influence could not be said to continue the exercise of its dominion over the mind, when' it has been removed. When the undue influence has been withdrawn, the power and dominion over the mind and will are gone, and they are left free.
6. In the 6th charge there is no error. The standard of the capacity, necessary to qualify one to make a valid will, as laid down in the charge, was not too low. That the testatrix should make a valid will, it was not necessary that her memory should be perfect, and her mind unimpaired. If she 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 law, a sound mind; and her great ago, bodily infirmity, and impaired mind, would not vitiate a will made by one possessing such capacity. These are the propositions which the charge asserts, and they are correct. — Harrison v. Rowan, 8 Wash. C. C. 385; 1 Jarman on Wills, 50; Coleman v. Robertson, 17 Ala. 84.
7. The instrument executed, in 1856, by Nancy Taylor, Kelly, and William L. Taylor, includes seven slaves, four of which are probably identical with the four slaves mentioned in the will, though that does not appear with certainty. The will does not bequeath only the four slaves which are claimed to be embraced in the instrument of agreement; but, after the bequest of the price fixed upon the slaves, it gives all the household property of the testatrix to Fanny Williams and Martha 8. Kelly. Conceding thaff this instrument of agreement was a revocation of the bequests of the will so far as the slaves mentioned [73]*73in that agreement were concerned, it can have no other effect. Waiving the question of the effect of the instrument upon the bequests of the slaves, as one not necessary to be decided here, it is clear that the will was not thereby revoked in toto. It still remained a subsisting will as to the household property, and, on that account, was a proper subject of probate, if legally executed and established to the court. — 1 Jarman on Wills, 166, § 3j 1 Williams on Executors, 167, note 2; Powell v. Powell, at the present term. It follows that there is no error in either the 7th or the 16th charge.
8. The charges numbered 9 and 13 were correct. It is established law in this State, that the proponent of a will cannot, by his declarations or acts, manufacture the evidence to defeat the probate of the will, to the prejudice of other legatees, notwithstanding he may be himself a legatee. — Roberts v. Trawick, 13 Ala. 68; Walker v. Jones, 23 Ala. 448; Bunyard v. McElroy, 21 Ala. 311. The proponent was not the only legatee under the will. Besides him and the contestants there were several others. We cannot say that those others assented to have their rights in the matter of the piiobate of the will affected by the declarations of Kelly, the executor. The question falls precisely within our former decisions, which we approve. The declarations and acts of the proponent of the will cannot estop the court from admitting the will to probate, and, consequently, cannot estop the offer of it for probate by the proponent in this case. If the proponent has estopped himself from asserting any right bestowed on him by the will, as against the contestants or either of them, it may be a matter for consideration in some subsequent suit; but it is entitled to no effect upon the question of the validity of the will in controversy in this case.
9. It may be that the provisions of the will, giving the slaves to Kelly and his wife, to go into their immediate possession, at the price of seventeen hundred and fifty dollars, and allowing to them five hundred dollars of that sum for supplying to the testatrix all things needful for her support and comfort during her natural life, make a [74]*74contract inter vivos ; bnt every other provision of tlio instrument is clearly testamentary. The eleventh charge was not so favorable to the proponent, as he ivas entitled to have it. The construction of the instrument was for the court; and the court should have instructed the jury, that it was a will. That the court erred in making the question whether it was a will depend upon certain extrinsic facts, ivas a matter not prejudicial to the contestant. It was an error in his favor. It placed obstacles, unauthorized by law, in the way of the establishment of the will.
10. The fact that some provisions of the instrument offered for probate may have had the force of a contract, and may have become operative during the life time of the testatrix, does not deprive the other provisions of the will of their testamentary character, nor render the instrument inadmissible to probate as a will. Therefore, the court did not err by saying, in the charge numbered 15, that the possession of the slaves by Mrs. Kelly, in the life time of the testatrix, would not vitiate the will.
11-12. The 14th charge is somewhat complex and involved, and may, possibly, have contributed to mislead the jury, by seeming to make the latter of the two propositions which it contains the antithesis of the former. The charge, however, asserts no incorrect proposition; and its ambiguity, and tendency without explanation to mislead, will not, under the former decisions of this court, authorize a reversal. — Partridge v. Forsyth, 29 Ala. 200. It was the privilege of the party liable to be prejudiced, to protect himself by asking an explanatory charge. The two propositions of the charge are, that the jury were not bound to believe a witness, and that in, determining what is correct testimony, they must look to all the facts and circumstances of the case. In determining the credibility of a witness, the jury looking at all the various matters which legitimately affect his credibility, are to judge whether ho merits belief.
13. There is no error in charge number 17. The objection made to it is, that it left the question of revocation, which is supposed tobe a question oflaw, to the jury. Let it be conceded that the revocation of the will involves a ques[75]*75tion of law, and yet the charge contains no error prejudicial to the appellant. The bill of exceptions set out all the evidence, and there is no proof tending to show a revocation of the will. The charge, therefore, in making the negation of a revocation necessary to the establishment of the will, imposed an onus upon the proponent which did not belong to him; and thus, if there be error in the charge, it is one favor of the appellant.
14. The principles which we have laid down in passing upon the charges given, cover the questions presented by the charges asked and refused, and show that the court was correct in refusing them.
On the margin of one of the charges asked by the appellant, the presiding judge wrote “refused,” and on the face of the same charge, and near the bottom of it, he wrote “given.” The bill of exceptions states, that the court gave that charge in part, and refused it in part. The charge asserts the two propositions, that certain acts of Kelly would estop him from offering the will for probate, and that he being estopped, the will could not he admitted to probate on his application. The appellant was not entitled to have either one of those propositions given as a charge to the jury; and if either was given, he obtained so much more than he ought to have had. "We cannot reverse the case for the refusal of the court to give or refuse the charge as asked, when there is no exception for that omission, and it affirmatively appears that the appellant was not prejudiced thereby.
The judgment of the court below is affirmed.