
    Good v. Good.
    / In an issue devisnvit vel non where witnesses have testified as to the altered manner of the testator, his changed conduct to his family, his loss of memory, his inability to read or write or understand what was read to him, or to converse coherently, they may he permitted to express an opinion as to his testamentary capacity.
    In the above case, the plaintiff requested the court to charge that the burden of proof as to the testator’s capacity was upon the contestants. The court answered the request to charge as follows: “I think I have already charged you fully upon that subject.” No exception was taken to the portion of the charge of the court referred to. Held, that the answer to the plaintiff’s request was not error.
    An expert witness may express an opinion based on the testimony in chief of another expert, without reading the cross-examination, such testimony being in the nature of an hypothetical question.
    
      Feb. 13, 1889.
    Error, No. 397, Jan. T. 1889, to C. P. Chester Co., to review a judgment on a verdict for defendant on an issue •devisavit vel non, to determine the testamentary capacity of Palmer Good, wherein Francis Good and Lewis P. Good were plaintiffs, and Joel P. Good was defendant, at April T. 1887, No. 49. Green .and Clark, JJ., absent.
    The testator executed the paper purporting to be his will on June 6, 1885. He died on July 10, 1886.
    At the trial, witnesses were called by the plaintiff, to prove testamentary incapacity. Preliminary questions were asked to the following effect: Emily Kinsey testified that she had lived with Palmer Good for some six months prior to April 15, 1885. Louisa Turner testified that she lived next door to Palmer Good in the spring of 1885. Maria E. Good testified that she was the widow of Palmer Good. These witnesses were then asked the questions given below, the admission of which was assigned as error. The other witnesses named below testified as to the decedent’s altered manner, his changed conduct to his family, his loss of memory, inability to read or write or understand what was read or said to hitn, or to converse coherently or intelligently. Dr. Massey was examined as to his opinion based upon the testimony in chief of Dr. Stubbs, without reading the cross-examination.
    Emily Kinsey, a witness called by the defendant, was asked this question: “ Q. Would he, if a paper of over a page in length had been read to him, such as this will, have understood its effect?” Objected to, objection overruled and exception. [1]
    John E. Strode, a witness called by the defendant, was asked: il Q. State whether or not you ever observed any change in his mental condition; state what you saw.” Objected to, objection overruled and exception. [2]
    William Hughes, a witness called by the defendant, was asked: 11Q. Was he, taking your knowledge of him, up to the summer of 1885, which is the period we are speaking of, would he be able to have understood the force and effect of an ordinary will, without the legal expressions?” Objected to, objection overruled and exception. [3]
    Martin Maloney, a witness called by the defendant, was asked : “ Q. From what you have detailed to the jury as to what you have observed, and as to your conversation after he went to West Grove, was he, in your judgment, of sound mind?” Objected to, objection overruled and exception. [4]
    David P. Chambers, a witness called by the defendant, was asked: “ Q. Was he, in your opinion, of sound and disposing mind at the time this will was made?” Objected to, objection overruled and exception. [5]
    Louisa Turner, a witness called by the defendant, was asked: “ Q. From what you have detailed from your conversations with him, would he have been able to understand you if you had said to him, that you wanted to leave your estate to your wife for her life time, and after her death, to your son Joel and his wife, and in case he died without children, all your property was to go to the children of your brothers; could he have followed you and understood you, in your opinion ?” Objected to, objection overruled and exception. [6]
    Maria E. Good, a witness called by the defendant, was asked: “Q. Would Palmer, in the spring of 1885, if you, his wife, had read to him two or three pages of writing or printing about one subject, have been able to understand it, in your opinion, prior to June 1st, 1885?” Objected to, objection overruled, and exception. [7]
    Dr. Isaac Massey, a witness called by the defendant, was asked: “ Q. Assuming that Dr. Stubbs’s diagnosis was correct, taking a man in those years, with an attack in January, as Dr. Stubbs has detailed it, up to March of 1885, and supposing that he had no further attack whatever, would you, without a post mortem examination, be able to determine what part of the brain was affected ?” Objected to, objection overruled and exception. [8]
    Dr. Isaac Massey was also asked the question: “ Q. Taking, then, the diagnosis of this case, as you understand it from the testimony, as you have read it, and with an attack in April or May, could that man, if the same had been detailed to him that I have detailed to you, have understood it?” ' Objected to, objection overruled and exception. [9]
