Appellants offered to probate an instrument as the last will and testament of Samuel Torrey. The probate was contested by Henry W. Torrey, a son of deceased by a former wife to the one which survived the deceased, and who was made the sole beneficiary under the instrument offered for probate as his will. The grounds of contest were:
1st. That the instrument was not legally executed.
2d. Want of testamentary capacity.
3d. Fraud and undue influence.
The record is voluminous, and the assignments of error unnecessarily numerous,—many raising the same legal questions. We will consider the important questions.
*168The court correctly instructed the jury that the will was properly executed. The court was also requested by the proponents to charge the jury, that there was no evidence before them to sustain the contest upon the grounds of undue influence. We are of opinion that this charge should have been given, and if correct in this conclusion it disposes of many of the assignments of error, without a special examination of them. In considering the question of fraud and undue influence, it should be kept in mind, that when testamentary incapacity exists, there is no room for the operation of undue influence or fraud. It is only to such persons as have testamentary capacity, and who have been deceived by fraud, or unduly influenced, and thus prevented from freely exercising such capacity, tha| evidence of undue influence, or fraud is relevant and material. In the one case, the will is invalid for want of testamentary capacity. In the other, the person has testamentary capacity, but the will power to exercise it has been overcome, by force or fear, or the desire for peace, or some improper influence not proceeding from affection, and the party is constrained, or by fraud induced, to make the will. This is undue influence. A bequest or devise, procured by fraud and deceit, such as, without the imposition, would not have been made, even though there is neither force nor fear brought to bear, is undue influence, and will avoid the instrument as a will. Sufficient capacity, free agency, without the imposition of fraud or deceit, are the elements of a valid will.
It is a great mistake of the principles of law under consideration, as applicable to wills, to suppose that a person who by forethought and affectionate attention, and provision for the wants of another, and by integrity, acquires the confidence of such person, and a controlling influence over him, using no deceit, is in the exercise of what in law is termed “undue influence.” Such a doctrine would place a premium on neglect and indifference, and “rob virtue of its reward.”
What are the facts? Samuel Torrey lived to be something over sixty years of age. During the month of September, 1890, he had a paralytic stroke. He never physically recovered entirely from the stroke. Whether he did or not, mentally, is controverted. He survived the stroke about two years, and died, according to some of the evidence from bilious fever. Prior to the time of the attack of paralysis the uncontroverted evidence is, that he was an energetic, good business man, self-reliant, and entirely independent of the influence of, his wife, or any other person, in his business matters. The undue influence, if any was exercised by *169his wife, is conceded to have been and must have been after the paralytic stroke. We have examined the record carefully, and the brief of counsel with special reference to this question. In our opinion there is nothing in the record to support the contention of undue influence. Very few facts are referred to in the argument for appellee on this question, and these we will consider. The first and most prominent, is, that the wife was the sole beneficiary under the will, the testator knowing that he had a son living (the contestant), or if the testator supposed him dead, then he knew that this son had left two children, testator’s grand children. The fact that a testator makes an unequal distribution of his property, or omits entirely from his bequest some of those, who are next of kin, standing alone, is not legal evidence tending to show either testamentary incapacity or undue influence. It is only when there is other evidence tending to show mental incapacity or undue influence that the fact that he had not disposed of his property equally becomes a fact to be considered in connection with such other evidence. If the testator had expressly declared in his will, “that he had a son somewhere living,” or if he was dead that “he had two grand children who were very dear to him, yet for reasons satisfactory to himself, he devised and bequeathed all his property to his wife,” would the will be rejected when offered for probate, because of such a statement, or would such a statement in the will put the burden upon the proponent to show that testator was of sound mind or had not been unduly influenced, or had not been deceived? Clearly not. A person of testamentary capacity, and which the law presumes every one to possess, has the right to make unequal gifts of his property, if he sees proper to do so, by testamentary disposition, and the fact that he does so, does not per se, establish, nor authorize, the inference that the donor is of unsound mind, nor that the gift was the result of fraud, nor of undue influence. In case of wills other evidence is necessary to justify such a conclusion. Eastis v. Montgomery, 93 Ala. 293; Bancroft v. Otis, 91 Ala. 279; Coleman v. Robertson, 17 Ala. 87; Kramer v. Weinart, 81 Ala. 417; Roberts v. Trawick, 13 Ala. 78; Taylor v. Kelly, 31 Ala. 59; Leeper v. Taylor, 47 Ala. 221.
