Sykes, J.,
delivered filie opinion of the court.
Ben L, Ward left surviving him at his death his wife, Mrs. Sallie Ward, and no children. By will he devised to his wife a life interest in a part of his real estate, with [705] remainder to some nieces and nephews. The balance of his real estate was devised to these same nieces and nephews. After Mr. Ward’s death the will was offered for probate, and a caveat was filed against its probation by Mrs. Ward, the widow, and an issue of devisavit vel non was made. The two questions presented under this issue were lack of testamentary capacity and undue influence. These two issues were submitted to the jury, and a verdict returned in favor of the contestants.
It is first contended by the appellants, proponents of the will, that a peremptory instruction should have been given in their favor on both of these issues. After a careful examination of the testimony we are of the opinion that the jury could ha,ve found in favor of either side on either of these issues, and that on both issues it was a question of fact for the jury.
The will was prepared by Hon. Percy L. Guyton in the sickroom of the testator. It was signed by the testator and by N. D. Skelton and L. S. Prevost as witnesses. The proponents failed to introduce either Skelton or Prevost to prove the due execution of the will. Both of these witnesses were placed upon the stand by the contestants. The substance of their testimony is that they went to the home of the testator at the request of his brother, R. S. Ward; that Mr. Guyton requested them to sign the will as witnesses, and that they did so; that they were not requested to sign it by the testator, but signed it in his presence. They then testified that in their opinion the testator did not have sufficient testamentary capacity to make a will.
It is contended by the appellee that a peremptory instruction in her favor should have been given in the lower court, because the contestants failed to prove by the two witnesses to the will the signing, publication, and attestation as required by section 1991, Code of 1906 (section 1656, Hemingway’s Code). This section provides that the due execution of the will must be proved by at least one of the subscribing witnesses, if alive and a resident in the state, and competent to testify.
[706] The case of Martin v. Perkins, 56 Miss. 204, is relied upon by the appellee. It is held in that case that the subscribing witnesses to the will must be examined, that they are the only competent witnesses to the signing, publication, and attestation, but that others are equally competent to speak of the mental condition of the testator at the time of the making of the will. t
From an examination of the entire testimony of these two attesting witnesses its effect is that the testator signed the will in their presence, and that they were requested to sign it as witnesses by Mr. Guyton, who drafted the will, which request was made in the presence of Mr. Ward, which in effect was really the request of the testator, provided he possessed sufficient testamentary capacity. The case of Martin v. Perkins, also held that the capacity or incapacity of the testator may be proved by other than the attesting witnesses to the will. The attesting witnesses to the will may express an opinion as an expert as to the capacity of the testator, while other nonexpert witnesses are confined to a narrative of facts and the conduct of the testator, and base their opinion upon these facts.
The rule that the due execution of a will may only be proved by one of the two attesting witnesses thereto has been modified in this state. In the case of Helm v. Sheeks, 116 Miss. 726, 77 So. 820, it was held that it Avas the duty of the proponent of the will to produce one of the subscribing witnesses, if Avithin the jurisdiction of the court, or to take his deposition if that could be done; that the testimony of the subscribing witness is the best evidence, but if these witnesses cannot be produced, or if produced will not testify to the execution of the will, or are not able to recall the facts, then secondary evidence may be introduced. To the same effect is Williams v. Moorehead, 116 Miss. 653, 77 So. 658.
In this case the proponents should have introduced these two attesting witnesses, Avho were within the jurisdiction of the court, and as a matter of fact Avere witnesses present [707] at the trial. Their failure to introduce them, however, was corrected by' the contestant’s introducing them.
The testimony of Mr. Guyton was to the effect that the will was properly executed, and that the testator had sufficient testamentary capacity to make a will. Under this testimony the contestants were not entitled to a peremptory instruction.
