
    In re HACKETT’S ESTATE HACKETT et al., Respondents, v. HACKETT, Appellant.
    (145 N. W. 437.)
    1. Wills — Contest—Testamentary Capacity — Sufficiency oí Evidence.
    Evidence in a will contest held insufficient to support a finding that, at the time of execution of a will, testatrix was of unsound mind.
    2. Wills — Contest—Submission of Issues to Jury — Advisory Verdict.
    A verdict in a will contest is merely advisory to the court.
    3. Wills — Testamentary Capacity — Physical Weakness.
    It does not necessarily follow that, because testatrix was ■physically weak and frail at time of execution of the will, she was of unsound mind and memory.
    
      4. Evidence — Opinion Evidence — Testamentary Capacity — Weight.
    Where the children of testatrix were about evenly divided in testifying, pro and con, as to her testamentary capacity, held, that non-expert opinions of this character have but little, if any weight, except in so far as they are based on the surrounding facts and circumstances warranting such opinions.
    (Opinion filed February 14, 1914.)
    Appeal from Circuit Court, Clay County. Hon. Robert B. Tripp, Judge.
    Application for the probate of the will of Jane Hackett. From a judgment for contestants, Elmer E. Blackett and others, and from an order denying a new trial, Eugene Hackett appeals.
    Reversed and remanded.
    
      Payne & Olson, and W. O. Knight, for Appelant.
    The testimony is entirely uncontradicted, and shows a strong and rational mind.
    All the testimony submitted 'by contestants is weak, for the reason that all the witnesses are directly interested in the result of the suit, except Carl Rasmussen, and he had been the hired man of one of the contestant’s witnesses; and for the further reason that ■the testimony of these witnesses is contradicted from within their own testimony, and positively contradicted by the testimony of disinterested wetnesses, and by the testimony of witnesses interested against their own testimony.
    As appears from' the record, all the contestant’s witnesses, except two, are sons and daughters, or in case of Mrs. Albert Hackett, a daughter-in-law of the decedent, and directly interested in the result of the suit.
    There is almost a total lack -of any competent or worthy evidence of incapacity of the testatrix, Jane Hackett, to make the will in question, in that the evidence of mental incapacity of the testatrix consists substantially of this only: That the testatrix had a palsy or paralysis of the arm and a shuffle -in her walk, was weak, and, in substance, would frequently 'start a conversation on one subject, then change to-another subject, then -goi back to the first, or repeated; and -on this were- predicated the -opinions -of contestant’s witnesses' as ¡to the mental capacity of the testatrix. All -this testimony furnishes no evidence of want of -testamentary capacity, and- tli-e opinions -based thereon are equally valueless.
    
      In all the matters related by plaintiff’s witnesses, as set forth above, there is not -a syllable of testimony that is inconsistent with sanity. Blackman v. Andrew's, 150 Mich. 322, 114 N. W. 219; U.effingwell v. Bettinghouse et al., 151.
    If this will is to be set aside on the evidence produced in this case, the decision of the court is founded only on an inference of weakness rtf mind because of evidence of some 'bodily weakness. Non-experts- should not be permitted to give their opinions unless they first state some facts which would tend to 'show want of testamentary capacity. Burney v. Torrey 100 Ala. 157, 46- Am. St. Rps. 33; Prenti-s v. Bates, 88 Mich. 557, 17 U. R. A. 494; Cyc. Vol. 40, P. 1038; Gardner, Wills, Sec. 50; Underhill, Wills, Sec. 102; O’Connor v. .Madison, 98 Mich. 185, 57 N. W. 105.
    Inability to transact ordinary -business is not evidence of want of testamentary capacity, and the cases cited in the preceding assignment of error are in point here.
    IN REBUY.
    It i's a salutary rule that requires a lay witness to suppo-n his opinion by relating some acts -or appearance of the testatrix indicative of incompetency before giving his conclusion that she is unsound in mind, and that measures the weight of the opinion by the facts related. Graham v. Deuterman (111.) 75 N. E. 4809 Graham v. Deuterman, 244 111. 124, 91 N. E. 61; Wi'spman v. Gouldsberry (Ind. App.) 91 N. E., 616; Grill v. O’Dell, (Md.) 77 Atl. 984; McConnell v. Woodworth (Mich), 127 N. W. 808; Carlisle v. Atchley (Ala.) 51 So-. 798; State v. Ueehman, 2 S. D. 171, 49 N. W. 3; Sage v. State, 91 Ind. 141; Graham v. Deuterman et al., 91 N. E. 61.
    In this case the right hand and arm and right leg of Jane Hackett were shaking and palsied, but there was no testimony of any value that this physical infirmity affected her mind. Courts have often declared the futility of inferences of mental incapacity from- bodily weakness. Graham v. Deuterman (Ills.) 75 N. E-480; Manatt v. Scott 106 Iowa, 203, 76 N. W., 717, 61 Am. St. Rep. 293; Hall v. Perry 87 Me. 569, 33 Atl. 160, 47 Am. St. Rep. 352; Sevening v. Smith (la.) 133 N. W. 1081; Speer v. Speer, (la.) 123 N. W. 176; Salinas v. Garcia, (Tex. 'Civ. App-.) 135 S. W. 588.'
    
