The opinion of the court was delivered by
Steele, J.
I. 1. In the county court, upon appeal from the probate court, on trial of the issue whether the probate should pass, the proponent of the will examined two of the attesting witnesses and produced the third, Dr. Woodward, but declined to examine him. The court ruled that the third must also be examined by the proponent. The third was accordingly under this order of the court examined, but only in respect to the formal execution of the will. Then, on cross-examination, the witness stated in substance, that the decedent was not, in his judgment, of testamentary cajiacity when he executed the will in question. After the usual preliminary inquiries, the proponent was permitted in the progress of the trial, .for the avowed purpose of impeaching the credit of the witness Woodward, to prove, by the deposition of Mr. Parker and by other persons, that the witness had out of court expressed a different opinion, to the effect that the decedent was of sound mind at the time, and that his faculties seemed to have been just spared to make this will. To the admission of this impeaching testimony the contestants excepted, upon the ground that the proponent should not be allowed to attack the credit of his own witness.
The first question for decision is, whether it is necessary for the proponent, in order to establish a will, to produce and examine all the attesting witnesses, when in his power- so to do. If this is not necessary, Dr. Woodward might be treated as not the witness of the proponent. The case would resemble Rex v. Oldroyd, Russ. & Ry. Cr. Cases 88, in which the judge of his own motion called as a witness the prisoner’s mother, whose name was indorsed on the indictment as one of the witnesses for the prosecution, but who had not been called by the prosecuting counsel. Her testimony [149]*149proved favorable to the prisoner ; and the court then permitted her to be impeached, by reference to her former deposition. In this, although the trial was upon an indictment for murder, all the judges, including Lord Mahseield and Lord Ellenbokough, held there was no error.
Our statute requires wills to be attested by three witnesses, but is silent as to the manner in which they shall be proved when contested. When not contested the statute provides, that they may in the discretion of the judge be admitted to probate upon the testimony of one of the subscribing witnesses : G-. S. p. 379, § 18. This provision would indicate that more were to be required in other cases. In an English common law court, when, as in an action of ejectment, the issue was made upon the validity of a will, the devisee was obliged to call but one of the attesting witnesses, if that one testified to a sufficient execution: 1 Phil. Ev. (Cowen & Hill’s Ed.) 496, 501 ; Anstay v. Dowsing, 2 Str. 1254 ; Jackson ex dem. Le Grange v. Le Grange, 19 Johns. 386. In the Ecclesiastical Courts, it was necessary that all should be produced by the devisee, if in his power; but he was not required to .examine all himself: The Lochlibo, 1 Eng. Law & Eq. 645-7.
It is urged that one or the other of these rules should prevail here. But, it is to be remembered, that at common law a will is proved merely for the purpose of the case on trial, and may be again put in issue ; and in the Ecclesiastical Courts it was proved with reference to the distribution of none but personal estate : 2 Bouvier’s Bac. Ab. 730. The only method by which until recently a will, when it related to real as well as personal estate, could be established in England, was by a bill in chancery; and in such eases, says Lord Camden (Hindson v. Kersey, 4 Burn. Ecc. Law, 91,) it was the “invariable practice ” to require the three witnesses to be examined. It would seem, however, that upon an issue in chancery, other than for the purpose of establishing the will, the examination of the three witnesses was not required. So, in the case Tatham v. Wright, 2 Russ. & Mylne, 1, reported also in 6 Eng. Ch. Rep. 366, where the will was attacked by the heir-at-law, who brought his bill praying that the will be declared void, and the devisee be restrained from setting up [150]*150a legal estate as a bar to an ejectment, and issues upon the validity of the will were made up and sent out for trial by jury before Paree, J., one only of the subscribing witnesses was examined by the devisee, the others being produced in court and offered to the other party. The verdict being in favor of the will, the heir-at-law filed a motion for a new trial, which was refused by Sir John Leach, Master of the Rolls. The heir then moved the Lord Chancellor for a new trial, and in the meantime his counsel, Mr. Brougham, who had acted for him