The other fact referred to in brief of counsel was a declaration made by Mrs. Torrey to her husband, the testator. It appears that at the time of the attack, these parties were living out on the Highlands of Birmingham, some distance from the business part of town, and some time after the stroke, one Lockwood, the uncle of the contestant, testifies *170that he “heard her say to Mr. Torrey he must go down to the Kimball House, that she couldn’t live out there and attend to his business in town for him.” The Kimball House was the property of the testator, and convenient to the business part of town. It was rented out as a boarding house. Testator owned other considerable real estate, in the city, which was rented out. The move to the Kimball House was soon after the attack of paralysis and many months before there was any steps taken in reference to the making of a will. We can see nothing in this statement, if true, which tends to show fraud, deceit, coercion or imposition of fear, to influence the testamentary disposition of his property. Certainly when the testator sent for his nephew who was an attorney, to write his will, there is no evidence to show that his wife knew of his purpose, or was present when he gave instructions as to the disposition of his property, or had anything to do with sending for the attesting witnesses, or was present at the time the will was signed and attested, or advised him in regard to the disposition of his property, or made any suggestion at any time relative thereto.
The proposition we declare is, that although the evidence may tend to show some impairment of the mind, if testamentary capacity remains, the fact that there has been an unequal distribution of property, does not authorize the conclusion, that such disposition was the result of fraud or undue influence. There must be other evidence tending to show that the will of the testator was unduly coerced, or that there was fraud or deceit practiced in its procurement. To hold otherwise would lay down a principle which would authorize the setting aside of every will, on the grounds of fraud or undue influence, when any impairment of mental vigor was shown, although the testator possessed testamentary capacity, unless the disposition of his property accorded with ■ what in the opinion of the jury it should have been.
We will next consider the principles of law declared by the trial court, as to what constitutes testamentary capacity. We consider the charge given by the'court ex mero motu with the exception of what we believe to be a clerical error, to be a clear and correct statement of the law of testamentary capacity. The clerical error is in writing “valid” for “invalid.” The whole charge and the context show, that “invalid” was the word used by the court. We are of opinion the rule declared in laying down the mode for the- impeachment of witnesses is too broad. In order to impeach a witness by showing that he has made contradictory statements, the *171statement made, must be material to the issue. It is not every contradictory statement made, but only those relative and material, which is the basis for proof of contradictory statements.
The difficulties on this branch of the case arise from written charges “given” or “refused” prepared by counsel.
We are of opinion the charges upon the question of testamentary capacity requested by proponent were properly refused. The first and fourth charges are in language copied from the opinion of the court in Roberts v. Trawick, 13 Ala. 85, supra. An examination of the case will show that the court was laying down a rule for the trial court, and giving the reasons for the admission or rejection of certain facts as evidence, and not a rule for the guidance of juries, after such evidence has been admitted. The charges invaded the province of the jury, and were properly refused.
The second was erroneous in requiring the contestants to prove more than the law requires. When the law predicates certain facts, and declares their existence to be evidence of testamentary capacity, the rule does not impose upon a contestant the burden of affirmatively showing, the non-existence of all the facts predicated. The correct inference from the rule declared, is, that if the testator is wanting in either of the specified constituents, he does not possess all that is necessary to constitute testamentary capacity. The affirmative charges, which instructed the jury generally, to find for proponents, were properly refused.
If the phrases “intelligent knowledge,” “intelligent perception and understanding,” “intelligent comprehending,” were intended to make the standard of testamentary capacity higher than it would be, by the omission of the word “intelligent” from the charges in which it occurs in the connection mentioned, then the charges should have been refused on this account. The connection in which these phrases were used was calculated to make this impression on the minds of the jurors and to mislead them, and the charges should have been refused. In the case of Kramer v. Weinart, 81 Ala. 414, this court condemned a charge which required as a test, that the testator must “know and understand the business she then had in view, and to think and act on that business soundly.” The rule which prevails in this State, and is supported by the great weight of authority is, that if the testator, has mind and memory sufficient to recall and remember the property he is about to bequeath, the objects of his bounty, the dispositions which he wishes to make, to know and understand the business he is engaged in, the con*172sequences of the business to be performed, he has, in contemplation of law, a sound and disposing mind and memory. These elements include a power to know and discern their obvious relation to each other. The law is clearly and fully stated in Taylor v. Kelly, 31 Ala. 59, and though different expressions have been used, in later decisions, none were intended to alter or add to the requisites there declared. Charge 15 requested by contestants, is similar to charge No. 9, which was given in the Bancroft v. Otis case, supra. The principle of law asserted in the charge may be correct, but is necessarily abstract, and should be refused. The jury have no right to consider the question as to the character of a will an insane man would have made, had he possessed testamentary capacity. The question is purely speculative, and can not a id in determining the fact of sanity, vel non.
Several of the charges given for contestant upon the question of undue influence, are subject to criticism, but we have not considered it necessary to pass in detail upon them, as this feature of the contest will not arise upon another trial, unless there is additional evidence introduced.
The testimony of a witness, who attested the will should be weighed and considered as that of any other witness. The fact that he was an attesting witness, of itself, does not entitle his evidence upon a question of testamentary capacity to greater weight than he would otherwise be entitled to, except perhaps that by reason of his being an attesting witness, the law authorizes him to give his opinion of the mental capacity of the testator. Charge 21 should have been refused. If the. person referred to as occupying confidential relations to testator is the wife, the charge is abstract. If it refers to other persons, it is abstract and erroneous as the wife is the sole beneficiary under the will. The executors were simply agents to execute it.—Roberts v. Trawick, 13 Ala. 80.
