This is an appeal from the decree of the judge of probate approving and allowing the will of Amos Barnes, and ordering the same to be recorded.
The case comes before us on a motion for a new trial, and on exceptions.
It appears from the evidence that the testator, px*ior to 1842, had become somewhat intemperate in his habits, and upon application duly made, was placed under guardianship, and his son Amos appointed his guardian; that he was indignant at this, as well as dissatisfied with the management of his estate by his guardian; that in 1845 at the request of most of his children, he was discharged from guardianship, and became temperate in his habits; that on July 24, 1848, his wife, the mother of the appellant and of his other children, six in all, died; that within a short time after her death and with discreditable haste, he married the appellee ; that this marriage gave great offense to his children; that his will was made and signed April 27, I860; that he died January 10,1868, leaving some small parcels of real and his personal property to the appellee, and to her grand-daughter, the child of her illegitimate *294daughter, and equal and nominal sums to his other children; that the whole estate would amount to some $1700, and that at the time of making his will, his children were all in comfortable circumstances, save perhaps one.
An appeal was taken by Harvey Barnes, and. the following reasons asigned therefor :
I. “Because the said Amos Barnes did not sign or legally execute said instrument.” On the trial it was not denied that the will was signed by him.
II. “Because said instrument was not executed in the presence of three disinterested witnesses.” The disinterestedness of the witnesses was not denied.
III. “Because the persons who subscribed said instrumentas witnesses, did not subscribe the same at the request of the said Amos Barnes, nor in his presence, nor in the presence of each other.”
That the requirements of the statute in all these respects were fully complied with, was satisfactorily proved, and the facts were so found by the jury.
IT. “Because the said Amos Barnes at the time of the said supposed execution of said instrument, was not of sound mind.”
The evidence shew the testator to be an eccentric man, addicted to talking to himself, making odd gestures, moody, of a quick temper, passionate; but from 1845 to 1860 he kept a small store, bought goods in Boston and Bockland, supported his family, and managed his own affairs without any interference from the appellant-, who lived near, or from any of his children who lived in the neighborhood, and that his habits were temperate.
Y. “Because the said Amos Barnes was unduly influenced by the said Sarah B. Barnes, and other persons, in the making and execution of said instrument.”
Nothing is found in the evidence tending in the remotest decree, to show undue influence on the part of the appellee or any one else. So far as the evidence discloses, Mrs. Barnes did her duty to her husband, notwithstanding the ill omened auspices of the marriage, and was entitled to the influence, which kindness, and attention to the wants of her husband, and care for her household, would naturally give. Nothing more is shown.
*295VI. “Because in the making and execution of said instrument, the said Amos Barnes was influenced by an unfounded and unreasonable prejudice against his own children and heirs-at-law.”
From the time of the marriage of his father in 1848, to his death in 1868, though living near, the appellant never entered his father’s house, until after his death to attend his funeral. One of his daughters on the eve of his death, visited her dying father. Another daughter was at his house three times during this period of twenty years, and all were most unfilially infrequent in their visits. Tinder such circumstances, the testator might have conceived a prejudice, but it is difficult to imagine it either unreasonable or unfounded.
The verdict, it is apparent, is in conformity with the evidence, and could not have been otherwise, without entirely disregarding its force and effect.
The case being heard upon appeal, the only questions open for consideration are those assigned in the reasons for appeal. The appellant is limited to those. Gilman v. Gilman, 53 Maine, 184. Patrick v. Cowles, 45 N. H. 553.
Numerous exceptions have been alleged to the rulings of the presiding justice, which will be considered in the order in which they were discussed by the learned counsel for the appellant in his able and exhaustive argument.
Exception is taken as to the ruling in relation to the due execution of the will.
The signature of the testator was not denied. That of the attesting witnesses was proved. One of the witnesses had deceased, the other two, one of whom was a lawyer, were residents of other states. The testator went to have his will made, and returned with it. His signature appears first on the will. Underneath is written “signed and sealed by the said Amos Barnes and by him declared to be his last will and testament in our presence, and we each of us in his presence, and in the presence of each other, and at the same time subscribed our names as witnesses.” Then follow the signatures of the attesting witnesses.