before the jury and had argued in behalf of the motion before the Master of the Rolls, had himself become Lord Chancellor. Under these circumstances Lord Brougham asked Lord Chief Justice Tindal and Lord Lyndhurst to sit with him, and all three agreed that the motion was not well founded and must be refused ; Lord Brougham remarking, “ there is a broad line of distinction between cases where the moving party seeks to set the will aside, and cases where the moving party is a devisee seeking to establish it; the rule which makes it imperative to call all the witnesses to a will, must be considered as applicable to the latter only.” The application of this rule to proceedings in which wills are “ established” is also recognized in the opinion of the Lord Chief Justice in behalf of himself and the Lord Chief Baron. The same doctrine was distinctly held by Lord Eldon : Bottle v. Blundell, 19 Ves. Jr. 501-508. See also Chase v. Lincoln, 3 Mass. 236; 1 Phil. Ev. (Cowen & Hill’s Ed.) 496-7; Ogle v. Cook, 1 Ves. Sen. 177; 10 Bouvier’s Bac. Abr. 518-19, and cases cited. There are some dicta to the effect that this rule was not invariable, but we are aware of no English case in chancery, in which a will was established without the production and examination of all the subscribing witnesses, if all were within reach of process and obtainable — unless it may be in .case of waiver by the heir-at-law.
It is held that the production of attesting witnesses is excused by proof of their death (Nickerson v. Buck, 12 Cush. 332,) insanity (Bennett v. Taylor, 9 Ves. Jr. 381,) absence from the country (Lord Carrington v. Payne, 5 Ves. Jr. 404,) or incompetency arising subsequent to their attestation (2 Redf. Wills 34 ; G. S. p. 378-9, §§ 10, 19. See also Wyndham v. Chetwynd, 1 Black. Rep. 95.) The rule [151]*151which requires them all to be examined, if practicable, is founded upon reasons of policy and caution, and has no reference to the measure of proof necessary to establish a will, which is a measure no greater than is usually required to establish a fact: Dean v. Dean, 27 Vt. 750. The proponent of a contested will is entitled to prevail, if there is a fair balance of testimony in favor of the validity of the will. We think, if our statute requires any aid for its interpretation from the English practice, in determining how. many subscribing witnesses should be called to prove a will, we should look to that English court in which alone wills were, as in our probate court, established ; and to the rule of that court in establishing wills, instead of regarding the rule at law or in the Ecclesiastical Courts, or even in the recent English court of probate. So far as we are informed, the production and examination of all the witnesses have been always required and thought necessary in this state. See opinion of Isham, J., in Dean v. Dean, 27 Vt. 749. We are of opinion that the court was correct in ruling that the proponent must examine all the attesting witnesses.
2. This being settled, the next question is, — Was the testimony on behalf of the proponent to impeach one of these witnesses, by his previous declarations, admissible? It is useless to attempt to justify the admission of this testimony under any general rule. The due execution of a will involves the question of sanity as well as of signature, but even if this was not so, and the cross-examination instead of being legitimate had been so much upon a new subject as to deprive the contestant of the right, except by leave of court, to ask leading questions, still, under the general rule, the witness remains the witness of the party who produced him, so far that he may not be impeached by that party : Fenton v. Hughes, 7 Ves. 287 ; Ellicott v. Pearl, 12 Curtis 187-8 (from 10 Pet. 440-1.) Nor can the testimony relating to the previous declarations of the witness be regarded as proof of a substantivé fact (Gould v. Norfolk Lead Co., 9 Cush. 838,) so as to come within the rule which permits a witness to be contradicted, and thus incidentally impeached by proving the facts in issue to be different from his statement of them : Friedlander v. London Insurance Co., 24 E. C. L. 47, 4 B. & Ad. 193 ; Ewer v. [152]*152Ambrose, 10 E. C. L. 220 and note, 3 B. & C. 746 ; Sigfried v. Levan, 6 S. & R. 308 ; The Lochlibo, 1 Eng. L. & Eq. Rep. 645-8-9-651, a rule which is so well recognized that while a will may not he established without the evidence of the attesting witnesses, it may be established against the combined testimony of them all by proof from others : Lowe v. Jolliffe, 1 Black’s Rep. 365 ; Adams v. Field, 21 Vt. 256 ; Jauncey v. Thorne, 2 Barb. Ch. 40 ; Bowman v. Christman, 4 Wend. 277 ; 10 Bouvier’s Bac. Abr. 527, and cases cited.
