delivered the opinion of the court, October 5th, 1885.
In the introductory part of the charge, the learned judge without doubt fully and fairly presented the precise questions, which were for the consideration of the jury, s-tating with clearness and accuracy the principles of law which should govern in their determination. He quoted at length from the opinion of this court in the very recent case of Wilson v. Mitchell, 5 Out., 495, which unquestionably contains a concise and correct exposition of the law of this state upon the questions involved in part, as follows: “ A man of sound mind and disposing memory is one who has a full and intelligent knowledge of the act he is engaged in, a full knowledge of the property he possesses, an intelligent perception and understanding of the disposition lie desires to make of it, and of the persons and objects he desires shall be the recipients of his bounty. It is not necessary that he collect all these in one review. If he understands in detail all that he is about, and chooses with understanding and reason between one disposition and another, it is sufficient for the making of a will: Daniel v. Daniel, 39 Pa. St., 191; Tawney v. Long, 76 Id., 106. If from any cause he is so enfeebled in mind as to be *345incapable of knowing the property lie possesses, of appreciating the effect of any disposition made by him of it, and of understanding to whom he intends to bequeath it, he is without the requisite testamentary capacity: Leech v. Leech, 21 Id., 67.”
No one can doubt the entire accuracy of this instruction. In the application of the law, as thus declared, to the particular facts of the case under consideration, however, the learned, judge was, we think, most unfortunate. lie says: “ One or two of the most intelligent witnesses, as it struck us, when the question was put to them, would not say that he was crazy, but1 gave it as their opinion that he was not capable of making a will.” ..... “If we understand the doctrine as laid down by Judge Tjrunkey in that portion of the opinion which we read in your hearing, then the testimony of at least these two of defendants’ witnesses who would not testify that he was crazy amounts to nothing; their opinion that he was not competent to make a will amounts to nothing because, if they had had sufficient facts to convince them that he was crazy they would have so testified, no doubt, and it then would have been evidence for you to have considered in determining whether or not he was crazy. But, if you believe that he was crazy, that from any cause he was enfeebled in mind that lie did not know what he was doing on the 6th day of December, 1881, when he made this will, then of course you must find against the plaintiff and against the will and in favor of the defendants. But do the facts which the_y have given in evidence so satisfy you, gentlemen of the jury — do they satisfy you that this man was crazy 1 ”
In an issue devimvit vel non, no question is raised as to whether or not the testator is crazy, the precise question for determination is whether or not his mind and memory were sufficiently sound to enable him to know and to understand the business in which he was engaged at the time when he executed the will; yet the learned judge says that the opinion of the witnesses, that he was not competent to make a will, amounts to nothing for, if the facts had been sufficient to convince them that he wa.s crazy, they would have so testified; “ and that would have been evidence for the jury in determining whether or not the testator was crazy.” The word “ crazy ” in its popular sense imports a broken, shattered or deranged mind rather than one enfeebled by age or disease. But, whilst testamentary incapacity may result either from mental derangement accompanied by delusion or from mental imbecility, neither or both of these states or conditions of the mind are the exact equivalent of what is called testamentary incapacity ; for the existence of delusion on one subject is not *346inconsistent with sufficient soundness of mind on another (Bitner v. Bitner, 65 Pa. St., 347; O’Neil v. Evans, 1 Am. L. J., 522), and mere feebleness of intellect is insufficient to avoid a will: Daniel v. Daniel, 39 Pa. St., 191. From whatever cause the alleged incapacity may be supposed to arise, if the testator has mind and memory sufficiently sound to dispose of bis estate with judgment and discretion, the disposition is valid; all that can be required in any case is that the strength of the mind shall bq equal to the purpose to which it is applied.
Similar in some respects to this was the ease of McTaggart v. Thompson, 2 Harris, 149, where Mr. Justice Rogers says: “From the remarks made by the court the jury were induced to believe that, unless they found the testator, in the language of the judge, ‘crazy,’ he had the requisite capacity to make a valid will. But it is not requisite that such derangement of intellect should be proved to authorize the jury to set aside the will. Imbecility of intellect, though short of insanity, has been held sufficient for that purpose. This is a principle too ..plain to need the aid of authority.”
The rule is well settled that, on a question of testamentary capacity, the opinions of witnesses, when they state facts as the ground of their opinions, are competent evidence, and are entitled to the consideration of the jury: Dickinson v. Dickinson, 11 P. F. S., 404. “What is mental competency (Bricker v. Lightner’s Ex’r, 4 Wr, 205) to make a contract or will, or to deliver truthful testimony, is a question which must forever depend very greatly upon the opinions of those who have had opportunities for observing the conduct of the party and the development of the intellectual faculties. Facts und circumstances are to be sworn to as the groundwork of the opinions offered, and as affording tests of the soundness of the opinions; but opinions, the results of observed facts, are never excluded in such cases. It is the highest and most direct evidence the nature of the question can afford.”
