
    TESTAMENTARY CAPACITY — WILLS!
    Licking (5th) Circuit Court,
    March Term, 1905.]
    Donahue, McCarty and. Taggart, JJ.
    
      Welsh Hills Baptist Church, etc. v. Harriet M. Wilson et at.
    INSTRUCTIONS TO JURY SHOULD BE CONSTRUED AS A WHOLE.
    Where one paragraph of the charge given to the jury may, when standing alone, be misleading, but taken in connection with what immediately follows a correct and clear statement is made, there is no objectionable error. Nor does the court instruct that testamentary capacity must equal that of capacity to make a contract by charging, “It is necessary that a person shall have sufficient mental capacity for the transaction of the ordinary affairs of life,” when what follows, in a later paragraph, expressly states, "He need not have sufficient capacity to make a contract, but must understand substantially what he is doing and the nature of the act in which he or she is engaged.”
    [For other casesi in point, see 2 Cyc. Dig., “Charge to Jury,” §§ 508-527.— iOd.J
    [Syllabus approved by the court.]
    A. A. Stasel and G. C. Daugherty, for plaintiff:
    Test of testamentary capacity. Pepple v. Pepple, 7 Circ. Dec. 102 (13 R. 43) ; Kettemann v. Metzger, 13-23 O. C. C. 61; Page, Wills Sec, 68; Thompson, Trial Ey. See. 1121; West v. Knoppenberger, 26 O. C. C. 168; Underhill, Wills See. 87.
    Hunter & Hunter and Kibler, Kibler & Montgomery, for defendants:
    Sufficient understanding to transact ordinary business, is strong evidence of testamentary capacity, though the want of such understanding does not necessarily show incapacity. Brockmeier v. Buck, 9 Dee. Re. 353 (12 Bull. 213).
    Special requests. Hall v. Beed, 17 Ohio 498; Cleveland & E. Elec. By. y. Hawkins, 64 Ohio St. 391 [60 N. E. Rep. 558]; United States Board & Paper Co. v. Browne, 25 O. C. C. 347; Tracy v. Card, 2 Ohio St. 431; Ijewis v. State, 4 Ohio 389; Stewart v. Southard, 17 Ohio 402 [49 Am. Dec. 463]; Beed v. McGreiu, 5 Ohio 375; Creed v. Bank, 11 Ohio 489; Steivart v. State, 1 Ohio St. 66; Gill v. Sells, 17 Ohio St. 195; Oliver v. Sterling, 20 Ohio St. 391; Coal Co. v. Estievenard, 53 Ohio St. 43 [40 N. E. Rep. 725] ; Kettemann v. Metzger, 13-23 O. 0. C. 62.
    Testamentary capacity. Page, Wills Sec. 97, p. 115; Blough v. Parry, 144 Ind. 463 [40 N. E. Rep. 70] ; Moore v. •Caldwell, 27 O. C. C. 449; Black’s Dictionary, 767,1107, 1108; McGinnis v. Kempsey, 27 Mich. 368.
    Reversible error. McAllister v. Hartnell, 60 Ohio St. 69 [53 N. E. Rep. 715]; Clark v. Clark, 8 Circ. Dec. 752 (16 R. 103) ; Schweinfurtk v. Railway, 60 Ohio St. 215 [54 N. E'. Rep. 89]; Breck v. State, 2 Circ. Dec. 477 (4 R. 160) ; Page, Wills Sec. 400.
    
      
       Affirmed, without report, Welsh Hills Baptist Church v. Wilson, 52 Bull, 67; 75 O. S. 000.
    
   PER CURIAM.

Harriet M. Wilson et al. commenced their action in the court of common pleas of Licking county against Andrew J. Cada et al., seeking to set aside the last will and testament of Hannah E. Thomas, deceased, and on issue joined, the cause went to a jury for determination.

After a verdict, the plaintiff in error prosecuted error to this court seeking to reverse the judgment of the court of common pleas; and the sole question presented here is on the charge of the court.

On the trial of the case, counsel for defendants requested the court, in writing, before the argument to the jury, to give to the jury the special instruction found on page 12 of the bill of exceptions, which the court refused to give, this is one of the errors complained of by the plaintiff in error. If this instruction, so asked by counsel, was correct and proper, it was the duty of the court to have given it without modification and without change; but, as we view the request, it is not a correct instruction, as it omits several very important and vital elements defining mental capacity. Counsel request the court to say that, “The testatrix must have capacity to remember the person or parties to whom she wishes to give this property, and remember and know her immediate relatives.”

Taking this request as a whole, counsel in taking it from the well-known authorities on instructions to juries, eliminated several very essential and, as we think, vital elements, and modified and restricted the definition of mental capacity in the respects as indicated, so that it was improper to be given in the form as requested.

We think the court was not in error in refusing this request.

The charge as' given to the jury is also excepted to, and our attention is directed to a paragraph on page 5 of the bill of exceptions, which reads as follows:

“In order to be able to make a valid will, it is necessary that a person shall have sufficient mental capacity for the transaction of the ordinary affairs of life, and if he possesses this, though he may be feeble in mind and body from sickness, old age or other cause, he has a legal right to dispose of his property as to him may seem fitting and proper.”

If this portion of the charge stood alone without any modification, it perhaps might be misleading; but taken in connection with what.immediately follows, and particularly with what follows in the second paragraph below, we do not think the jury could have been misled. Nor is the question made in this case, as claimed by counsel for plaintiff in error,' that the court instructed the jury that testamentary capacity must equal that of capacity to make a contract, for the court distinctly says, and immediately following upon this paragraph 'that is objected to:

“The law does not undertake to test a person’s intelligence or to define the exact quality of mind and memory which a testator must possess; but it does require him to be capable of knowing the extent and value of his property, the names or relationship of those persons who are the natural objects of his bounty; their deserts in reference to their conduct and treatment of him or her; their conditions and necessities, and be capable of retaining all these facts in his or her memory long enough to have the will prepared and executed. He or she need not have sufficient capacity to make a contract, but he or she must understand substantially what he or she is doing, the nature of the act in which he or she is engaged, the extent of his or her property, the relations of others who may or ought to be the object of his or her bounty,” etc.

We think the court fairly presented to the jury the true rule of testamentary capacity, as approvéd by the highest authorities in this country and England, as shown by the latest works on the subject of wills.

It is our opinion that no error intervened in this case, and that the judgment of the court of common pleas should be affirmed.

Judgment for costs, and cause remanded to the court of common pleas for execution.

Exceptions of plaintiff in error are noted.  