The declarations of Dr. Woodward out of court cannot be shown to prove 'his opinion. Such statements could only have weight in impeaching the credit of Woodward, and not in establishing what his opinion was of how the fact was. That the proponent examined the witness only so far as the law made it his imperative duty to examine him ; that he then sought to impeach him, not by attacking his general reputation, but only in respect to this testimony by his own declarations inconsistent therewith; that these declarations were made after he was selected as an attesting witness by the decedent ; that whatever the usual presumption of law is, his credibility was, in fact, not indorsed by the party who called him under compulsion, are rather reasons to be urged why this testimony should be * received against the general rule, than arguments to prove that such testimony is receivable under it. On the other hand, there is no force in the objection to the admission of this testimony so far as it is put upon the ground, that it is an impeachment of the legal poof, without which the will may not be established ; for the will may, as has already been remarked, be established against it by other proof. The rule which provides that the will shall not be probated without this testimony, does not provide that it shall not be probated without this testimony in its favor. Being participants in the execution, if the will was duly signed, and thus having special opportunity and occasion to observe and know what the trier must ascertain to determine upon the validity of the will,, the law as well as sound policy requires them to be called and heard. It does not require them to be believed. Their claim to belief depends not only upon their opportunities of knowledge upon the subject, but also upon their care, skill, [153]*153judgment, memory, and truth. While it is settled that their testimony may be overcome or outweighed by testimony from others, produced on behalf of the same party, the question now is whether the force of their testimony to be thus overcome, may be lessened by an impeachment of their credit, as was done in this case, or whether, on the contrary, the proof from others must be sufficient to establish the fact and outweigh or overcome theirs, not lessened in force by any such impeachment.
We are not aware that the rule, that a party is estopped from impeaching the credit of his own witness, has ever been recognised as inflexible. It is not so treated by the text writers. Mr. Phillips says, it will not in general be allowed, but in remarking upon impeachment by previous declarations, refers to the opinion expressed by Lord Mansfield and Lord Ellenbobough in Oldroyd’s case, .before referred to, to the effect that the prosecutor would have had the same right with the court, to impeach the credit of the witness by her former deposition under the circumstances of that case. Mr. Starkie also refers to the question as unsettled, and thinks that upon reason and principle it should, in some cases, be allowed to the extent of proving the representations of the witness upon the subject in relation to which he testified. Mr, G-reenleaf refers to the question as one upon which there is a diversity of opinion, but says that the weight of authority seems to be in favor of allowing witnesses to be impeached by former declarations, in some cases. In the course of his discussion of the subject, he refers particularly to cases in which the witness is one “ whom the law obliges the party to call, such as the subscribing witness, to a deed or will or the like and seems to think their general credit may be impeached by the party calling them: 1 Phil. Ev. (Cowen & Hill’s Ed.) 309-11 ; 1 Starkie’s Ev. 217-20 ; 1 Greenl. Ev., § 443. See also discussion of cases relating to right of party to contradict, and sometimes even to discredit, his witness, in 2 Ph. & Amos Ev. (5th Am. Ed.) 838-43 [*902 et seg.~\
Nor are the books destitute of express judicial decisions to the same effect. The refusal to admit precisely such testimony as this on the part of the proponent, to impeach the subscribing witness of a [154]*154will, was disapproved by the supreme court of Pennslyvania in Cowden v. Reynolds, 12 S. & R. 280, and a new trial granted that it might be received. So, too, in Dennett v. Dow, 17 Maine, 19, a new trial was granted upon the sole ground that the court below rejected such testimony in a trial upon the issues of the sanity of the testator, and the due execution of the will. This case was affirmed by Shorey v. Hussey, 82 Maine, 579. In South Carolina, the admission of evidence to impeach the general credit of the subscribing witness to a deed, on the part of the party who called him, was approved : Williams v. Walker, 2 Rich. Eq. Rep. 201.