    The facts of the case appear in the charge, as follows, by Futhey, P. J.:
    “ The burden of proving mental incompetency, is, in the first instance, upon those who assail the competency of the testator. Where a will is offered in evidence, and where the subscribing witnesses testify to the proper execution of the instrument of writing, then the burden of showing incompetency, when it is alleged, is upon those who allege the incompetency. When incompetency is shown upon the part of the defendant, or testimony is given which has a tendency to show incompetency, is given on the part of those who assail the will, then the parties who support the will may reply to that by producing witnesses to show the competency of the testator, as was done in this case.
    “ Testamentary capacity is presumed of every one of full age; that is, capacity to make a will is presumed of every one of full age, and the burden of proving unsoundness of mind is upon him or those who allege nnsoundness. This must be done, not in a doubtful, but positive'manner, and unless it is thus established, the presumption in favor of incompetency and of testamentary capacity shall prevail. If, however, unsoundness of mind is shown to exist, prior to making a will, then the burden of proving the competency of the individual, a lucid interval or restoration to competency is shifted, and is thrown upon those who allege that fact.
    “You will understand these principles that I have laid down to you — that, in the first instance, testamentary capacity is to be presumed, without more, where due proof is made of the execution of the will; then the burden of proving the unsoundness is upon those who allege the unsoundness; if, however, general unsoundness of mind is shown to exist prior to the making of the will, then the burden of proving restoration to competency is shifted and is thrown upon the other side. That is, if a defendant shows, to the satisfaction of the jury, that there was a general unsoundness of mind, then the burden is shifted to the other side to show that the man was restored to competency. These are the general principles of law which govern cases of this kind. I need not enlarge upon, them.
    “"What is the case which you are here trying? Palmer Good was a farmer who resided in Londongrove township; he was a man of fair intelligence ; and it appears that, in the early part of 1884,. he had had a stroke of paralysis, or of that nature, from which he-was, for sometime, insensible; a physician was sent for; he was-restored, after a time, to consciousness; he continued for some time-after that in a state of weakness, gradually growing better until some weeks thereafter, when he was able to go out, first on crutches, and then with the aid of a cane. As I recollect the testimony of the physician, he had one or two attacks of a similar character while he was still upon the farm, in the year 1884, the same year that he had the first severe attack; and while he was in a state of disability from that attack, he had two other slight attacks, the character of which was testified to by the witnesses. You will remember what they said with regard to them. He remained on the farm until the next January, when he removed to West Grove. During the year 1884, he erected a dwelling-house in West Grove; when he removed to West Grove, in January, 1885, he occupied another house, temporarily, his own not being ready for occupancy, and, in February or March, when his own house was sufficiently completed, he moved into it. While there, it appears that he had two other strokes in February, March or April, from which he rallied to a greater or less extent — to what extent he recovered, physically or mentally, is a question for the jury.
    
      “ Some time after that, in the month of May, it appears that he had conversation with Mr. Johnson with reference to the making of a will. Mr. Johnson took notes from him of the disposition he desired to make, put it in writing, and, at a subsequent interview a week or so after with Mr. Good, he says they went over the matter together, suggestions and alterations were made, then the will or paper was read to Mr. Good with the alterations as suggested; it was not then re-written, but was read as it would read with the alterations suggested inserted, and was pronounced by Mr. Good to be satisfactory, and that thereafter, on the date I have mentioned, the will was executed. Mr. Johnson further testifies that he made certain suggestions to Mr. Good, that Mr. Good took the suggestions he made and considered them, and when he came back again said that his first view was right, that he had thought it over, and that he wished the will prepared in accordance with the suggestions he had first made. The will was witnessed by Mr. Johnson and by Dr. Heston. The will was not read to him the day it was executed, but Mr. Johnson testifies that it was the will as he had prepared it before, with the alterations which were made in it, and which were read to him as they would be when inserted, on the interview in his office.
    
