1. In response to the application for rehearing, our attention is called to the fact that the motion to exclude Judge Grubb's answer was not limited to the objectionable part — that testator had "testamentary capacity" when he executed the will. For this reason there was no error in overruling contestants' motion to exclude the whole answer of the witness.
2. There was prejudicial error in refusing to allow the contestants to show by witness Mr. Paul Whittington testator's apprehension of liability on an old sheriff's bond and that this apprehension was superinduced by statements made to testator by Mr. Olin Whittington. In effect, this was the showing made to the court by contestants' counsel of what was expected to be shown by the witness. This erroneous ruling was not eradicated by the later introduction by proponent of testimony tending to show testator's fear of liability on a more recent guardian's bond. Under the issues formed, contestants should have been permitted to introduce the evidence in question in the orderly conduct of the trial and introduction of their evidence, and not have evidence by proponent of testator's apprehension of liability under a later guardian's bond rather than the old sheriff's bond in question. If it was competent for proponent to show testator's liability on a recent bond, or his apprehension of such liability, it was likewise important that contestants be permitted to show that such apprehension was of an ancient liability, and, as stated to the court by contestants' counsel, they expected also to show that this apprehension was stirred in the mind of testator by statements made to him by Mr. Olin Whittington.
3. Of proponent's given charges B and N, Justices MAYFIELD and SAYRE agree with the writer that the same should be refused in a case where the issues of fact are undue influence and fraud. The rule of undue influence and fraud — that vitiating coercion or fraud if entering into the procurement or execution of a testamentary instrument — that defeats its probate, was recently elucidated in Higginbotham v. Higginbotham, 106 Ala. 314,318, 17 So. 516; Councill v. Mayhew, 172 Ala. 295,55 So. 314; Phillips v. Gaither, 191 Ala. 87, 67 So. 1001. We believe these cases, in effect, modified the upholding of given charge 3 in Knox v. Knox, 95 Ala. 495, 504, 11 So. 125, 36 Am. St. Rep. 235. This view is concurred in by the CHIEF JUSTICE and Justices SOMERVILLE and GARDNER. The vice of the statement of law contained in instant charge B is not that it is merely misleading, but that its modifying words "and must be tantamount to force or fear," immediately succeeding the words "must amount to coercion or fraud," rendered the instruction positively erroneous. Mr. Justice SOMERVILLE will state his view of charge B for the CHIEF JUSTICE and Mr. Justice GARDNER. Mr. Justice McCLELLAN dissents as to the rulings on charges as indicated by him. In other respects the Justices concur.
Application for rehearing overruled.