In Bootle v. Blundell, 19 Vesey, Jr,, 500, 502-509, all the attesting witnesses gave their depositions in the court of chancery, but upon trial of the issues sent by the court to the jury one only of the subscribing witnesses was examined, the plaintiff declining to examine the other two. The plaintiff introduced other proof, strongly in his favor, and the defendant then gave up the cause. Afterwards the defendant moved for a new trial because all the attesting witnesses were not examined. The Lord Chancellor (Eldon) holding that the heir at law might waive the rule of court for his benefit that all the attesting witnesses must be examined, and from an examination of the whole record, being satisfied that their testimony would not alter the result, and guarding the case as a precedent, denied the motion ; but expressed great dissatisfaction with the irregularity of the trial, and remarked that the subscribing witnesses “ are the witnesses of this court and not of either party, as erroneously considered.” “ If,” he says, “ the object is to establish a will, this court does not give the devisee the opportunity of carrying it before a jury until all the three witnesses have been examined, and will have them all examined, considering them as its witnesses without entering into the dispute frequently occurring in a court of law, whether the person called is the witness of the one party or the other.” “ This court, therefore, before an heir shall be deprived of that opportunity which the law gives him by repeated ejectments to question again and again the validity of the will, until his conduct constitutes a case of that vexatious nature which induces the court to grant an injunction, the court, as it will know the whole truth, expects that all the [155]*155witnesses shall be examined on the one side or the other. If I had tried such an issue I should have told the jury that these witnesses, if not to be considered the witnesses of the plaintiff, were not, though they had been called by the defendant, his witnesses, but that this was a proceeding to try the actual fact with a view to the information of this court; who must, to establish the will, know the whole and therefore the case must go to trial without that prejudice which is the consequence of considering them as the witnesses of either party, and merely as a judicial proceeding to inform the court.” See also Coles v. Coles, Law Rep. 1 P. & D. 70.
In all these cases the witnesses were what may be called instrumental witnesses. Many cases may be cited the other way (as see Brown v. Bellows, 4 Pick. 179 ; Queen v. State, 5 Harr. & John. 232 ; Lawrence v. Barker, 5 Wend. 301 ; Whitaker v. Salisbury, 15 Pick. 534 ;) and in such a conflict of authority, this being the first occasion on which the question has, so far as we are informed, arisen here, we have felt considerable hesitation about admitting an exception to a wholesome general rule. But where the reason of a rule ceases the rule generally should also, unless some special inconvenience or mischief will be likely to arise from the practical application of the exeeption.| The reason of the general rule is that a party should be estopped from impeaching the credit of the witness whose credibility he indorses by calling him. The reason fails when in fact the party is, as in this case, compelled by law to call him, no matter how much he doubts the credibility of the witness, before he can be allowed to prove his case by others on whom he relies, t There certainly would seem to be no ground in reason or convenience in holding the párty estopped from impeaching such a witness to the extent of proving his former declarations on the same subject. / The fairness of holding a party estopped by reason of an act with relation to which he has no choice or by an indorsement which he does not make of a witness whom the law calls and makes current whether the party indorses him or not, may well be questioned. It would seem enough that the party is obliged to examine him and make his way through him by such an impeachment and to prove the facts by others — that he is required to furnish the court with the testimony [156]*156of the attesting witnesses on account of the presumption of their knowledge of the matter, with the permission to endeavor to overcome their testimony if adverse — without tying his hands in the effort to overcome it, by depriving him of the ordinary, natural, and most effective means to aid him in so doing. The case is quite different from the one supposed, in which the only person who knows a material fact, as in an assault, is called from the necessity of the case and testifies against the party who called him. If no one else knows the fact the party cannot be benefitted by impeaching the witness, because that will not prove the fact; and if any one else does know it and is reliable, he should have seen to it that he called the reliable witness. He is at liberty to choose. But if by some rule of law he was first compelled to call one of the witnesses in preference to the other, the cases would be similar. It is strongly urged that though the witness may not have been indorsed by the proponent, he was indorsed by the decedent. If we assume that he signed at the request of the