The charge is, without doubt; fairly open to the criticism that it was misleading; in part it is undoubtedly correct, and in part, on the same question, it is as clearly wrong; as a whole it is inconsistent and incongruous, and we are not to suppose that a jury would be able, with proper discrimination, to follow that portion which was correct, and to discard that' which was erroneous.
It is the duty of the- court to determine the sufficiency of the evidence, and it is error, if the point is made, to submit the question of testamentary capacity to a jury unless it bo sufficient: Cauffman v. Long, 1 Norris, 72. Insufficient evidence is regarded as no evidence at all; if there be evidence, however, from which the fact may be fairly inferred, it is *347sufficient to send the case to the jury, no difference how strong and persuasive may be the countervailing proof; the conflict in the evidence, the contrariety of the opinions expressed, and the veracity of the witnesses, are matters peculiarly within the province of the jury, and with which the court has nothing to do. The evidence on part of the defendants .in this case was, we think, sufficient to justify the submission; no question would appear to have been made as to that in the trial below, and that the court took this view of the case is apparent from the fact that the cause was submitted. But, although the case was submitted to the jury, the opinion of the court upon the evidence was so strongly expressed as to be equivalent to a binding instruction. “We say to you, gentlemen of the jury,” says the court, “ that, after hearing all of the evidence adduced on the part of the defendants going to show that Peter Shaver, the testator named in this will, was of such an unsound mind as to make him incapable in law of making a will, in our opinion, but it is for you to find from all the evidence, is not sufficient to set aside this will. It does not come up to the requirements of the law; there is no failure of memory proven — there is not a single act proven that shows that lie was actually crazy.” Strong expressions of opinions by the court upon the evidence are sometimes tolerated, but they should be in such form as not. to mislead, or to withdraw the consideration of the question from the jury.
The testimony of the subscribing witnesses to a will is, of course, entitled to great respect; in the absence of countervailing proof, it is decisive; but the court should not hinge the cause upon the testimony or opinion of a single witness, although a subscribing witness, if there are other material facts and circumstances, and opinions of other witnesses in evidence, bearing upon the question of the testator’s capacity. To say that the ease depends upon the truth or falsity of the evidence of a single witness, although he may have possessed extraordinary facilities for judging, is to give too much prominence to a part of the case only; the evidence should be submitted to the jury as a connected whole: McTaggart v. Thompson, 14 Penn. St., 149; Irish v. Smith, 8 S. & R., 581; Rambler v. Tryon, 7 S. & R., 92.
What has been said, in a general way, covers the matters embraced in the first seven and the ninth assignments of error, and, for the reasons indicated we are of opinion that the judgment must be reversed. The remaining assignments are, we think, without merit, and we will but briefly refer to them.
8. Certainly there was no sufficient evidence of the existence of any conspiracy on the part of Dr. McCarthy, II. E. Shaffer and others in the making of this will; there was an indelicate, *348perhaps an indecent, haste attending its probate, but there is no ground for the charge of conspiracy.
10. The will Avas properly received in evidence: Wikoff’s Appeal, 15 Penn. St., 281; Rees, Adm’r v. Stille, 38 Penn. St., 138.
11, 12, 13, 24. The interests of legatees and devisees under a will are not joint but several, and hence the declarations of one cannot be given in evidence to affect or prejudice the others : Clark v. Morrison, 1 Casey, 453; Irwin v. West, 32 P. F. S., 157.
14, 15, 16, 17, 18, 19, 21. William Hurtzman testified to nothing upon which an opinion could be formed by any one. In the spring of 1881, and again in the fall of the same year, Hurtzman says, as he was passing along the public road to Mt. Union, he saw the testator standing on the roadside. He seemed to be in a study, and when spoken to did not reply. “ It seemed,” says the Avitness, “ as though he did not recognize or know that I passed by.” Was there anything in this incident which tended to show want of testamentary capacity, or from which any man, expert or otherwise, could by any possibility form any intelligent opinion as to the soundness or unsoundness of Peter Shaver’s mind? We think not. As we have already said, facts and circumstances must furnish the ground of, the opinion expressed; Avhether they are relevant and pertinent for the purpose is a question for the determination of the court, as in other cases, and the jury must primarily rely upon these facts and circumstances as affording a test of the soundness of the opinion given. On the contrary, however, we think the facts detailed by Bucher, Eberbrun, James D. and George Quarry, Messimore and Bathurst Avere such as justified the expression of an opinion. They related to transactions involving, to some degree at least, the exercise of judgment and a knowledge of business. They did not furnish perhaps any very strong instance or illustration of mental vigor on part of the testator, but their tendency Avas plainly in that direction; the testimony was therefore admissible.
20. It Avas clearly within the discretionary power of the court to allow the recall of William Shaver for further cross-examination ; especially as it was alleged to be upon a matter which had been embraced in his previous examination, but was omitted by the reporter.
The 22d and 23d assignments are wholly without merit.
The judgment is reversed, and a venire facias de novo awarded.