T. "W. Ohadbourne, one of the attesting witnesses, testifies that he never signed a will unless it was in the presence of other subserib-*296ing witnesses, and of the testator, and at Ms request, and that he was satisfied this was no exception to his usual course, though he had no distinct recollection of the matter.
Upon this evidence, the presiding judge after stating the precise requirements of the statute, left it to the jury to determine from all the facts and circumstances, whether or not the will had been executed in accordance therewith.
Proof of .the due execution of a will may be shown by direct evidence, or inferred from circumstances. Gerrish v. Nason, 22 Maine, 438. The attesting witnesses were dead or out of the state.! When that is the case, proof of their handwriting is sufficient. Nickerson v. Buck, 12 Cush. 332, 344. Ela v. Edwards, 16 Cray, 91, 93. Every person making a will is presumed to have knowledge of its contents, and if it is alleged that he had not such knowledge, or that he was induced to execute it by misrepresentation, the onus prohandi is with those who make the objection. Pettes v. Bingham, 10 N.H. 514. The will being duly executed the law presumes he did it understandingly. Sechrest v. Edwards, 4 Met. (Ky) 163. That the testator signed the will first is indicated by the will, and as is well remarked by Dewey, J., in Dewey v. Dewey, 1 Met. 349, 354. “It can hardly be supposed that the testator, who was by his own active agency procuring the authentication of the instrument by the requisite witnesses, would have omitted the first step necessary to its due execution, viz : the signature by himself.”
Indeed a will may be admitted to probate though neither of the surviving attesting witnesses recollect the circumstances of its execution. Eliot v. Eliot, 10 Allen, 357.
It would be monstrous if a will was to be defeated because after a great lapse of time the witnesses may have forgotten the facts attending its execution. A proper attestation clause showing that all the statute formalities have been complied with, will, in the absence of proof to the contrary, be presumptive evidence of the fact, after the death of the attesting witnesses or their failure to recollect what took place at the execution of the will. Chaffee v. Baptist Missionary Society, 10 Paige, 85.
Here the attestation clause shew a full compliance with the requirements of the statute.
*297So far as the requests were in accordance with law, they were given in the charge. Those not given, it will be seen, were adverse to authorities cited, and the general principles of law. The facts disclosed abundantly justified the findings of the jury; and their force and effect were left to be determined by them in accordance with their good judgment.
Complaint is made that the charge in relation to the burden of proof was erroneous. On this branch of the case, the judge instructed the jury that a person of sound mind of the age of twenty-one years might dispose of his real and personal estate, by will, in writing signed by him, or by some person for him at his request, and subscribed in his presence by three credible attesting witnesses, not beneficially interested under the will; that the burden of proof was upon the party claiming that the will had been duly signed, executed and published by the party whose will it purports to be, and that the burden of proof was upon Mrs. Barnes to bring her case within the provisions of the statute of this state; and that the degree of intellectual vigor necessary to render a will valid, was the possession of mental capacity sufficient to transact business, and with an intelligent understanding of what he is doing.
It needs no citation of authorities to show that these instructions were sufficiently favorable to the appellant.
One of the reasons of appeal was that the will was the result of undue influence on the part of the wife. In reference to this, the instruction was that the influence must be of such a degree as to take away from the testator his free agency—such as he is too weak to resist—such as to render the act no longer that of a capable testator. A wife may influence her husband by kindness and affection, but the influence of kindness and affection will not defeat a will. If the wife by neatne'ss, prudence and economy makes home more comfortable and her husband more happy, that is not such influence as will defeat a will.
These views are in strict accordance with the law as stated by Mellen, C. J., in Small v. Small, 4 Maine, 220. The influence must amount either to deception or else to force and coercion, in either case destroying free agency. Gardner v. Gardner, 22 Wend. 526. The party alleging fraud or undue influence has the *298burden of proof upon him to show it. Baldwin v. Parker, 99 Mass., 79.