Mrs. Sallie Ward, the widow, over the objection of the proponents, testified that she had not been guilty of any misconduct as the wife of the testator, and that she had not admitted to the testator that she had written some letters, or been guilty of any improper conduct. She testified that she had been a true wife, and had nursed- and waited upon her husband during his illness. She also testified to an irrelevant matter about some money and personal property being turned over or taken by the appellant, E. S. Ward, during the lifetime of her husband, and of the visits of the appellant to her husband, and that after these visits her husband was not as affectionate toward her as he Avas before; that she Avas present at the house when Mr. Guyton was there, but did not know what was done at that time, because it was kept a secret from her. She testified to other conferences in the house between her husband, appellant, and John Ward, Avhich she was not permitted to attend. This testimony directly tended to sustain the contention of the contestants upon the question of the undue influence exerted upon the testator by the appellant, E. S. Ward, and consequently Avas to establish her claim as the widoAV against the estate of the deceased, and was not admissible. Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L. R. A. (N. S.) 187, Ann. Cas. 1916A, 1051; Graham v. Taylor, 117 Miss 736, 78 So. 706; Cooper v. Bell, 114 Miss. 766, 75 So. 767; Helm v. Sheeks, 116 Miss. 726, 77 So. 820.
There Avas a great deal of incompetent testimony intro-ducted by both sides about matters in no way concerning the issues. The two questions for the jury to decide were: First, whether the testator had sufficient testamentary [708] capacity to make the will; second, whether or not he was so undnly influenced by the appellant, E. S. Ward, that his will was subdued and subordinated by the will of R S. Ward and the free agency of his mind thereby taken away, and the instrument really made to speak the will of E. S. Ward. A great many nonexpert witnesses in the case were permitted to express their opinion as to the capacity or lack of capacity of the testator without first stating the facts upon which this opinion was based. This court has repeatedly held this to be error. Martin v. Perkins, supra. This rule is aptly stated in the opinion in Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L. R. A. 102, as follows:
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Sykes, J.,
delivered filie opinion of the court.
Ben L, Ward left surviving him at his death his wife, Mrs. Sallie Ward, and no children. By will he devised to his wife a life interest in a part of his real estate, with [705] remainder to some nieces and nephews. The balance of his real estate was devised to these same nieces and nephews. After Mr. Ward’s death the will was offered for probate, and a caveat was filed against its probation by Mrs. Ward, the widow, and an issue of devisavit vel non was made. The two questions presented under this issue were lack of testamentary capacity and undue influence. These two issues were submitted to the jury, and a verdict returned in favor of the contestants.
It is first contended by the appellants, proponents of the will, that a peremptory instruction should have been given in their favor on both of these issues. After a careful examination of the testimony we are of the opinion that the jury could ha,ve found in favor of either side on either of these issues, and that on both issues it was a question of fact for the jury.
The will was prepared by Hon. Percy L. Guyton in the sickroom of the testator. It was signed by the testator and by N. D. Skelton and L. S. Prevost as witnesses. The proponents failed to introduce either Skelton or Prevost to prove the due execution of the will. Both of these witnesses were placed upon the stand by the contestants. The substance of their testimony is that they went to the home of the testator at the request of his brother, R. S. Ward; that Mr. Guyton requested them to sign the will as witnesses, and that they did so; that they were not requested to sign it by the testator, but signed it in his presence. They then testified that in their opinion the testator did not have sufficient testamentary capacity to make a will.
It is contended by the appellee that a peremptory instruction in her favor should have been given in the lower court, because the contestants failed to prove by the two witnesses to the will the signing, publication, and attestation as required by section 1991, Code of 1906 (section 1656, Hemingway’s Code). This section provides that the due execution of the will must be proved by at least one of the subscribing witnesses, if alive and a resident in the state, and competent to testify.
[706] The case of Martin v. Perkins, 56 Miss. 204, is relied upon by the appellee. It is held in that case that the subscribing witnesses to the will must be examined, that they are the only competent witnesses to the signing, publication, and attestation, but that others are equally competent to speak of the mental condition of the testator at the time of the making of the will. t
From an examination of the entire testimony of these two attesting witnesses its effect is that the testator signed the will in their presence, and that they were requested to sign it as witnesses by Mr. Guyton, who drafted the will, which request was made in the presence of Mr. Ward, which in effect was really the request of the testator, provided he possessed sufficient testamentary capacity. The case of Martin v. Perkins, also held that the capacity or incapacity of the testator may be proved by other than the attesting witnesses to the will. The attesting witnesses to the will may express an opinion as an expert as to the capacity of the testator, while other nonexpert witnesses are confined to a narrative of facts and the conduct of the testator, and base their opinion upon these facts.
