Manning J.:
The relevancy of evidence depends on the issue to be-tried. Some cases admit of a much wider range than, others. Where the motive of a person for doing an act out of the ordinary course of events is a legitimate subject of inquiry, under the issue, all the surrounding circumstances and influences that might have contributed to or caused such motive may be inquired into.
The plaintiffs in error, Mrs. White and Mrs. Blood, are children of Mudge, the testator. His only children, it is to be presumed, as no mention is made of any others. [157]*157'Bailey, the defendant in error, and to whom Mudge gave all his property, was in no way related, to him. The testator left White’s family, in which he had been residing, and went to live with Bailey some two, three or four months, certainly not longer than four months, before his death; and while at Bailey’s, and on the l'8th day of August, 1858, made his will, and died in two or three days thereafter.
By direction of the Circuit Court an issue was made in that Court to determine the following facts: 1st. The domicil of Mudge at the time of his death: 2d. Whether the alleged will was his last will and testament, and 3d. Whether he was of a sound and disposing mind at the -time the same was made, and was not under the iindue influence of Bailey or some other person at the time.
It was on the trial of this issue that the several exceptions to the admission or rejection Lof evidence we are called to pass upon were taken.
The simple fact that the testator had by his will disinherited his children, and had given his property to one not related to him by blood or marriage, is so repugnant to parental feeling, and out of the course of things, as to excite more or less suspicion in the mind that all was not right. And when in connection with this unnatural ■act of the testator, it appears that he was an old man, infirm in health, and had but a few months previously left the house of a daughter and gone to live with Bailey,' at whose house the will was made but two or three days before his death, this suspicion is so far strengthened by these additional circumstances as to give it the semblance of reality. Altogether they would, and unexplained should, have more or less influence with the jury: The following questions or others of a like character would most likely be found suggesting themselves to the mind; Why did the testator disinherit his children? Why did he deave his daughter’s house and go to live with the appellee [158]*158but a short time before his death? Why did he put off' the making of his will until a day or two before lie died?' Were these acts his — the offspring of his own free volition? Or were they the production of artifice and cunning, practiced on an old man by some one behind the curtain ? And, if we are to judge of the tree by its fruit, who, as the event has shown, had a deeper interest in the fruit the tree has borne than the appellee?
Now aE the questions put and answered, to which exceptions were taken, elicited facts tending to answer these suggestions, and to remove the influence the untoward circumstances we have stated would, unexplained, have had on the jury; or to prove the sound and disposing mind of the testator. The object of most of the questions was. to prove the ill-treatment of the testator in' his old age by-his children. And although a wide range was allowed for that purpose in some of the questions put, we do not think the Court erred therein. Men’s minds are so differently constituted and operated on, that what will influence the action of one wiU frequently have no influence on another. Hence it was sufficient to warrant the question, if the thing sought to be proved might have contributed to alienate the testator’s parental feelings, and to create in his mind a dislike for his children. Such a state of mind would furnish a motive for giving .his property to. another, and repel all suspicion of undue influence.
' What we have said disposes of some fifteen exceptions; but there are others that we must notice separately.
One Doctor Blumerick, was examined as a witness for the plaintiffs in error. The Doctor testified that he knew the testator, and had doctored him at Mr. Blood’s, and. that he saw him frequently untü within two or three months before his death; that he first saw him about nine or nine and a half years before the trial, and then doctored him for inflamation of the lungs, connected with a pain, in the head; that he discovered lightness in the head;-, [159]*159that he often saiv him two or three years after that and talked with him, and that he appeared silly and would not pay him; that he sometimes rode with him in a buggy, and sometimes saw him on foot as he was coming to town or was going home; that sometimes when he saw him he would ask him to pay him for his medical services, and that he would not; and that he appeared like a silly old man; that he visited him at White’s about a year and a half before, and that his impression was that he was not sick, but forgetful, weak minded, and talked nonsense, and that he had not seen him since. The witness ’ was then asked: From what you saw, what was his (Mudge’s) mental capacity?
