This is an appeal from the decree of the chancery court, confirming the validity of the instrument executed by Samuel B. Bennett, now deceased, on the 19th day of March, 1914, as the last will and testament of said Bennett. The contest in equity following the probate of the instrument, in the probate court, was instituted and conducted in accordance with Code, §§ 6207, 6209, 6196, etc. The appellant is the contestant. The grounds of contest were these: (a) That Bennett did not possess testamentary capacity to make a will when this instrument was executed; (b) that the instrument was the product of insane delusions.
After the contestees (appellees) had introduced in evidence the original will and the depositions of the witnesses attesting the execution of the paper as a will, taken in the probate court, "proving due execution of the same," the contestees rested their case. The contestant thereupon moved "the court to require the contestees to introduce all of their affirmative testimony with reference to the sanity of the testator before the contestant introduces her proof of his mental condition at the time of the making of the will." The court overruled the motion. The initial burden of proof to establish mental incapacity *Page 421 having passed to and being upon the contestant, the proponent having made out a prima facie case by proof of the execution of the instrument according to the form prescribed by law, the stated motion was not well taken, and was properly overruled. O'Donnell v. Rodiger, 76 Ala. 227, 52 Am. Rep. 322; Cummings v, McDonnell, 189 Ala. 96, 102, 66 So. 717.
Complaint is made that the contestees were allowed, over objection of contestant, to have before the jury the deposition of the attesting witnesses taken in the probate proceeding before the probate court, and also to introduce these same witnesses in support of the contestees' side of the issues tendered by the stated grounds of contest. By the express terms of the statute (Code, § 6209), these depositions were admissible; and it would have been error to exclude them. Stephens v. Richardson, 189 Ala. 360, 365, 66 So. 497. Obviously the provisions of that statute were not intended to qualify, much less deny, the absolute right of the supporters of the instrument's validity and testamentary character to meet, if they could, the issues tendered by the grounds of contest. Plainly, there was no possible error in this ruling of the court.
Contestees' witness Arrington, the executor named in the instrument, testified that the testator was sane, after having testified to "an intimate and extended acquaintanceship with the deceased, Bennett, since 1910 up to his death." The bill of exceptions then recites:
"On cross-examination, amongst other questions, the contestant asked the witness what would he think of the sanity of a man who made a will of his property to a dead horse."
On objection of contestees, stating no grounds thereof or therefor, the court refused to allow the question. This action of the court is made the basis of assignment of error numbered 34. It does not appear to have been insisted upon in the brief filed, under the rule, on submission of the appeal, and was, in consequence, waived. L. N. R. R. Co. v. Holland, 173 Ala. 675,55 So. 1001; Jebeles v. Booze, 181 Ala. 456, 462,62 So. 12. However, had this assignment been seasonably urged for appellant, this action of the court could not have been held for error, since, at most, the discretion reposed in the court in such matters was not at all improperly exerted. Barfield v. South Highlands Infirmary, 191 Ala. 553, 567,68 So. 30, Ann. Cas. 1916C, 1097.
What has been said disposes of all questions argued for appellant except those referable to three special instructions given the jury at the instance of contestees and 28 special instructions requested by and refused to contestant. With this number of given and refused instructions brought under review by the appeal it is not desirable or practicable to accord individual treatment to all of them in the opinion. All of them relate either to the mental capacity of Bennett to constitute this instrument a will, or to the burden of proof and its conditionally alternating obligations in that regard.
