The rules which must govern this case are so well settled in this Commonwealth by judicial decision, that it is unnecessary to consider the numerous and conflicting adjudications in other states.
The subscribing witnesses to a will may testify to their opinion of the testator’s sanity, upon its being presented for probate, because that is one of the facts necessary to the validity of the will, which the law places them around the testator to attest and testify to. But other witnesses, having no peculiar skill or professional experience, can testify only to facts within their own *625knowledge, from which the condition of mind may be inferred, and are not permitted to state whether in their opinion, though derived from personal observation, a certain person was sane or insane at a particular time. Poole v. Richardson, 3 Mass. 330. Buckminster v. Perry, 4 Mass. 593. Needham v. Ide, 5 Pick. 510. Commonwealth v. Wilson, 1 Gray, 339. Hubbell v. Bissell, 2 Allen, 200. Commonwealth v. Fairbanks, Ib. 511. Townsend v. Pepperell, ante, 40. The reasons upon which these statements are excluded are, that they are not of facts, but opinions, of those having no peculiar duty or capacity to form them, upon a matter requiring special knowledge and skill to judge of intelligently, as to which every unskilled witness has a different standard, and which can be quite as well understood by the court or jury from proof of the details of the acts and conduct of the person whose mental capacity is in question. Evidence in probate cases in this Commonwealth is regulated by the common law, which has not adopted the looser practice, derived from the civil law, of the English ecclesiastical courts upon this subject. Eveleth v. Eveleth, 15 Mass. 307. Wright v. Tatham, 5 Cl. & Fin. 670.
An attending physician stands upon a different ground. It is his duty to make himself acquainted with the peculiarities, bodily and mental, of a person who is the subject of his care and advice; and he has the experience which results from the performance of the same duty in other cases. He is therefore permitted to testify from his own observation to his opinion of his patient’s mental capacity to make a will, in connection with the facts upon which that opinion is founded.
In the leading case of Hathorn v. King, 8 Mass. 371, which was argued by the ablest counsel before Justices Sedgwick, Sewall and Parker, the parties contesting the probate of a will asked the attending physicians of the testatrix “ Whether in their opinion, at the time of executing the will, the deceased was of sound and disposing mind and memory.” It was objected that the question of sanity must be determined by the conversation and actions of the party; that these were the only standard; and that the examination proposed would put the physicians in the place of the jury. But the court held the *626question competent, saying : “ The physicians may be inquired of, whether from the circumstances of the patient, and the symptoms they observed, they are capable of forming an opinion of the soundness of her mind, and if so, whether they from thence conclude that her mind was sound or unsound; and, in either case, they must state the circumstances or symptoms from which they draw their conclusions.” In Dickinson v. Barber, 9 Mass. 225, the depositions of physicians to their opinion that a person was insane were rejected solely because the facts on which the opinion was based were not testified to.
In Baxter v. Abbott, 7 Gray, 71, a case fully discussed by the counsel and the court, it was adjudged that a physician who had practised many years in the neighborhood of the testator, and had been at times his medical adviser, might be asked whether in his opinion he was sane or insane during three or four months preceding the execution of the will; although it appeared that the witness had never had charge of insane persons, except such cases as ordinarily occur in medical practice, and that he uniformly advised that patients in whom insanity appeared to be developed should be sent to an asylum. The statement in the per cwriam opinion in 2 Allen, 511, that this decision was not unanimous is an inadvertence; for the opinion of the court shows that the only division was upon a wholly different question. See 7 Gray, 83.
In Commonwealth v. Rich, 14 Gray, 335, upon a trial for murder, a physician who had not made the subject of mental disease a special study was allowed, without objection, to testify to his opinion of the defendant’s mental condition from personal observation; and was only restrained from giving an opinion as to his sanity or insanity upon a hypothetical case stated as arising out of the other testimony, and from stating whether from what he knew of the defendant’s mental powers he would in his opinion be competent to apply the rules of right and wrong to any state of circumstances concerning which he was under high excitement or the influence of an uncontrollable impulse, because neither of these inquiries related to matters within his own observation, or as to which he had shown himself to be qualified to testify as an expert.
*627In the case at bar, both of the physicians examined as witnesses had professionally attended the testator on his death-bed, and were rightly permitted to testify to their opinion of his mental capacity immediately before and after the execution of his will, accompanied by the symptoms and appearances upon which that opinion was formed. The short time during which they had any knowledge of the patient.might affect the weight, but not the competency, of their testimony.
The verdict of the jury, finding that the testator was not of sound mind at the time of executing the instrument offered for probate, must therefore be afiirmed, and a decree entered accordingly ; and it is unnecessary to consider the correctness of the rulings and instructions upon the issue of undue influence.
Decree of judge of probate reversed.