Great stress has been laid by the counsel for the appellant upon the ruling of the presiding judge as to the law in relation to an insane delusion on the part of the testator in reference to his children ; but this question is not open to him. The sixth reason of appeal contains only the allegation that the testator “was influenced by an unfounded and unreasonable prejudice against his own children and heirs-at-law.” Here is no assertion of the existence of any insane delusion on the part of the testator. But prejudice is not insane delusion. Stackhouse v. Horton, 15 N. J. Chancery Rep. 202. When there are not only some plausible grounds for the opinion entertained by the testator, but much reason to doubt whether they are not entirely just and sound it would be absurd to pronounce them insane delusions. Ib. It hardly lies in the mouth of a son, who for twenty-three years, though living opposite, never entered his father’s house, to allege prejudice on his part. But whether there was prejudice or not, that is not insane delusion; and the issue of such delusion cannot be raised under the sixth reason. In probate appeals “the appellants,” observes Morton, J., in Boynton v. Dyer, 18 Pick. 1, “are restricted to such points as are specified in their reasons of appeal.” To the same effect is the case of Bean v. Burleigh, 4 N. H. 550. If then the question of insane delusion was raised by the counsel for the appellant without right or law, he cannot be permitted to take advantage of his own wrong nor can exceptions be sustained, even if the court, in its rulings as to a matter not legally before it, may have erred.
On the subject of delusion the court instructed the jury that the existence of a delusion does not necessarilly vitiate a will unless the delusion form the ground work of it, or unless decisive evidence be given that at the time of making the will the testator’s mind was influenced by it. The insane delusion must be one forming the ground work of his will and at the time he made it he must be acting under it. These propositions are fully supported by all the authorities on the subject.
The counsel for the appellant requested the following instruc-*299ti on ? “that even if said Barnes at the time of the execution of said instrument had sufficient capacity, memory and sense to know and comprehend and transact ordinary business transactions, yet in regard to his children was subject to the delusion that they had unnecessarily and unjustly caused him to be put under guardianship and taken the control of his property from him, when such was not the fact and the children behaved in a dutiful and proper manner in causing it to be imposed upon him, and the provision of his will was affected by this delusion, he is not to bo considered as of sound mind when he signed and executed it, and if such delusion existed as to any one of his daughters who favored his discharge from guardianship at his request and he acted upon it, the will is equally void as if the delusion existed as to all his children.”
The court gave this instruction leaving the jury to consider whether or not there was any delusion and instructing them that those who assert the delusion are bound to establish it.
It has already been shown that the question of delusion was not and could not be open to the appellant.
It may further be remarked that if there is no evidence upon which to base a request there can be no occasion for complaint for not giving it. A request must be good in its totality. Now it is difficult to see upon reading carefully the testimony that there is evidence of any delusion as to any one of his daughters or as to the other children in reference to their unfilial treatment.
Further, assuming the facts as stated in the request it would then be for the jury to determine whether he was to be considered of sound mind or not. The request is that the judge should rule peremptorily, thus withdrawing the decision from the tribunal to which it of right belonged.
It is apparent, therefore, that the request was one not pertinent to the questions involved in the reasons of appeal, that it was one which the. appellant had no right to ask, nor no cause of complaint if not given; still less can he complain of it as given.
It must be borne in mind that the presiding judge had already instructed the jury that the burden of proof was upon the proponent to show the sanity of the testator. That instruction was neither modified nor withdrawn. It still remained in full force. The burden still remained upon the proponent. But was she *300bound to go further ? While she was bound to prove sanity, was she bound to negative insanity before and without proof of its existenoe ? Assuredly not. “Every person is presumed to be of perfect mind and memory, unless the contrary be proved. . . . because where the contrary appeareth not, the law presumeth it—It need not be proved.” Swinburn on Wills, 45 pt. 2, § 3, pi. 4. “It must be admitted, we think, upon careful examination of all the cases, that the burden of the proof of insanity, in the case of a will, equally with that of a deed or other contract, is upon the party alleging it, and who claims the benefit of the fact, when established.” 1 Kedfield on Wills, 16, (3 ed.,) 31. “It is, therefore, proper to say,” observes Bell, C. J., in Perkins v. Perkins, 39 N. H. 163, that the burden of proving the sanity of the testator and all the other requirements of the law to make a valid will, is upon the party who asserts its validity. This burden remains upon him till the close of the trial, though he need introduce no proof upon this point until something appears to the contrary.”