      “ This will is assailed on the ground of mental incompetency. Now, the question for the jury to solve is, whether Palmer Good, when he made this will, did or did not possess the mental capacity requisite to make a will, as I have laid it down to you. A man might have either general, or what is known as partial insanity, a man may be insane on particular subjects, he may be a monomaniac on a particular subject, and if the will is the consequence of any insane delusion to which the testator has been particularly subject, it will void the will. When it is made under the influence of an insane delusion, the courts upon this subject say that a monomaniacal delusion entertained by a testator against one who would otherwise have been the natural object of his bounty, and shown to be the reason which excluded him from it, and to have had no other existence except in the distorted imagination of the testator, will invalidate a will made under such influences, and for the plain reason that a will, made under the suggestions of such an insane delusion, is not what the law requires a will to be, the product of a mind capable of reasoning rightly ; for, although the law recognizes the difference between general and partial insanity, yet if the will has been made under the influence of such partial insanity and is the product of it, it is as invalid as though the insanity had been general.
    
      “ It is said, upon the part of the defendant, that this will was .made by his father when he was not competent to do so by reason •of the disease which had come upon him, the stroke of paralysis, •that the effect of this had been to weaken his mind to such an •extent that he was not competent to make a will; and that, further, it had had such an effect upon his mind as to distort his mind with reference to himself personally, and that, under the influence of this distorted imagination, created by the disease, he had made this will, and disposed of his property as far as he was concerned, under the influence of such a feeling or delusion. A number of witnesses were called by the defendant upon these subjects. Dr. Stubbs was the attending physician when he was stricken down, and continued to be so until after he removed to "West Grove. Then it appears that Dr. Heston became his physician from that time on until his death. I think Dr. Heston testifies that he was called in in January, and attended him from that time until his death. Dr. Stubbs testifies that he attended him until Mareh, which makes the testimony of the two physicians overlap somewhat, and it would appear that he had two physicians during this period.
    “ Witnesses to a will are allowed in law to testify as to their opinion of the soundness of the mind of the testator, without, in the first instance, giving any reason therefor, without any foundation having been laid. When a man witnesses a will, he thereby attests the sanity of the testator. He may be deceived. A man may be insane at the time a will was made, and yet the man witnessing the will may be perfectly honest in doing so; but, as a matter of fact, when a man is called in to witness a will, he, by that act, says, not only that this is the signature of the person whose signature it purports to be, but goes further than that and testifies to the competency of the testator to make a will. Hence, the law allows the opinions of the witnesses to be given when they are called on the stand, without any foundation first being laid for that opinion. But when other witnesses are called to speak of the capacity, or want of capacity, in a testator, they are required, before they are allowed to give their opinions, to lay a foundation for such an opinion; in other words, to detail the facts and incidents on which they rely. Having shown that, then they may add to that their opinions of the competency or incompetency of the testator. The reason why they are required to give the facts and reasons upon which they rely or base their conclusions that he was sane or insane, is that the jury may judge what degree of credit to give their opinions. We do not, as you will have seen in this case, simply call witnesses on either side to say that Palmer Good was sane or insane, competent or incompent; but you will have observed that witnesses, other than those to the will, were required to detail to the jury the grounds upon which they based their opinions before they were allowed to give any opinion. First, they were required to state their knowledge of Palmer Good, their intimacy with him, what they observed of what he did and said, their intercourse with him, so that we might judge whether they had such knowledge as would enable them to speak on the subject. Having laid this foundation, then they were allowed to testify as to his competency or incompetency.
    
