I disagree with the conclusion of the majority that there is reversible error. As is clear from the opinion, this is not a case where an erroneous instruction upon any important issue was *Page 307 given. The sole substantial error found is the trial court's failure to specifically discuss in its charge the significance of properly admitted testimony concerning the testamentary capacity of the testatrix and the lack of it, as of other than the very time of the execution of the will. Reversal is predicated upon the court's failure to make sufficiently clear to the jury that the ultimate and controlling question was as to the mental condition and capacity of the testatrix when she executed the instrument, that is, in the words of the opinion, "at that very time and none other." To my mind the charge as given, read in the light of the whole record, completely refutes this conclusion, for it contains explicit and reiterated instructions strictly confining the jury's finding upon the issue of the testatrix's capacity to the very time of the execution of the will. It was, in short, correct in law, adapted to the issues and sufficient for the guidance of the jury. No request to charge was made by the defendant. The failure to give the specific instructions which the opinion would require did not therefore constitute error. Schmeiske v. Laubin, 109 Conn. 206, 211, 145 A. 890; Distefano v. Universal Trucking Co., 116 Conn. 249,253, 164 A. 492. However apropos that portion of the charge from Dick v. Colonial Trust Co. quoted in the opinion might have been in the present case, I cannot agree that in the absence of any request, the court's failure to include it converted what was otherwise a correct and adequate charge into one fatally misleading and defective. The fact that in that case this court did not hold the charge quoted essential in such a case, but merely that the charge upon mental capacity as there given, attacked on the appeal, was sufficient, lends strength to my conclusion.
The finding reveals that evidence as to the testatrix's capacity during a considerable period before and after *Page 308 the execution of the will was offered by both parties. Under the rule of law which neither side questioned at the trial, the only possible significance of this evidence was to throw light upon her mental capacity at the time when she executed the will. As the opinion points out, the record shows "that the evidence had . . . been exhaustively reviewed by counsel in argument . . . ." No objection appearing of record, the necessary inference follows that the voluminous relevant evidence was fully argued by counsel upon this issue as defined and restricted by this rule of law. With this mutual acceptance of the rule by the parties and its proper application thus emphasized before the jury, the case is not one where conflicting claims of counsel required the specific instruction of the Dick case for the jury's guidance.
The charge as given made clear that however broad the field explored by this evidence of the testatrix's mental capacity, the sole question for the jury's determination was what that capacity was at the very time when she executed the will. Although the court did not charge in the language of the Dick case, its recital of the conflicting claims of the parties sufficiently gave effect to the rule there stated. Thus it charged that the plaintiffs claimed that "on March 26, 1937, Mrs. Brown was in a weakened condition both mentally and physically," and then after rehearsing the various claimed afflictions, ailments and "mental deterioration" between 1930 and that date, concluded: "Hence they claim from the foregoing as well as other facts alleged to have been proven, that on March 26th Mrs. Brown was not of sound mind." And then referring to the claims of the defendant the court went on to say that he claimed "that Mrs. Brown was perfectly competent on that day to make a will," and that Mrs. Brown's various afflictions "had no material effect upon her *Page 309 mental capacity, which throughout her days until a week before her death was one of soundness." In addition, twice before and four times after this, in the course of the charge, the court expressly instructed the jury that the testatrix's capacity must be determined as of the time of the execution of the will. And finally in response to the last of these instructions, the jury answering in writing an interrogatory which the court had submitted, expressly found that the testatrix was not "of sound mind at the time of the execution of the will of March 26, 1937." The test of sufficient instructions is not whether they are "as accurate . . . upon legal propositions as the opinions of a court of last resort," but whether they fairly present "the case to the jury, in such a way that injustice was not done under the rule of law to the legal rights of either litigant." Pratt, Read Co. v. New York, N. H. H.R. Co., 102 Conn. 735, 740, 130 A. 102. In my judgment the court's instructions in question met this test.
I further disagree with the suggestion in the opinion that the trial court's reference to the testimony of Dr. Lawson "may well have had an effect . . . of harmfully detracting from appreciation by the jury" of the weight properly to be attributed to his testimony as attending physician of the testatrix. The context of the charge makes sufficiently clear that when the court referred to him as having testified "as do ordinary witnesses," the effect of its statement was restricted to directing the jury's attention to the difference in nature between his testimony based upon his personal observation of the testatrix, which was elicited without resort to any hypothetical question, and that of the other doctors, all of whom testified as expert witnesses only, predicating their testimony entirely upon hypothetical questions propounded to them. *Page 310 Under these circumstances this instruction of the court does not constitute even the make-weight for error intimated by the majority.
In my opinion there is no error.
In this opinion JENNINGS, J., concurred.