The measure and quality of the mental capacity requisite to enable a testator to make a valid will was stated by this court in Taylor v. Kelly, 31 Ala. 59, 72, 68 Am. Dec. 150, to be this, to in substance quote it: If the testator had memory and mind enough to recollect the property he was about to bequeath, and the persons to whom he wished to will it, and the manner in which he wished it to be disposed of, and to know and understand the business he was engaged in, he had, in contemplation of law, a sound mind; and great age, bodily infirmity, and impaired mind will not vitiate a will made by one possessing such capacity. In the same opinion it was also declared that it was not essential to the execution of a valid will that the testator's memory should be perfect and his mind unimpaired. The doctrine, as well as in many cases the exact language of that decision, has been repeatedly reaffirmed and reiterated by this court. Council v. Mayhew, 172 Ala. 295, 307,55 So. 314; Mullen v. Johnson, 157 Ala. 262, 265, 266,47 So. 584; Schieffelin v. Schieffelin, 127 Ala. 14, 37,28 So. 687; Burney v. Torrey, 100 Ala. 157, 14 So. 685, 46 Am. St. Rep. 33; Knox v. Knox, 95 Ala. 495, 503, 11 So. 125, 36 Am. St. Rep. 235; Kramer v. Weinert, 81 Ala. 414, 416,1 So. 26, among others. The definition has been accepted as affording the standard definition of the mental capacity requisite to make a valid will. As presently constituted, this court entertains the same view its elders entertained, that this definition, so long accepted and observed in Alabama, not only cannot be now improved upon, but that a wise conservatism forbids an effort, at this late day, to even reconsider the definition of Taylor v. Kelly with a view to its amplification or change. The jury had the benefit of this definition through appropriate instruction by the court. If any of the special charges requested for and refused to the contestant expressed, or were interpretable as expressing, a different or an amplified definition than that this court has so long approved, they were properly refused for that reason; or, on the other hand, if such refused charges were but reiterations of the definition afforded by Taylor v. Kelly, their refusal was not error. Gen. Acts 1915, p. 815.
The law in this state, governing the burden of proof on the issue tendered by a ground of contest of a will asserting the testator's mental incapacity to make a will at the time, has long been settled. It is that, after the proponent of the instrument has made out his prima facie case by proof of the execution thereof by the testator according to the forms prescribed by law, the burden of proof is on the contestant to show mental *Page 422 incapacity to make a will; that this the contestant may do by showing "habitual and fixed insanity" of the testator anterior to the time the paper was executed, and that when this character of insanity is shown the burden of proof shifts to the proponent, if he would sustain the instrument, to bring forword evidence inviting the conclusion that at the time of the execution of the instrument the testator had a lucid interval, and that the will was made during such interval. O'Donnell v. Rodiger, 76 Ala. 222, 52 Am. Rep. 322; Stubbs v. Houston, 33 Ala. 555; Cummings v. McDonnell, 189 Ala. 96,66 So. 717. These long-established rules were given to the jury by the court. Having clearly so instructed the jury, the court fully performed its function and duty with respect thereto, and was, of course, under no further obligation in that connection, thereby rendering impossible the commission of any error in declining contestant's requests for special instructions that either repeated the rules already given in charge to the jury or defined different rules on this subject. Gen. Acts, 1915, p. 815.
The report of the appeal will reproduce special charges 7 and 9 given to the jury at the request of contestees. That numbered 7 is first argued in the brief for appellant. Its manifest purpose was to advise the jury with respect to the burden of proof, where the mind of a testator was diseased, wholly deranged at times, and not deranged at other times. The object and effect was not to define mental capacity to make a valid will. In the circumstances hypothesized in this charge, the burden of proof remains upon the contestant — does not shift to the proponent or contestee as when "habitual and fixed insanity" is shown — to show that the testator was mentally incapacitated to make a will at the time he undertook to constitute the instrument in question his last will and testament. If its theory, purpose, or effect had been to define mental capacity to make a will, rather than to advise the jury as to the burden of proof, clearly it would have been subject to criticism under our decisions. This particular instruction (7) was approved in Cummings v. McDonnell, 189 Ala. 96, 104,66 So. 717, where it was numbered 29. That numbered 9 is in accord with the established rule in this state, defining the burden of proof on the issue of mental capacity vel non to make a valid will. It is a reproduction of charge numbered 8, which was given to the jury on the trial of Knox v. Knox, 95 Ala. 495,11 So. 125, 36 Am. St. Rep. 235. The court there found no fault in it. It is further justified by the consideration given by this court to charges 3 and 4 in Council v. Mayhew,172 Ala. 299, 308, 55 So. 314. Charge 2, given at the instance of contestees, is as follows:
"If the jury believe from the evidence that, at the time of the making of his will Samuel B. Bennett had mind and memory enough to recollect the property he wished to bequeath, the persons to whom he wished to bequeath it, and the manner in which he wished to dispose of it, then he had a right to make such disposition of his property."