“It is not improper to say that the burden of proving the insanity of the testator is on the party opposing the will. If he relies on that fact, he must, of course, lay evidence before the jury sufficient to out weigh the presumption of law and the proof on the other side and to convince the jury, or he must have a verdict against him. . . . But it is after all a question merely verbal; a question of the propriety of certain forms of expression ; for we apprehend that whatever be the terms used, the course of practice is everywhere the same.” In this case the general rule imposing the burden on the plaintiff was left unqualified.
Where life is involved, it was held to establish a defense on the ground of insanity, the burden is on the defendant to prove by a preponderance of evidence, that at the time of committing the act he was laboring under such defect of reason, from disease of the mind, as not to know the nature or quality of the act he was doing; of if he did, that he did not know he was doing what was wrong. While such is the law in a case of murder, it would seem that in the case of a will, the party alleging insanity should offer evidence tending to show that fact before the proponent should be called upon to negative its existence.
The ninth requested instruction was “that if the jury consider *301the provisions of the will to be unjust and unnatural and there is no sufficient reason shown why he should give the whole of his property to his wife and her granddaughter (except the nominal sums mentioned in the will,) to the exclusion of his own children and especially his daughter Mary, they are at liberty to infer from the facts that the said Barnes labored under some unsoundness of mind or was under some undue influence in making the will.”
This requested instruction was not given. This could not properly have been done. The jury were not to judge of the sufficiency of the reasons which induced the bequests in the will. Their sufficiency was for the testator. If of sane mind, it was for him to determine what he would do with his own, not for any jury. lie was not to show the reasons why, among possible objects of his bounty, being sane, he preferred one rather than another and to give reasons for his so doing, nor was it incumbent upon the appellee so to do. There may be some unsoundness of mind on some subjects, that do not relate either to his property or to those who are the proper objects of his bounty, while as to other matters, his sanity is unquestioned. Robinson v. Adams, 62 Maine, 369. There may be some undue influence attempted, yet not sufficient to control the testator.
Henry Elwell was asked the question “State whether you have ever observed in Mr. Barnes any indications of any unsoundness of mind ?” to which he answered “I have not.”. It is objected that he was not an expert. But the materiality of the question vanishes when knowledge of the subject matter of inquiry is negatived by the "witness.
Objections are taken to the exclusion of the following questions put to Jason Davis: “State whether he (Barnes) appeared to be rational at that time ? State about his appearance at that time % State what acts you saw, if any, indicating “his mind was not sound ?”
But subsequently he was asked by the counsel for the appellant “if he saw any peculiar and unusual acts in him,” and was directed to state what they “were, which he did very fully. He was further directed to state any thing he saw him do or heard him say that struck him as peculiar or different from other people. The appellant has in this respect no cause of exception.
*302He was asked whether a great change came over him in his latter days. As the will was in 1860 and as the testator died in 1868 the change, whatever it was, occurring in his latter days could not be received to defeat a will made long before.
The witness was asked whether he observed him between 1854 and 1860 and if he observed any change in his appearance and conduct from what it was prior to his being put under guardianship ? To this question an objection was interposed and it was excluded. The testator was put under guardianship in 1842 for intemperance. The witness had been fully inquired about as to the testator’s conduct before that time and up to 1860. It was immaterial whether there was a change or not. The question was his mental soundness in 1860. All that was necessary to a full understanding of the case had been elicited, and there must be some limits to the examination of witnesses.
There was an offer made to prove that the testator made unusual noises in his store. The court ruled that he might answer the question if he knew he (Barnes) was there or if it was his voice ; but as the witness did not know he was there and could not state that it was his voice, his account of the usual or unusual noises made by somebody, if made, were not admitted upon the question of the testator’s sanity, nor should they have been.