decedent, which in some cases might be the point in question, and that the devisee who claims through the will to represent the decedent is more responsible for the decedent’s selection than the contestant who claims by heirship to represent him, still the case stands very differently from the case of any other than an instrumental witness. That individual of the bystanders who was asked to write his name as a witness must be called. In ordinary cases of requesting a bystander to remember and bear witness, the party would not be required to call the person whose attention was invited, if he preferred to call others instead. The witnesses to an instrument, even if carefully selected at the time they attest, may change in character, feeling, and interest before being called to testify. To forbid the proponent the impeachment of a witness to the will by his own declarations made after his selection as an attesting witness, while, if he becomes entirely incompetent, the will may be proved without his testimony, would, we fear, be carrying the general rule to an extent which would be inconsistent and could only be justified by artificial and arbitrary reasons, and which would not be calculated to aid the truth, the ultimate end of laws of evidence. ¥e are aware that many but not all the reasons for admitting this testi-. [157]*157mony would apply as well to an impeachment of a general nature. But the authorities have in many instances made a clear distinction between the admission of an impeachment of the general veracity of the witness and an impeachment by proving declarations of the witness inconsistent with his testimony. Whether the distinction is well taken we desire to express no opinion. We think this testimony, to the extent and under the circumstances of its admission in this case, was properly received.
3. Another question grows out of the testimony of this attesting witness, Dr. Woodward. The contestants excepted to the refusal of the court to instruct the jury in accordance with their sixth request “ that the testimony of Dr. Jonathan D. Woodward, as being one of the subscribing witnesses to the instrument in question and the attending physician of the alleged testator, was entitled to much consideration on the question of capacity, and raised a strong presumption against the validity of the will.” The weight of his testimony, so far as it depended on his being a medical attendant of the decedent, must be conceded to have been a matter of fact with relation to which the comments of the court are not a subject of exception. But it is claimed that the weight of his testimony, so far as it depended on his being a subscribing witness, was a matter of law and that the court was bound to rule as requested, even though the witness was contradicted by both the other subscribing witnesses and by his own previous declarations, and even though by his own statement he made no suggestion to any one, at the time of the execution of the will, that he doubted the testator’s capacity, and was not sure that he had any conversation with the testator on the day in question. The court in response to this request told the jury that they should consider his professional skill and experience, but that the weight and value of his testimony must also be determined, like that of the other witnesses on this subject, “ with reference to his opportunity for observation, his skill and care in observing, his intelligence and powers of discernment and memory,” which doubtless would ordinarily be a correct rule for measuring the value of the testimony of a truthful witness. Is there a weight given by law to the testimony of a subscribing witness apart from or beyond what it would be entitled [158]*158to under these considerations which usually govern the value of testimony? We think the prominence which, in opinions where both law and fact are discussed, is given by courts to the testimony of a subscribing witness to a will, arises from his acknowledged opportunity of observation at the precise time in question, and from the probability of his using the opportunity on account of his participation in the transaction. • If it clearly appears from his own testimony that he did not use the opportunity, this special value of his opinion ceases. It is because of this opportunity, and not because he wrote his name on the instrument, that the testimony of an attesting witness is usually listened to with attention, and it was with reference td this opportunity that the jury were instructed to weigh the testimony of Dr. Woodward. It was not entitled to more weight than testimony from other witnesses of equal credit, better opportunity, and more judgment and knowledge upon the subject. It should not be invested by law with any fictitious official weight, so as to pass for more than it is worth ; and its real value, if truthful, is measurable by the rules laid down by the court. This question is to some extent involved in the one already passed upon. If evidence to impeach the credit of Dr. Woodward was properly received, it would hardly be consistent to hold as a matter of law that his testimony deserved especial consideration and carried a strong presumption with it, whether his credit was successfully impeached or not.