The rule that the due execution of a will may only be proved by one of the two attesting witnesses thereto has been modified in this state. In the case of Helm v. Sheeks, 116 Miss. 726, 77 So. 820, it was held that it Avas the duty of the proponent of the will to produce one of the subscribing witnesses, if Avithin the jurisdiction of the court, or to take his deposition if that could be done; that the testimony of the subscribing witness is the best evidence, but if these witnesses cannot be produced, or if produced will not testify to the execution of the will, or are not able to recall the facts, then secondary evidence may be introduced. To the same effect is Williams v. Moorehead, 116 Miss. 653, 77 So. 658.
In this case the proponents should have introduced these two attesting witnesses, Avho were within the jurisdiction of the court, and as a matter of fact Avere witnesses present [707] at the trial. Their failure to introduce them, however, was corrected by' the contestant’s introducing them.
The testimony of Mr. Guyton was to the effect that the will was properly executed, and that the testator had sufficient testamentary capacity to make a will. Under this testimony the contestants were not entitled to a peremptory instruction.
Mrs. Sallie Ward, the widow, over the objection of the proponents, testified that she had not been guilty of any misconduct as the wife of the testator, and that she had not admitted to the testator that she had written some letters, or been guilty of any improper conduct. She testified that she had been a true wife, and had nursed- and waited upon her husband during his illness. She also testified to an irrelevant matter about some money and personal property being turned over or taken by the appellant, E. S. Ward, during the lifetime of her husband, and of the visits of the appellant to her husband, and that after these visits her husband was not as affectionate toward her as he Avas before; that she Avas present at the house when Mr. Guyton was there, but did not know what was done at that time, because it was kept a secret from her. She testified to other conferences in the house between her husband, appellant, and John Ward, Avhich she was not permitted to attend. This testimony directly tended to sustain the contention of the contestants upon the question of the undue influence exerted upon the testator by the appellant, E. S. Ward, and consequently Avas to establish her claim as the widoAV against the estate of the deceased, and was not admissible. Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L. R. A. (N. S.) 187, Ann. Cas. 1916A, 1051; Graham v. Taylor, 117 Miss 736, 78 So. 706; Cooper v. Bell, 114 Miss. 766, 75 So. 767; Helm v. Sheeks, 116 Miss. 726, 77 So. 820.
There Avas a great deal of incompetent testimony intro-ducted by both sides about matters in no way concerning the issues. The two questions for the jury to decide were: First, whether the testator had sufficient testamentary [708] capacity to make the will; second, whether or not he was so undnly influenced by the appellant, E. S. Ward, that his will was subdued and subordinated by the will of R S. Ward and the free agency of his mind thereby taken away, and the instrument really made to speak the will of E. S. Ward. A great many nonexpert witnesses in the case were permitted to express their opinion as to the capacity or lack of capacity of the testator without first stating the facts upon which this opinion was based. This court has repeatedly held this to be error. Martin v. Perkins, supra. This rule is aptly stated in the opinion in Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L. R. A. 102, as follows:
“With respect to the rule as to allowing non-experts to give their opinion as to the soundness of mind of the subject of inquiry, the true view is set forth in Wood v. State, 58 Miss, at page 742. They should testify as to the facts, acts, declarations, etc., oí the subject of inquiry, and then give their opinions based upon these facts.”
Twenty-six instructions were given the jury in favor of the contestants. Some of which are absolutely erroneous, and a number of others are inaccurately drawn. There is a great deal of unnecessary repetition in these instructions. We shall point out a few of the glaring errors in some of them. Instruction No. 4 is as follows:
“The court instructs the jury that the existence of confidential .relations between Ben L. Ward, the principal, and the beneficiaries under the will, coupled with activity on the part of the latter in and about the execution and preparation of the will; such initiation for the preparation of the will, or participation in such preparation, employing the draftsman, selecting the witnesses, excluding persons from the testator at or about the time of the execution of the will, concealing the making of the will after it was made, and the like, will raise the presumption of undue influence and cast on them the burden of showing that it was not induced by coercion or fraud on their part directly or indirectly.”