The question we think was properly excluded. It asked lor the doctor’s opinion of the mental capacity of the testator some two or three months before he made his will. Mental capacity for what? To make a will, for that was in issue. This is a question of law, and not of medical science. It is for the jury, under the instruction of the Court as to what is sufficient mental capacity to make a will, to decide on its existence or non-existence when the will was executed, from the facts testified to by the witness, and not from the witness’ opinion regarding such tacts. The jury, and not the witness, are to draw the conclusion from the facts stated by the witness. The opinion of a physician as to the existence of disease, or a particular malady, and its effect upon the mind, would 'be evidence. But a physician’s opinion regarding mental capacity generally, or the mental capacity necessary to make a will, is, in the eye of the law, no better than that of any other person.
A Doctor Allen was also examined as a witness for plaintiffs in error. After his examination, and after the plaintiffs in error, who were defendants in the Circuit Court, had examined their witnesses, and the plaintiff had closed his rebutting evidence, the doctor was recalled by the plain[160]*160tiffs in error, and asked the following question: Were there any symptoms of paralysis . about Luther Mudge ? Please state the appearance and effect upon Mudge of the nervousness you referred to in your former testimony. The questions being objected to were ruled out by the Court. They should have been asked the witness when he was on the stand and gave in his evidence, or at all events before the rebutting testimony was closed. It was discretionary with the Court, at that stage of the trial, under all the circumstances, to receive the evidence or not; and there' is nothing in the bill of exceptions showing the discretion was not wisely exercised.
Tne objection to Chubb . as a witness on the ground that he was surety on the appeal bond given by the defendant in error, was properly overruled by the Court. He was not a party to the appeal, nor was it prosecuted in whole or in part in his immediate and individual behalf: Comp. L. §4339.
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Manning J.:
The relevancy of evidence depends on the issue to be-tried. Some cases admit of a much wider range than, others. Where the motive of a person for doing an act out of the ordinary course of events is a legitimate subject of inquiry, under the issue, all the surrounding circumstances and influences that might have contributed to or caused such motive may be inquired into.
The plaintiffs in error, Mrs. White and Mrs. Blood, are children of Mudge, the testator. His only children, it is to be presumed, as no mention is made of any others. [157]*157'Bailey, the defendant in error, and to whom Mudge gave all his property, was in no way related, to him. The testator left White’s family, in which he had been residing, and went to live with Bailey some two, three or four months, certainly not longer than four months, before his death; and while at Bailey’s, and on the l'8th day of August, 1858, made his will, and died in two or three days thereafter.
By direction of the Circuit Court an issue was made in that Court to determine the following facts: 1st. The domicil of Mudge at the time of his death: 2d. Whether the alleged will was his last will and testament, and 3d. Whether he was of a sound and disposing mind at the -time the same was made, and was not under the iindue influence of Bailey or some other person at the time.
It was on the trial of this issue that the several exceptions to the admission or rejection Lof evidence we are called to pass upon were taken.
The simple fact that the testator had by his will disinherited his children, and had given his property to one not related to him by blood or marriage, is so repugnant to parental feeling, and out of the course of things, as to excite more or less suspicion in the mind that all was not right. And when in connection with this unnatural ■act of the testator, it appears that he was an old man, infirm in health, and had but a few months previously left the house of a daughter and gone to live with Bailey,' at whose house the will was made but two or three days before his death, this suspicion is so far strengthened by these additional circumstances as to give it the semblance of reality. Altogether they would, and unexplained should, have more or less influence with the jury: The following questions or others of a like character would most likely be found suggesting themselves to the mind; Why did the testator disinherit his children? Why did he deave his daughter’s house and go to live with the appellee [158]*158but a short time before his death? Why did he put off' the making of his will until a day or two before lie died?' Were these acts his — the offspring of his own free volition? Or were they the production of artifice and cunning, practiced on an old man by some one behind the curtain ? And, if we are to judge of the tree by its fruit, who, as the event has shown, had a deeper interest in the fruit the tree has borne than the appellee?