II. The contestants in their eleventh request asked the court to rule that for the reasons named in their request, “ the evidence in regard to the two previous wills drawn up but not executed ■ by the alleged testator, afforded no proof of any intention on his part that could be taken into consideration on the question of capacity or influence.” It is well settled that evidence of previous wills, executed or unexecuted, drawn under the instructions of the .testator, is admissible. So, too, evidence is received, as was done here, to prove the condition of the testator’s estate, his family relations, affections, and [159]*159declarations of testamentary intention, accompanied by no act. Such evidence informs the triers of the preferences of the testator," and the operations of his mind upon the subject, when he was confessedly in sound health, and thus aids them in determining whether the instrument in question was the work of the same will. The counsel for the contestents concede in argument the admissibility of this testimony, but deny that it is entitled to any force. To be admissible, it must be relevant to one of the two questions tried, capacity and influence ; and if the court had told the jury, as requested, that it was not to be considered on either of these questions, he would have ruled the evidence out of the case. The reasons of the request are, in substance, that the other testimony in the case destroyed the force of this. The jury would be the judges upon that question if the other testimony was conflicting, or if it was of a character not to necessarily deprive this testimony of all weight. The first ground upon which this request is based, is, that the testimony of Colvin shows the two unexecuted wills to be unlike. If they were substantially unlike, it might lessen but not destroy their title to consideration. The testimony of Colvin does, however, tend to show that they were substantially alike. The draft of 1858, as he says, was left unexecuted by the decedent on account of a difficulty between the testator and the heirs of his deceased son Jeremiah, which it appears involved not over six hundred dollars, and the draft of 1860 was made in order, as the testator^said, to make this right. The witness remembers no other material changes. The heirs of Jeremiah were still made legatees in the draft of 1860, and were provided for more generously than other grandchildren of the testator. The second ground of this request is, that the draft of 1860 was made with relation to this difficulty, which the contestants’ evidence tended to show ceased before the will in question was executed in 1865. The testimony on the subject of the continuance of the difficulty was conflicting, and the court could not in any event have based upon it the charge requested, without deciding the fact. But assuming that the jury found that the difficulty was healed, the case is not changed; for the will of 1865 did make a different bequest to these heirs from the one provided in the draft of 1860, while most [160]*160of the legacies remained substantially tbe same. They were precisely the same to the heirs of his other deceased son Stukely. No change was made in the legatees, with the exception of the addition of Mary E. Maranville, who was not born when the draft was made, and is made to divide the bequest which was there provided for her sister, and the substitution of the widow of Abel Thornton, as residuary legatee, in the place of Abel Thornton himself, he having- died since 1860, and before the execution of the will in question. The other reason, which is made the ground of this request, is the fact that the testator kept the draft of 1860 until 1865 without executing it. This was a proper subject of comment on both sides, but that an intention is not executed is not conclusive proof that no intention existed. Upon the undisputed facts of the case we think the court was justified in telling the jury that the instructions to Colvin, with relation to drawing the unexecuted will of 1860, should in any event be regarded as affording “ very considerable light ” upon the question of the testator’s intentions. So far as the will in question varied from the draft, or so far as that part of the instructions which related to the heirs of Jeremiah affected the case, the contestants had the advantage of it under this charge. We therefore think there was no error in this portion of the charge, either considered with reference to the refusal of the request, or considered affirmatively with reference to the instructions the court did give the jury. ^
III. 1. The court refused to permit the party to be inquired of whether it was not Ms apprehension that Wood would testify in a particular manner which induced him to discharge Wood from further attendance, on his behalf, as a witness. It is not claimed that the witness was concealed. He was merely discharged, and after-wards summoned and examined by the other party. We think no error can be based upon this ruling.
2. Nor do we think that the refusal of the court to permit Willard, after he returned and corrected a point in his testimony, to be re-cross-examined except strictly upon the point corrected, can be treated as a ruling upon a question of law. In the opinion of the majority of the court, it was entirely in the discretion of the judge [161]*161whether the cross-examination should he thus limited or not; and in the opinion of other members of the court the question was improper, because it called the attention of the witness to no single point in his testimony in the probate court, but'to the whole collectively, and assumed that there was a contradiction between the testimony of the witness then and in the county court.