      “ Now, in judging of the credit to be given to the various witnesses, on the one side and the other, it is for the jury to consider the opportunities which these parties had of judging the facts, which they have given you, upon which their opinions were based, so that you may say just what degree of credit to give the various witnesses. Some witnesses may have given you such facts in the case as to enable you to put a great degree of credit on their opinions; others might have given so little testimony upon the subject, on which they were testifying, as to warrant a jury in placing very little credence on their opinions; others might have had such acquaintance and given testimony upon facts so slight, that no credence can be given it at all by the jury. These are all suggestions which I throw out for the consideration of the jury in determining what weight is to be given to the testimony, upon the one side and the other.
    “ The defendant, the contestant of the will, has called a large number of witnesses with reference to the capacity of the testator to make a will, tending to show that at the time the instrument was made and executed he did not possess the capacity requisite to enable him to make a will, within the meaning of the law as I have laid it down to you. I have stated to you very clearly what capacity a man must have to enable him to make a will. The testimony of the defendant was directed to this point, the capacity of the testator to make a will. And he has also produced testimony as to the effect of this sickness upon his father’s mind with regard to himself. He says that there was a change in his father’s manner toward him, that from having before been kind to him, his mind in a measure-changed, that he did not have the same views with regard to him,, and that, under the influence of these changed views brought about, by this disease, this will was made, and that therefore it was not the-will of Palmer Good when he was Palmer Good.
    “ On the other hand, witnesses have been called upon the part of the will, on the part of the plaintiffs, to sustain the will, showing-that Mr. Good transacted business after he had these strokes, to a considerable extent. Peference is made to the building of a house in West Grove, the vendue, the leasing of the farm, the selling of the farm, the transactions in bank, purchasing of lumber for additions to the building in West Grove, and various conversations had with him from time to time, for the purpose of showing you that. Palmer Good had the requisite testamentary capacity.
    “Now, all this testimony is for your consideration; I will not. go over it in detail; to do so would be to prolong my charge to an unwonted length. The testimony has been fully commented upon by counsel on one side and the other, your attention has been drawn to almost every phase of it, and it is not necessary, therefore, that I should recall the testimony to your recollection. You will consider all the testimony, on the one side and the other, as bearing upon the question which is here at issue, and which is the testamentary capacity of Mr. Good to make his will. Yon will consider the testimony bearing upon the question as to whether the will was made under this state of insane delusion arising from this disease, as well as the testimony bearing upon the general capacity of the testator to make a will, and you will endeavor to arrive at a-conscientious and just conclusion upon this subject.
    “ If you find that the testator did not possess the requisite testamentary capacity to enable him to make a will, bearing in mind what I have said as to what is necessary for the making of a will,, then your verdict should be in favor of the defendant, which sets aside the will. If you find that Palmer Good, when he made this-will, did possess the requisite mental capacity to enable him to make a will, then it is your duty to sustain the will, and that would be by finding a verdict in favor of the plaintiffs.
    “Pear in mind what I have said in relation to the burdens of proof. "Where a will is contested, and the witnesses to a will prove the execution of it, that it was the act of the testator, and the person who assumes to be the testator, as was done in this case, then the burden of proof is upon the defendant who assails the will; in other words, every man is assumed, or presumed, in the first instance, to possess the proper mental capacity to enable him to make a will — that the law presumes to start out with — and those who assail the will are required to prove, to the satisfaction of the jury, that the testator did not possess the requisite mental capacity to enable him to make a will; the burden of proof is upon him. Then those who set up a will have a right to reply to this; if the person who assails the will shows a general insanity and incapacity to make a will, and the jury is satisfied that this has been shown by the testimony, then the burden is shifted, and the plaintiff who sets up the will is required to remove that insanity. That is, if the defendant, whose duty it is to prove the incapacity of the testator, proves a general incapacity prior to making the will, then the burden is shifted on the plaintiff to remove this, and show either a lucid interval, or show restoration of reason to such an extent as to ■enable the testator to make a valid will.”
    The plaintiff requested the court to charge, inter alia:
    