This charge does not measure up to the requirements of the standard definition given in Taylor v. Kelly, supra, and the many decisions in its line. It appropriates only a part of the language found in charge 10, brought under review in Knox v. Knox, 95 Ala. 495, 11 So. 125, 36 Am. St. Rep. 235. In that case the court appears to have reviewed 18 special charges given at the instance of proponent. No individual treatment was accorded charge 10 in the opinion. It is manifest from the opinion that the court did not intend to announce a different definition of requisite mental capacity to make a will from that set forth in Taylor v. Kelly, and Kramer v. Weinert, both of which are cited in the Knox Case, 95 Ala. 504, 11 So. 125, 36 Am. St. Rep. 235. Indeed, this is confirmed when we consider that the author of the opinion in the Knox Case said in the subsequent opinion in Burney v. Torrey, 100 Ala. 172,14 So. 685, 46 Am. St. Rep. 33:
"The law is clearly and fully stated in Taylor v. Kelly,31 Ala. 59 [68 Am. Dec. 150], and though different expressions have been used, in later decisions, none were intended to alteror add to the requisites there declared." (Italics supplied.)
In all probability the difference between the definition set forth in the Taylor and Kramer Cases and that expressed, after a fashion, in charge 10 in the Knox Case did not appear to the court because a material feature of the charge was addressed to a disposition of property through the dictate of "partiality, pride or caprice"; and it may well have been that this thought in the instruction obscured the fact, in the judicial mind, that the requisites defined in the Taylor and Kramer Cases were not hypothesized in charge 10 — one instruction, only, of 18 under review.
The charge here under review (numbered 2) pretermits this element of mental qualification included in the formula approved in the Taylor, Kramer, and other cases, the capacity to know and to understand the business in which the testator was engaged when he executed the instrument. To ignore that element, to permit its elimination from a definition so vital in the issue of mental capacity vel non to make a will, is but to change the law, to modify the standard that has been too long set up and reconfirmed to be the subject of debate, much less reconsideration. It is clear, we think, that a mind may have all the elements or possess the capacity to discharge the functions enumerated in this charge (2) and still be a mind incapacitated to know and to understand the business of making a testamentary disposition of property. The elements enumerated in charge 2 are essential to adequate mental capacity to *Page 423 make a will, but they are much more restricted in processes and effects than the exercise by a mind of processes and qualities described in the phrase which requires capacity to know and to understand the business in which the testator is engaged, viz., the making of his will. The charge (2), affirmatively restricted, modified the approved formula in this state. It was hence error. We find no occasion, in this field of the law, to consult or to heed texts and decisions elsewhere, decisions delivered here having long since established the rules it is the duty of this court to observe. We have considered the suggestion that this error may have been cured by the oral charge of the court and by special charges given at the request of either or both of the litigants. This error was not removed of its necessarily prejudicial effect even neutralized by anything said otherwise to the jury. Notwithstanding the oral charge was an excellently framed instruction of a jury in this character of cause, it did not serve to render this error harmless. The only way to have cured the error or to have rendered it innocuous was to withdraw the charge. This was not done. For the single error in giving charge 2, the judgment should be reversed.
The majority of the court, consisting of Justices SAYRE, SOMERVILLE, GARDNER, and THOMAS, are of the opinion that a reversal of the decree should not follow the giving of charge 2 at the instance of the contestees. Doubtless the majority of the court will later set down the grounds of their conclusion.
ANDERSON, C. J., and MAYFIELD, J., concur in the opinion, and therefore hold that the decree should be reversed for the error in giving charge 2 at the instance of the contestees, and hence with the writer dissent.
It follows from the conclusion of the majority of the court that the decree below is affirmed.
Affirmed.