
    In re Estate of Theodore Munier, Deceased, Louisa Munier, Lucy Munier and George Munier v. Eugene C. Michel, Josephine L. Metcalf and Eliza M. Levasseur, Appellants.
    1 Wills: contest: mental incapacity: instruction. Where the contestant of a will relied to a large extent upon evidence of the alleged paralysis of the testator as tending to render him incapable of making a will, and there was also other evidence of mental weakness upon which the contestants relied, it was error for the court to instruct that unless the jury found the contestant to have been affected by the stroke of paralysis the will must be sustained.
    2 Evidence: hypothetical questions: instruction. While all the facts stated in a hypothetical question must have support in the evidence, still it is not necessary that the question cover the whole case; and an instruction that the jury might disregard the testimony of experts to whom the question was propounded, unless it found that all the facts were covered by the question was erroneous.
    
      Appeal from Lirm District Oourt. — Hon. Milo P. Smith, Judge.
    Thursday, May 5, 1910.
    The defendauts contested the probate of the will of Theodore Munier. There was a verdict and judgment for the proponents, and the defendants appeal.
    
    Reversed.
    
      O. JE. Wheeler., J. H. Preston, F. L. Anderson, and • W. F. Fitzgerald, for appellants.
    
      Voris & Haas and Jamison & Smyth, for appellees. ,
   Sherwin, J.

Theodore Munier died in August, 1908, at the age of eighty-one. He left surviving him a widow, his third wife, and five children, two of whom were bom to his first wife, and one who was bom to the second wife, and two children of his third wife. He left an estate of the value of about $90,000, and a will devising to each of his three older children $500, to his wife the use of the rest of his estate during her life, in lieu of 'her distributive share, and to the two youngest children the remainder of the estate after his wife’s use thereof, in equal shares. The widow and her two children offered the will for probate, and the three children by the former marriages contested the probate thereof on the ground of mental incapacity and undue influence. After the evidence had been received, the court took the question of undue influence from the' jury and submitted to it only the question of mental incapacity when the will was made in October, 1904.

There was evidence tending to show that during his entire adult life the deceased had been an habitual user of intoxicating liquors at his home, and that such use would have a tendency to weaken his mental strength. There was also evidence tending to show that the deceased was mentally unsound from the year 1902 until his death in 1908, and that in 1902 he had a stroke of paralysis, from which he never fully recovered. While the contestants relied to a great extent on the alleged paralysis of 1902, it was not the sole ground upon which they based their claim of incapacity when the will was made. It was therefore error to instruct that, unless it was found that the deceased had a stroke of paralysis in 1902, the will must be sustained.

The contestants used several physicians, who testified in answer to a hypothetical question that the deceased was of unsound mind when he executed the will. The ■hypothetical question was long, and omitted some parts of which,, might have been of benefit to pro-the evidence ponents if included therein. The trial court instructed that, if the facts were all substantially stated in the hypothetical questions put to the medical experts, the jury might consider such testimony, and said: “But in any case where a hypothetical question is not a correct statement of the facts then in such a case you are warranted in wholly disregarding the answer.” It is hot necessary to state all of the facts in a hypothetical question. The facts stated must appear and have support in- the evidence, but the party propounding the hypothetical question is not required to cover the whole case. Bever v. Spangler, 93 Iowa, 576; Allison v. Parkinson, 108 Iowa, 154. It is manifest that the jury would understand from the entire language of the instruction that it might disregard the testimony of the contestants’ medical experts, unless it was found that all of the facts were covered by the hypothetical questions, and this was in our judgment very prejudicial to the contestants.

The alleged inconsistency between instructions four ,and six and seven is sufficiently covered by what we have said about the sixth instruction.

Criticism of other instructions need not be further noticed.

It Is urged that many errors were committed in ruling on the receipt of testimony. Some of the testimony offer,ed by the contestants in their main case which was excluded would undoubtedly have been competent in rebuttal, but there was nothing in the record at the time of the rulings which so indicated, and, in the main, we think the rulings correct. At any rate, the doubtful rulings are not likely to again occur.

The appellees seriously contend that there should be no reversal, • whatever errors may appear, for the reason that there' is no substantial evidence of mental incapacity or of undue influence. We can not agree with, the contention, however, and the judgment must be reversed for the errors pointed out. — Reversed.  