
    Case 21 — APPEAL IN WILL CASE
    February 4.
    Lucas, &c. v. Cannon, &c.
    APPEAL from warren circuit court.
    1. An affidavit of a juror is not competent evidence to prove that the verdict was the result of an agreement that such a verdict should be rendered as was favored by a majority of the jury.
    2. Declarations of testator are competent as conducing to show his mental condition, and his susceptibility to the influences by which he was surrounded at the time of making his will.
    8. Undue influence is not that which is obtained by modest persuasion, or by arguments addressed to the understanding, or by mere appeals to the affections—
    
      Undue influence is an influence obtained either by flattery, excessive importunity, or threats, or in some other mode by which a dominion is acquired over the will of the testator, destroying free ' agency, and constraining him to do, against his free will, what he is unable to refuse. (2 Greenleaf, 688.)
    BODES & CLARKE for appellants.
    1. Undue influence is personal restraint, or fear of personal injury or imprisonment. (2 Met. 445-447.)
    This case is like Harrel, &c. v. Harrel, &c. (1 Duv. 204) and Broaddus, &c. v. Broaddus, &c. (10 Bush, 299). (See also 2 J. J. Mar. 342; 1 Bush, 116.)
    2. None but experts or attesting witnesses can express an opinion as to whether the testator was or not of sound mind and disposing memory. (1 Greenleaf’s Evidence, secs. 440, 690, 691.)
    3. Proof of declarations of the testator was erroneously rejected by the lower court.
    HALSELL & MITCHELL for appellees.
    1. Grounds not set forth in the motion in the lower court for a new trial can not be assigned for error in this court; and grounds stated in the motion for a new trial, and not assigned for error in this court, are waived by the appellant. (Slater v. Sherman, 5 Bush, 206; McAIexander v. Wright, 3 Mon. 191; act of 1799; Civil Code, sec. 756; Payne v. Mattox, 1 Bibb, 164; McLain v. Dibble, 13 Bush, 297.)
    2. Undue influence can not be inferred from the fact that a will is partial or unjust in its operations. (3 White & Tudor’s L. Cas. 145; 35 N. Y. 612; Broaddus, &e. v. Broaddus, &c., 10 Bush, 304.)
    The restraint must be a present one, operating on the mind at the time the will is being made. (1 Williams on Executors, 43; 3 Leading Cases in Equity, 146; 1 Redfield on Wills, 524; Broaddus, &c. v. Broaddus, &c., 10 Bush, 304.)
    As to what constitutes undue influence. (2 Greenleaf’s Evidence, sec. 688; 35 N. Y. 610.)
    3. A non-professional witness may give his opinion upon the sanity of a party, as the result of his own observations, accompanied with a statement of the facts which he has observed, but he can not give an opinion upon the facts stated by other witnesses. (1 Greenleaf’s Evidence, sec. 440, note 4; see also 3 Redfield on Wills, 136-145; Hardy v. Merrill, 56 N. H.; Hathaway’s adm’r v. National Life Ins. Co., 48 Vt.)
    4. The same effect must be ■ given to the verdict of a jury in a will case, under the General Statutes, as in other civil cases.
   JUDGE ELLIOTT

delivered the opinion oe the court.

On the 10th day of April, 1873, J. E. Edwards made his last will and testament, and shortly thereafter died. This will was admitted to probate in the Warren County Court, and, after several mistrials in the Warren County Common Pleas Court, a judgment in favor of the will was rendered, which is here for revision by appeal.

After the verdict? and judgment of the court below, the appellants filed their grounds for a new trial, and offered to read the affidavit of one of the jury to prove that the verdict was the result of an agreement that such a verdict should be rendered as was favored by a majority of the jury. The objection of the appellee to the reading of this affidavit was sustained by the court, and appellants excepted. We are of opinion that the court properly rejected this affidavit. This court, as early as Doran v. Shaw (3 Mon. 415), decided that a juror could not be used to impeach a verdict rendered by a jury of which he was a member, and this decision has been followed -by similar rulings since.

The will in controversy was assailed on two grounds: It was denied that the testator had sufficient capacity to make a will; but if mistaken in this, appellants say that the will was procured to be made by the undue influence of his wife, now C. W. Cannon.

The court overruled all the instructions asked by appellants, and gave but one instruction, which is marked D, and it is contended' that this instruction was erroneously prejudicial to appellants. By this instruction, among other things, the jury are told, “That the declarations of Edwards, proven in the case, are only competent evidence to show his mental condition at the time.” It seems to us, that the declarations of the testator were as much evidence to show the influences -by which he. was surrounded, and his affections for and prejudices against his wife and children, as to show his mental condition at the time of making his will. ■

By instruction D, while stating what amounts to undue influence, the court instructs the jury that: “It is such influence as is exercised by coercion, imposition, or fraud; not such as merely arises from the influence of gratitude, affection, or esteem. It must be the ascendency of another will over .that of the testator by reason of coercion, imposition, or fraud.” The jury may have construed this instruction to mean, that in order to defeat a will on the ground of undue ■influence,-the jury must believe that the undue influence must amount to force, imposition, or fraud. It is true that: “Undue influence is not that which is obtained by modest persuasion, or by arguments addressed to the understanding, or by mere appeals to the affections. It must be an influence obtained either by flattery, excessive importunity, or threats, or in some other mode by which a dominion is acquired over the will of the testator, destroying his free agency, and constraining him to do against his free will what he is unable to refuse.” (2 Greenleaf, 688.)

If therefore the testator’s wife, or others, had acquired such complete dominion over the mind of the testator as to destroy free agency, and if this dominion was exercised to induce him to make a will, which if not under such influence' he would not have made, but which he could not and did not resist, then the will should not be probated, although no threats or other imposition or fraud or coercion were used to obtain its execution.

For these reasons the judgment is reversed, and cause remanded for further proceedings consistent with this opinion.

To THE PETITION of COUNSEL FOR APPELLEES FOR A REHEARING,

JUDGE Elliott

delivered-the response of the court.

We only intended, in the opinion delivered in this case, to lay down the rule, that the declarations of the testator proven' in the case were competent as conducing to. show his mental condition at the time of making his will, and his susceptibility to the influences by which lie was surrounded at the time, and if the opinion is subject to any broader construction, it is ■ h'ereby modified to the extent above indicated. But we are satisfied the instruction D, referred to in the opinion, did not correctly define the law for the reasons therein given. Wherefore the petition for a rehearing is overruled!  