Now aE the questions put and answered, to which exceptions were taken, elicited facts tending to answer these suggestions, and to remove the influence the untoward circumstances we have stated would, unexplained, have had on the jury; or to prove the sound and disposing mind of the testator. The object of most of the questions was. to prove the ill-treatment of the testator in' his old age by-his children. And although a wide range was allowed for that purpose in some of the questions put, we do not think the Court erred therein. Men’s minds are so differently constituted and operated on, that what will influence the action of one wiU frequently have no influence on another. Hence it was sufficient to warrant the question, if the thing sought to be proved might have contributed to alienate the testator’s parental feelings, and to create in his mind a dislike for his children. Such a state of mind would furnish a motive for giving .his property to. another, and repel all suspicion of undue influence.
' What we have said disposes of some fifteen exceptions; but there are others that we must notice separately.
One Doctor Blumerick, was examined as a witness for the plaintiffs in error. The Doctor testified that he knew the testator, and had doctored him at Mr. Blood’s, and. that he saw him frequently untü within two or three months before his death; that he first saw him about nine or nine and a half years before the trial, and then doctored him for inflamation of the lungs, connected with a pain, in the head; that he discovered lightness in the head;-, [159]*159that he often saiv him two or three years after that and talked with him, and that he appeared silly and would not pay him; that he sometimes rode with him in a buggy, and sometimes saw him on foot as he was coming to town or was going home; that sometimes when he saw him he would ask him to pay him for his medical services, and that he would not; and that he appeared like a silly old man; that he visited him at White’s about a year and a half before, and that his impression was that he was not sick, but forgetful, weak minded, and talked nonsense, and that he had not seen him since. The witness ’ was then asked: From what you saw, what was his (Mudge’s) mental capacity?
The question we think was properly excluded. It asked lor the doctor’s opinion of the mental capacity of the testator some two or three months before he made his will. Mental capacity for what? To make a will, for that was in issue. This is a question of law, and not of medical science. It is for the jury, under the instruction of the Court as to what is sufficient mental capacity to make a will, to decide on its existence or non-existence when the will was executed, from the facts testified to by the witness, and not from the witness’ opinion regarding such tacts. The jury, and not the witness, are to draw the conclusion from the facts stated by the witness. The opinion of a physician as to the existence of disease, or a particular malady, and its effect upon the mind, would 'be evidence. But a physician’s opinion regarding mental capacity generally, or the mental capacity necessary to make a will, is, in the eye of the law, no better than that of any other person.
A Doctor Allen was also examined as a witness for plaintiffs in error. After his examination, and after the plaintiffs in error, who were defendants in the Circuit Court, had examined their witnesses, and the plaintiff had closed his rebutting evidence, the doctor was recalled by the plain[160]*160tiffs in error, and asked the following question: Were there any symptoms of paralysis . about Luther Mudge ? Please state the appearance and effect upon Mudge of the nervousness you referred to in your former testimony. The questions being objected to were ruled out by the Court. They should have been asked the witness when he was on the stand and gave in his evidence, or at all events before the rebutting testimony was closed. It was discretionary with the Court, at that stage of the trial, under all the circumstances, to receive the evidence or not; and there' is nothing in the bill of exceptions showing the discretion was not wisely exercised.
Tne objection to Chubb . as a witness on the ground that he was surety on the appeal bond given by the defendant in error, was properly overruled by the Court. He was not a party to the appeal, nor was it prosecuted in whole or in part in his immediate and individual behalf: Comp. L. §4339.
The only remaining question is, whether the verdict of the jury warrants the judgment of the Court admitting the will to probate. The jury found the will in question was the last will and testament of Luther Mudge deceased, and that at the time of executing it he was of a sound and disposing mind and memory, and capable of disposing of his property by will. But they did not find whether it was “made under undue influence from said Bailey or any other person.” They could not have found as they did, that the will in question was the last will and testament of Luther Mudge, without at the same time having found that it was made of his own free will and accord, and not under or in consequence of any Undue extraneous influence. All such influence is necessarily negatived in finding the will to be his will. And the law is too well settled to need discussion, that where the issue found necessarily negatives the one not found, the judgment will not be reversed: — Brooks v. Delrymple, 1 Mich. 145 ; Law v. Merrills, 6 Wend. 268.
[161]*161The judgment of the Circuit Court I think should, be 'affirmed, with costs.