dissenting.
There is in this case,
1. Sti*ong affirmative proof of every element of testamentary capacity in the act itself, the will, the codicils and the circumstances of their making;
2. The overwhelming testimony of witnesses who knew the testator, and who also knew the requisites of testamentary capacity;
3. The conclusive evidence of the actual transaction of business, personal, professional, and as trustee, amounting during the period involved, to more than $1,000,000, and no pretense that any single transaction showed incapacity;
4. On the other side the testimony of interested witnesses and the opinions of experts not worth a rush against the proved facts.
There is no trace of undue influence in the making of the will or the codicils, or in the separate custody of them by the testator for years before his death. That he preferred one child over others, was his right as a parent, and that he preferred the son he did ought not to surprise any one who reads the testimony even of the others. That the motives of the favorite may have been partly mercenary would not affect the fact that he was the only one who stayed with and assisted his father in his old age, or whose conduct in fact was not such as tended to drive him to drink, or to the grave.
As I am of opinion that the evidence is not sufficient to permit a jury to set aside this will I would affirm the judgment.
Mr. Justice Fell joins in this dissent.