      “ 1. Testamentary capacity is always presumed, until the contrary is shown by the clearest and most satisfactory proofs, and as there is no such sufficient proof in this case, the verdict should be for the plaintiffs. Ans. This point, as a whole, is disaffirmed. The first part of it is correct, that testamentary capacity is always presumed until the contrary is shown by the clearest and most satisfactory proofs, but the latter part of the point which asks us to say that there is no such proof in the case, we disaffirm. That is for the consideration of the jury.”
    
      “ 3. The burden of proving to the satisfaction of the jury, that the testator was not competent to make a will at the time the will in controversy was dictated and executed, is upon the contestants. Ans. I think I have already charged you fully upon that subject.”
    “ 4. If the jury believe that, at the time the will was executed, and before and after that time, during the summer of 1885, the testator was able to make contracts and transact ordinary business intelligently, he was capable of making a will, and the verdict should be for the plaintiffs. Ans. It is for the jury to say whether he was able to make contracts and transact ordinary business; if he was, and the jury find that he had the requisites to make a will, which I have fully laid down to you, then your verdict should be for the plaintiffs.”
    Verdict and judgment for defendant.
    
      The assignments of error specified, 1-9, the rulings on the evidence, quoting the bills of exceptions but not the answers; and 10-12, the answers to plaintiffs’ points, quoting them.
    
      Geo. B. Johnson and Wm. M. Hayes, for plaintiffs in error.
    The knowledge of defendant’s witnesses did not come up to thé ¡standard which this court has prescribed, in order to enable, such witnesses to express opinions as to the testator’s want of capacity First National Bank of Easton v. Wirebach’s Exrs., 12 W. N. C 150; McMasters v. Blair, 29 Pa. 303. Less capacity is sufficient to make a valid will than to transact ordinary business. Thompson v. Kyner, 65 Pa. 368; Cauffman v. Long, 82 Pa. 77.
    Dr. Stubbs’ testimony in chief is only part of his evidence, and it would not have been allowed to stand if he had refused to submit to cross-examination. How then can Dr. Massey be allowed to express an opinion based wholly upon ex-parte testimony ?
    The court failed to answer plaintiff’s third point, and this was error. Hamilton v. Menor, 2 S. & R. 74; Humes v. McFarlane, 4 S. & R. 427; Pedon v. Hopkins, 13 S. & R. 45; Pa. R. R. v. Zebe, 33 Pa. 318; Tenbrooke v. Jahke, 77 Pa. 396; Hood v. Hood, 2 Gr. 229; Noble v. McClintock, 6 W. & S. 58; Act of March 24, 1877, P. L. 39.
    
      John J. Gheen and H. T. Fairlamb, not heard, for defendant in error.
    When one, not a subscribing witness to a will, has testified to facts of his own knowledge tending to show want of testamentary capacity, he may be permitted to add his own opinion. Dickinson v. Dickinson, 61 Pa. 401; Titlow v. Titlow, 54 Pa. 216. Testamentary incapacity does not necessarily suppose the existence of idiocy or raving lunacy. Leech v. Leech, 21 Pa. 67.
    The opinion of Dr. Massey was properly admitted under Yardley v. Cuthbertson, 16 W. N. C. 461. It was equivalent to submitting a hypothetical question based on the testimony of Dr. Stubbs. It was ' not ex-parte. The plaintiffs had the right and availed themselves of it, of ascertaining, in cross-examination, what was the witness’s opinion on the facts as they thought they existed, that is, of putting other hypothetical questions and having them answered.
    The court properly instructed the jury on the question of the burden of proof. Landis v. Landis, 1 Gr. 248.
    Feb. 13, 1889.
   Per Curiam,

Judgment affirmed.  