Opinion,
Mr. Justice Green :A most patient and careful reading of all the testimony in this case impels us to say that there is absolutely no evidence. whatever upon which it would be at all possible to sustain a verdict adverse to the will in question. We concur fully with all that is said in the opinion of the learned court below, and affirm the decree for the reasons there stated. There are really no facts in proof which show, or even tend to show, a condition of mental unsoundness at the execution of the codicil. The only opinion expressed that is worth a moment’s consideration is that of Dr. Strittmatter, and he was unable to say whether the testator was drunk or sober, or had incipient symptoms of mania a potu, at the time he saw him. The testator was suffering from the effects of over-stimulation, and exhibited some, though not by any means the worst, of the symptoms of that condition. The doctor says: “ He was very nervous, weak, and suffering from mental and physical prostration at the time; it was attributed to over-stimulation.” He adds, “ there were times when he would be able to make or alter a will during the time I saw him, and there were times when he was too incoherent to do so, that is, to make or alter a will.” The whole of the testimony of this witness shows a condition of mind and body constantly seen in persons who have been taking alcohol in excess, but he does not state a single fact which exhibits in any degree a condition of mental unsoundness indicating an inability to comprehend the nature and character of the testamentary act or the particular manner of its exercise in the instance in question. So far from this being the case, the contestant’s chief witness, Elizabeth Lee, testified that the testator told her immediately after the codicil was executed, that he had changed the will, and “ had taken away five hundred dollars from the old men at the home and had given it to *277.Billy Coleman.” As this was precisely what he had done, this testimony is proof conclusive that the testator was thoroughly acquainted with the contents of the codicil, and that he knew the objects and extent of his bounty both in the will and codicil, and the exact change which the latter made in the former.
The testimony of the two women, the only other witnesses for the contestants who expressed opinions, is of the most in-consequent and frivolous character, unsupported by any facts tending to show actual unsoundness of mind. If we regard the testimony of the proponents, it is simply overwhelming. The codicil was written by an attorney entirely disinterested, and solely at the dictation of the testator, who subsequently read it over, and said he was satisfied, and then executed it in the presence of two subscribing witnesses, both of whom testified that he was perfectly sound and rational at the time. A number of other witnesses who had known him long and intimately, testified that he was a man of unusual force of mind, and entirely sound at all times. The testator went to Europe, after the codicil was executed, with his father, and was gone several months, attended to business when at home, and in all respects conducted himself as a rational man. He was given to the bad habit of excessive drinking at times, but knew his failing well, and voluntarily went to a home for inebriates a number of times in order to avoid indulgence. Those who knew him best, both at the home and in his business, and who were entirely impartial and disinterested, most emphatically pronounced him of perfectly sound mind at all times.
When it is considered that the oidy allegation against his mental soundness was his habit of excessive drinking; that this was not continuous, but periodical; that the fact of even ordinary intoxication at the time the codicil was executed is not proved, and that it is proved without contradiction that the codicil was dictated by himself and perfectly well understood by him both at the time of execution and after, it would be an act of judicial unwisdom to subject the parties to the cost and vexation of a trial that could have but one result, and that prejudicial to the appellant. We are most clearly of opinion that the issue was properly refused by the court below.
Decree affirmed and appeal dismissed at the cost of the appellant.