[709] Tliis instruction is in error in assuming that confidential relations existed between Ben L. Ward, the testator, and the beneficiaries in the will, his nieces and nephews. Save the fact that they are his nieces and nephews there is no testimony Avhatever to shoAV any such relation. His only confidants and advisers, as shoAvn by the testimony, Avere his brothers, Bob and John, especially Bob, the appellant. Neither is there any testimony tending to show that these two men were in any wise authorized to act in this matter for the beneficiaries. Neither Avas there any activity Avhatever, and neither did the beneficiaries in any Avay have anything to do with the preparation of the will. If any one actively participated in this preparation it was Bob Ward. Even if this instruction Avere draAvn with reference to the conduct of Bob Ward, the appellant, instead of the beneficiaries, it would be error to assume as true certain disputed facts, namely, concealing the making of the will. These facts alone would not be sufficient to establish undue influence on the part of Bob Ward, but Avould be consistent with the view that he was merely assisting his brother at his request in order that the brother might prepare his will. From these facts alone the jury would not be Avarranted in finding that the mind of the testator was dominated and subdued by that of Bob Ward, and that the Avill was really that of Bob Ward instead of the testator.
The concluding part of instruction No. 8 reads as follows :
“And that he, the said decedent, Avas Avholly uninfluenced or in any manner guided or directed about or concerning the signing, publication, or securing of any attestation thereof by any person whomsoever, otherAAdse the jury cannot return a verdict for the proponent.”
By this instruction the jury were authorized to return a verdict for the contestants if they believed that the testator Avas in any manner guided or directed about the preparation of his Avill. In other words, though the will may have expressed the intentions of the testator, yet if [710] he was in any way assisted in its preparation by any one he was thereby unduly influenced. This, of course, is error.1 A testator has the right to be directed and assisted in the preparation of his will. . Oftentimes a lawyer is consulted as to its legal effect and drafts the will. He is entitled to any aid or direction that he may desire. The only requirement is that the will be that of the testator. It is not the law that a will is void because the testator is partially influenced by any one in the disposition of his property. It is undue influence that vitiates a will. Burnett v. Smith, 93 Miss. 566, 47 So. 117; Gathings et al. v. Howard, 84 So. 240; Scally et al. v. Wardlaw et al., 86 So. 625.
Instructions Nos. 9, 19, and 26 are as follows:
“No. 9. Where a will is unreasonable in its provisions and inconsistent with the duties of the testator, with reference to his property and family, this, of itself, will impose on those claiming under the instrument the necessity of giving some reasonable explanation of the unnatural character of the will, and it devolved upon the proponents in this case to give a reasonable explanation of the unnatural character of the will.”
“No. 19. The court instructs the jury for Mrs. Ben L. Ward, the contestant in this case, that the testator had the right and power to dispose of his estate by will according to his said condition, not contrary to law, yet if they believe from the evidence that the will now offered in evidence is unreasonable and inconsistent with his duty, with reference to his property and family, then the proponents of the will must give some reasonable explanation of its unnatural character, and if they fail so to do from the evidence they will find against the will.”
“No. 26. The court instructs the jury for Mrs. Ben L. Ward, the contestant, that if they believe the proposed will, offered for probate, is unreasonable in its prqvisions, and inconsistent with the duties of the testator with reference to his property and family, this of itself will impose [711] upon those claiming under the instrument the necessity of giving some reasonable explanation of the unnatural character of the will.”
In this case the testator devised certain of his property to his nieces and nephews, and devised to his wife a life estate in certain property, with remainder to these nieces and nephews. It was error to instruct the jury as a matter of law that this will is unreasonable in its provisions. It was a question of fact for the jury to say whether or not under the testimony they believed this to be an unreasonable will. Even if the jury believed the will to be unreasonable, this of itself is not sufficient to set it aside or to cast upon the proponents the duty of giving a reasonable explanation for its unnatural character. It is only when there is other testimony tending to show either undue influence or lack of testamentary capacity that the jiiry is authorized to consider the terms of the will, and the unreasonable terms are only one of the circumstances to be considered in connection with the other testimony — from all of which the jury is to decide whether or not the testator was either unduly influenced or lacked sufficient testamentary capacity to make a will. King v. Rowan, 82 Miss. 1, 34 So. 325; Jamison v. Jamison, 96 Miss. 288, 51 So. 130; Scally v. Wardlaw, 86 So. 625.
Reversed and remanded.