We will next consider the assignments of error upon the admission and exclusion of evidence. We think the proper rule as to non-experts testifying upon the sanity or insanity of a person may be stated as follows: Where there has been that long and intimate acquaintance with another to enable the formation of a correct judgment as to the mental condition of such other person, a witness may give his opinion that the person is of sound mind. Sanity is the normal condition of mankind. The witness with such opportunities, need not in limine be required to testify to the absence of facts which if existing would be *173evidence of insanity, before giving his opinion that the person is sane. To authorize a non-expert-to give his opinion of the existence of an unsound condition of mind he must not only have had the opportunity to form a judgment but the facts should be stated upon which it is based. The admission of opinion testimony is an exception to the general rule, and in our judgment, the ends of justice require in all cases where the opinion of a non-expert is admissible to show unsoundness of mind, that the facts upon which it is predicated should be stated. The case of Stubbs v. Houston, 33 Ala. 564 is not an authority adverse to the proposition. It is there stated “that it was competent for him to give his opinion in connection with facts deposed to by him.” The former of the propositions was the question before the court in the case of Ford v. State, 71 Ala. 397.
The rule, as to the latter proposition, as we have stated it, was distinctly declared in Roberts v. Trawick, 13 Ala. 85; Powell v. State, 25 Ala. 21; Florey v. Florey, 24 Ala. 247. A non-expert however long or intimately acquainted who states no facts and circumstances, upon which the opinion is based, is not competent to testify that in his opinion a party is insane. The weight to be given to the opinion of a non-expert as to mental capacity, when admissible, will depend upon the extent and character of the impairment of the mind, the opportunity to know, the intelligence of the witness, and the reasonableness of the conclusion from the facts stated, and accompanying the opinion.—Powell v. State, supra 27. The rule is easily understood, and what we have said will be sufficient to guide the court on another trial.
There was no error in allowing the witness Lockwood to prove that Boden had made a contradictory statement. The predicate was laid, the question of fact material. It was for the jury to say how far the testimony of the witness Boden was impeached by the witness Lockwood. There was no error in allowing the question in rebuttal, to Lockwood : “If he had information that Darby knew important facts,” &g. On cross examination this witness had been asked, “If he did not say he would give $100.00 to know, to what Darby would testify.” Having answered in the affirmative, we can see no objection to the explanation. The declarations of Mrs. Torrey not made in the presence of Mr. Torrey, were mere hearsay, and not admissible as original evidence tp prove any fact. As impeaching testimony there was no predicate for their introduction. It was not competent to prove property in Mi’s. Torrey by a declaration of Mr. Torrey to the effect that it was his custom when he *174purchased property to take title of alternate purchases in her name. It was competent to prove by legal evidence, that he had provided for her, and the extent of the provision. It was also competent to prove that she assisted him to make the property, and his declarations to this effect. We are of opinion the court erred, in excluding the clipping from the Memphis newspaper. This may have been important testimony to either party upon the different issues. It appears that Warren Torrey had left his wife and two children at Cullman some ten or more years before the death of the testator. Not many years after he left his family, as Mrs. Torrey offered to testify, she received in a letter a clipping from a Memphis paper which was offered in evidence, and which was read by testator, to the effect that Warren Torrey had married again in that city. The letter was not produced. The court sustained an objection to the clipping, it would appear, upon the ground that it was hearsay. This clipping was not admissible as competent evidence to prove the second marriage as a fact. But why was it not competent as tending to account for the fact that testator made no provision for him in his will ? If the clipping was true or believed by Mr. Torrey, it may have influenced his mind. On the other haud, if it was a fabrication gotten up to prejudice testator, and he was imposed upon by it, we are not prepared to say, such information, brought to him under such circumstances, was not admissible on the issues prosecuted. It would seem the facts proposed to be deposed to were admissible for either party. In the case of South & North R. R. Co. v. McLendon, 63 Ala. 266, it was held that a witness could testify that “plaintiff seemed to be suffering,” she “looked bad,” &o. Under the principle decided in that case, we hold, it was permissible for a witness to say that the testator “was childish,” that his expression “was simple,” that he was a “shrewd business man,” &c. These words convey a distinct idea. On cross examination, the value or correctness of such conclusions may be brought out. We do not think however that the principle upon which these “short hand” rendering of facts are admissible can be extended, so far as to permit a non-expert witness to be asked for the purpose of showing unsounaness of mind, “Did he seem to have his mental faculties about him all the time,” except it be first shown, that the witness had the opportunity to know, under the principles we have declared, accompanied with a statement of facts, upon which the bpinion is based.
*175For tbe errors pointed out the case must be reversed and remanded.
Beversed and remanded.