The probate court committed no error, in permitting the subscribing witness, Wilson, to testify to his opinion of the sanity of the testator. — Roberts v. Trawick, 13 Ala. 84; Stubbs v. Houston, 33 Ala. 555; *4721 Greenl. Ev. § 440, and notes; 1 Jar. on Wills, 74-5-6; Hughes v. Hughes, 31 Ala. 519.
[2.] Neither did the court err in excluding the witness Wilson as incompetent to testify in this controversy. Wilson v. Sheppard, 28 Ala. 623 ; Harris v. Plant, 31 Ala. 639 ; Notes to Burt v. Baker, 2 Smith’s Leading Cases, pp. 106 to 156 ; Robinson v. Tipton, 31 Ala. 595 ; Smith v. Tal. Br. of Plank Road Co., 30 Ala. 650; Steamer Farmer v. McCraw, 31 Ala. 659.
[3.] Motions were made in the court below to exclude certain portions of Br. MeKennon’s testimony; and it is here objected that the motions came too late, because they were not made until after the trial had been entered upon. The exception to the testimony does not go to the form of the inquiry, but to the substance of the evidence» Hnder these circumstances, it may admit of question, whether the motion to suppress,. if the party has not waived his right by failing to object to the interrogatory to which it is responsive, may not be made at anytime. McCreary v. Turk, 29 Ala. 244.
There is, however, another and a complete answer to this objection. The bill of exceptions recites, that “said deposition was opened, upon the consent of proponent’s counsel that the contestant might make any objection to the same when offered, that he could have made- before the trial was gone into.”
[4.] Two objections were made to the interrogatories, and subsequently to the answers to them, Which may be considered together, as they present substantially but one question. We allude to the last objection to the 4th interrogatory, and the objection to the 6th interrogatory, and the objection to the answers thereto. The 4th interrogatory sought the opinion of the witness, whether the testator had sufficient capacity to make a contract or a will, and to know and understand what he was doing. The 6th interrogatory made the same inquiry in substance, but limited it to testator’s capacity to make a will. The witness responded, that testator had sufficient capacity to make a contract and a will.
One of the reasons specified by contestant, why the *473will should not be admitted to probate, was, “that said Walker was not, at tbe date of said paper, or tbe time of its execution, of sound and disposing mind and memory.” It will thus be seen, that tbe question put to this witness, and answered by him, was the precise question which was presented by one of the issues, to be tried by the jury.
Capacity to make a will is not asimple question of fact. It is a conclusion, which the law draws from certain facts as premises. Hence, it is improper to ask and obtain the opinion of even a physician, as to the capacity of anyone to make a will. Under our system, that question* was addressed to the jury. All evidence which tended to shed light on his mental status — the clearness and soundness of his intellectual powers — should have gone before them. This being done, however, the witnesses should not have been made to invade the province of the jury. — See 1 Greenl. Ev. § 440, and notes; Campbell v. Rickards, 5 Barn. & Ald. 840; Jeff. Ins. Co. v. Cotheal, 7 Wen. 72, 78-9 ; Jemison v. Drinkald, 12 Moore, 148 ; Ramadge v. Ryan, 9 Bing. 333; Stark. Ev. vol. 2, part 2, p. 886 ; Harrison v. Rowan, 3 Wash. Cir. Ct. 580, 587; Hall v. Goodson, 32 Ala. 277.
We are aware that, in Wogan v. Small, 11 Serg. & R. 141, the precise question we fire considering was propounded to a witness — objected to — admitted—and the ruling of the primary court approved in the supreme court of Pennsylvania. The specific and only objection that was made in that case was, that the question was leading. The court considered the question in no other point of view, but held it was not leading. We are not willing to regard this as authority for the admissibility of such evidence.
[6.] The other objections of appellant were, in each case, to a mass of evidence, some portion of which was legal. The court was not bound to grant the motion. Shep. Dig. 596, §169.
Reversed and remanded.'