3. The question allowed to be put on cross-examination to Dr. Allen is objectionable, because it assumes a state of facts upon which no medical or expert opinion could be based. Dr. Allen seems to have so understood it, and declined to give any such professional opinion, but replied in substance : “ I must understand from your question that the man was able to make a will.” The whole matter stands as if the question was unanswered, and the propriety of the question, as the correlative of the one asked on the examination in chief, need not be considered.
IV. 1. The contestants except to the refusal of the court to tell the jury, in accordance with the third and fourth requests, that if his wife and the great-grandchildren, Stukely, Maynard, and Flora J. and Mary E. Maranville, who are all legatees, would have been omitted in the will by the testator, without motive, but for the promptings and suggestions of others, they would be authorized to infer testamentary incapacity. The main evidence upon which this request is founded is the testimony to the effect that some one said to the testator, when he was giving his instructions for the drawing of his will, “ you must not forget Stukely and the little ones,” and he said he had not, and remembered them with the same amount of property he had set apart for them in the unexecuted draft; and the testimony of another witness that his wife who was present said to him that he must not forget Stukely, and he . replied, “ I must not forget my wife.” It is not clear that any one used this language with reference to any supposed lack of memory. It seems rather to have been used as an-expression, on the part of the heirs who were present, of their desire that these little ones should be remembered with a bequest. We think the evidence that they would have been forgotten is exceedingly slight and inferential. There is other evidence of conversation between the testator and the scrivener, and [162]*162with the wife as to her legacy, but it adds very little, if anything, to that mentioned. That a legacy is made which would not have been thought of hut for the suggestion of another does not necessarily prove incapacity. It might 'occur with the strongest mind in the vigor of youth and health. The fact that such suggestions were made is proper evidence to consider with other circumstances upon the question of capacity. The court did tell the jury, in response to the second request, that the testator must have been capable, without prompting, of collecting and retaining in his mind long enough to form a rational judgment upon them, the amount and condition of his estate, the names and number of those having claims upon him, their relative merits and necessities, and what he had before done for each ; in short, that “ he must have been capable of recollecting the full state of all his affairs, and of weighing the just merits and demerits of those who belonged to him, by remembering all and forgetting none subsequently properly explaining and qualifying this expression so as not to fix a standard of capacity equal to the transactions of an extensive or complicated business. We do not think that the contestants were entitled, in addition to this, to an application of this rule to a supposed omission of particular individuals which the jury-might find, would have been made but for the prompting of others. To say to the jury that, from this scrap of evidence, they might infer that some one would have been forgotten, and that from this inference they might infer testamentary incapacity, and to make this the subject of a distinct separate submission to the jury, would have been giving this evidence a very undue prominence. It would have been more becoming in the argument than in the charge of the court to the jury. We think that it was enough that this evidence was given the jury, with other surrounding circumstances, to be weighed on the main question.
2. For somewhat similar reasons, we think the court was right in refusing the ninth request, in which the contestants had collated certain conceded and certain disputed facts, and, isolating them from others which would affect their force, asked the court to say to the jury, that they might infer undue influence from them if found. The court properly explained to the jury what would amount to undue [163]*163influence, and called tlie attention of the jury to the different classes of testimony tending to show it, and left it for them to say how the fact was. It was not the duty of the court to isolate a part of the case from the other facts which affected it, and make this unreal case the subject of one separate branch of his charge. All the matters named in the ninth request, namély, the age of the testator, his infirmity, the nature of his malady, the fairness of the will, the effects of undue importunity, the circumstances under which the will was made, were called to the attention of the jury, and they were left to decide the question of undue influence in view of all the facts together. The court was not bound to tell the jury just how much evidence would be sufficient to sustain a verdict upon the ground of undue influence. Had no other facts appeared in the case qualifying those named in the ninth request, it might have been error for the court to refuse to charge as therein requested. The other exceptions saved on the trial were abandoned in this court.
The result is, the judgment' of the county court is affirmed, and ordered to be certified to the probate court.
As to value of testimony of attesting witnesses, see note (1,) Burrows v. Lock, 10 Vesey, (Sumner’s Edition,) p. 476.