The answer of Harvey that the testator “was incapable of doing business,” whether admissible or not, was not stricken out and the appellant had the benefit of his testimony.
Otis Tolman, jr., was asked by the appellant after having stated that the testator was accustomed to talk to himself and to animals, the following question, “state whether or not his talk was incoherent ?” This was excluded, but the court said “he may state, if he heard what was said, and any thing about it, and whether it had any meaning in it, if he heard it.” To the question of the appellant’s attorney “can you state whether it had any meaning or not ?” the witness answered, “I would if I could recollect what he said.”
In the examination of E. O. Long the presiding judge excluded an answer to this question “whether his.condition attracted the general attention of the people.” Whether it did or did not is immaterial, nor was the question proper.
The inquiry made of W. N. Thorndike whether he “appeared *303to be capable of managing business during the last few years of his life” was not answered. The ruling on that subject was correct. It was not whether he appeared capable or not, but whether he was so capable. Besides, whether capable or not the last few years of his life is immaterial. He might have been incapable when he died in 1868 and capable in 1860 when the will was made.
The counsel for the appellant, to show the influence of the appellee over the testator, offered to prove that he had been with this woman (Mrs. Barnes,) at the time of the mother’s death in the room below and he would inquire “Is she not dead yet ? I never saw a person so long dying,” and on the next day he went away with this woman. This was excluded. It related to events in 1815 and neither shew nor tended to show the influence of the appellee fifteen years after, nor indeed at the time.
Joseph H. Estabrook, a physician, was called as an expert. He was asked what opinion he formed upon his examination of the testator. The court ruled that he might “be inquired of as to the circumstances and the symptoms that he observed and then state his inference from them.” This is objected to as too restricted. The witness then proceeded to state all the facts within his recollection tending to show insanity. He was then asked to state whether he judged him sane or insane, to which he replied, “I thought him of unsound mind.” After a further examination in relation to his means of knowledge in answer to the following question proposed by the appellant: “From these observations what was your opinion as to his mental soundness ?” the answer was, “I should pronounce him to be of unsound mind as I looked at him at the time.” To other questions he said, “I saw no change that would give any better opinion of his condition,” and that “he appeared worse at subsequent periods which might be attributed to increased age.”
The examination of this expert by the counsel for the appellant will show that there was no restriction which prevented his telling all he knew in relation to the insanity of the testator as well as all he thought upon the subject. The appellant has no ground of complaint.
It is objected that witnesses were allowed to give their opinion *304as to the business capacity of the testator. Evidence was received showing that he kept store, bought and sold goods, and supported his family. This was proper on the question of intellectual capacity to make his will.
But the learned ‘counsel says, “the question at issue was one of topical insanity ; whether the testator was not under the influence of an insane delusion respecting the character and conduct of his children,” If so, the evidence could have done no harm. If his business capacity was shown to be good, proving what was not denied, might have taken time, but it could not have been productive of injury to the appellant'.
There was no objection to the legatees stating that they had received their legacies. Whether the fact was shown by their receipts, the signatures not being questioned, or from their own lips, was entirely immaterial.
The condition of the testator’s house was entirely immaterial to the issue and could not have any effect upon the result. A new trial will not be had in consequence of the introduction of irrelevant testimony, which could not influence the decision of the jury.
It is objected that Herbert T. Hewitt testified that he delivered a message from the appellee to the appellant that his father had fallen and injured himself. As the appellant had previously stated the fact of receiving the message, the confirmation of his testimony could not have harmed him.
The children of the testator had testified in the case in relation to the habits and mental condition of their father. The petition signed by’them for his discharge from guardianship was received and was admissible to contradict their testimony on these subjects. It was admitted for no other purpose.
The statements of Chadbourn as to what was his usual course of business, he not remembering the circumstances attendant upon the execution of the will was properly received.
Motion and exceptions overruled.
Costs for the appellee.
Walton, Dioeerson, Barrows, Daneorth and Virgin, JJ., concurred in the result.