      
      John L. Jolley, and Bogue & Bogue, for Respondents.
    The verdict of a jury on issues submitted to them in an equity case is not conclusive, but will generally be adopted. Humphreys v. Ward, 74 N. C. 874; Orgain v. Ramsey, 22 Tenn., 580.
    The same general rules involved apply alike to wills and deeds. Miller v. Wills, 28 S. 'E. 337; McDaniel v.. Marygold, 65 Am. Dec. 786.
    The findings are sustained by a preponderance of the evidence. The necessity for opinion evidence is based upon the fact that the elements forming the basis of the opinion cannot be accurately, fully and intelligently presented to the jury or the court.
    The evidence is amply sufficient to sustain the findings of the jury and court, and so> strong and so persuasive is the evidence, when it is considered in the light of all the circumstances of the case that any other finding than that of the jury and the court would be error and a denial of justice. Corson’s Estate (S. D.), 135 N. W. 666; Davis v. Davis (S. D.) 137, N. W. 283; In re Walker’s Will (la.), 128 N. W., 387; Glass v. Glass, 127 Iowa, 646; 103 N. W. 1013; Delafield v. Parish, 25 N. Y., 1; 'Coleman v. Robertson, 17 Ala., 84. “A person possessed of sufficient mental capacity to attend to his ordinary business is capable of making a valid will.” Barnes v. Barnes, 66 Maine, 286; In re Glesspin’s Will, 26 N. J. Eq., 523. Testamentary incapacity does not necessarily presuppose the existence of insanity. Weakness of intellect from extreme age, from great bodily infirmity or from intemperance to the extent of disqualifying one from knowing or appreciating the nature, effect and consequences of the acts he is engaged in amounts to testamentary incapacity. Hudson v. Hughhan, 56 Kans., X52; 42 Pac. 701; Leech v. Leech, 5 Clark, 86 (Pa.)
   McCOY, J.

This -action involves the contest of the will of one Jane Hackett, who died October, 1911, 'having theretofore, on the 8th day of September, 1908, made w'hat purported to be her last will and testament. When this will was -offered for probate certain of 'her children and heirs and devisees under said will appeared and entered written objections, and contested the probate of said will upon the ground, among others, that at the time of the execution of said will said Jane Hackett was not of sound mind, and was- not -competent to malee a last will and testament. The county court, after hearing, by order and judgment admitted said will to-probate. From- the order and judgment admitting said will to probate -contestants appealed to the -circuit- court, where a trial de novo wa-s had before the court and a jury. Verdict was rendered finding that said decedent, at the time o-f -the execution of said will, was not -of sound mind, -and was not competent to- make a last will. Thereafter, and before the makings o-f findings by the trial court, the appellant .-moved the court -to disregard the findings of the jury and- to make findings favorable to- appellant. The motion was overruled- an-cl denied, and appellant excepted to- such ruling. .The c-o-urt then adopted the findings of -the jury and rendered judgment disallowing the p-ro-bate of said will, from which judgment the appellant, Eugene Hackett, has taken -an appeal.

The vital question- to be determined is whether or not the said finding of the j-ury, as adopted and- approved by the findings of the -court, is opposed by the weight or clear preponderance of -the testimony. The verdict was adviso-ry to- the court o-nly. Shaw v. Shaw, 28 S. D. 221, 133 N. W. 292. We are of the opinion that the -clear preponderance of the evidence is against said findings. The evidence -on the trial was quite voluminous, and it will serve no useful purpose, and .it wo-ul-d he impracticable, to herein set -the same out in- full. Evidence which is practically undisputed shows the following facts: That the will in question was written and executed on th-e- afternoon of September 8, 1908, at the family home of Jane Hackett, who was then a widow, her hus'band having died several years prior thereto; that -about a year previous to the execution of the will she had suffered a stroke of partial paralysis, -and frc-m that time -o-n until a very short time before her death her physical condition was weak and frail; before and after the execution of the will, her locomotion was- partly impeded, but sh-e attended to her household duties, sweeping floors, washing dishes, making beds, and to some extent superintended her -farm, walking over the' farm, receiving t-he proceeds, -and paying the same -out in the ordinaiy course of business; that -she then resided with her t-wo- unmarried sons, Eugene and- Arthur, and one unmarried daughter, the oldest of whom w-as about 25 years of age; that she had- other married children living in the neighborhood, w'ho-m she visited from- time to time, after the stroke -o-f paralysis; that her physical state of health, from shortly after the stroke of paralysis until about two months before her death, remained generally ,the same; on the afternoon in question she sent for an attorney to write the will, and also sent for a neighbor to witness., the same; it does not appear that she had ever had any previous conversation with any of the members of her family concerning the contents of the will she was about to execute — no mention of a will other than that she intended to make one; when, the attorney- ap-' peared she said, “I sent for you to draw my will.” The attorney said, “How do you wish to have it drawn?” she then directed to the minutest detail the contents of the will; sometimes -she was-, sitting in a rocking -chair, and sometimes walking about the room while the will was being prepared. The attorney first made a rough -draft before making out the will: Her property consisted of a i6o-acre farm and farm, personal property and some money; she had been the mother -o-f fifteen children-, some of whom were deceased, having left children, the grandchildren of decedent; she first directed the attorney to draw the will, giving $100 to- each son, and $50 -to each daughter, and the residue to Eugene; she conversed with neighbor Mayer, whom she 'had called in to witness the will, concerning the provisions of the will; then she said, “I will change that. I will give the sons two hundred dollars each, and the daughters $100 each, and the grandchildren $50 each, and to Eugene the remainder;” -she stated that she originally had intended to divide the farm equally between, Eugene and Arthur, but that Arthur had not done as he should; that Eugene had been good to her, and that she thought he would take good care of her so long as she lived. There is no- evidence of any character tending to show undue influence. The surrounding facts and -circumstances strongly tend to show that Jane Hackett was of sound and disposing mind and memory at the time she -executed said will. It does not. necessarily follow that, because one is physically weak and frail, one is of unsound mind and memory. Oxford v. Hopson, 73, Ark. 170, 83 S. W. 942; Paulus v. Reed, 121 Iowa, 224, 96 N. W. 757; Tichy v. Simecek; 4 Neb. (Unof.) 597, 95 N. W. 629. The living children of decedent 'were -arrayed about' evenly on the two sides'of-this controversy;'' those in favor of probating the will were, of the opinion that -her mind was bright and perfect when the-will was executed; .those, opposed to.the,probating were of the opinion that she- was- not' of disposing -mind and memory. Nonexpert opinions of this character have -but little, if any weight, except in as far as they are based on the surrounding facts and circumstances warranting such opinions. Auld v. Cathro, 20 N. D. 461, 128 N. W. 1025, 32 L. R. A. (N. S.) 71, Ann. Cas. 1913A, 90; Davis v. Davis, 29 S. D. 420, 137 N. W. 283. The opinions expressed by the witnesses for respondents seem to be generally mere naked opinion, not based on substantial reasons therefor; the faots that decedent shed tears when conversing with her children and when parting with them, or that she at such times talked incoherently, is no proof that at the time she executed the will she was not of sound and 'disposing mind and memory. The motion to disregard the verdict of the jury and' to' make findings for appellant should have been granted.

The judgment appealed from is reversed, and the cause remanded for further proceedings in consonance herewith. This court, were it so empowered, would 'direct final judgment to be entered in favor of appellant.  