Appellee contends that her father, at the time the will was executed, was under the insane delusion “that she did not love him, did not love him as a daughter should, or love him as well as she loved other persons with whom she was intimately associated, and that she was ungrateful for and unappreciative of the great love and care that he had bestowed on her.”
Appellants contend that Dr. Taylor was sane when he executed his will, and that its provision discriminating against appellee was because of her marriage.
Conceding that the evidence tended to support the respective contentions, we will consider the law applicable to such cases, and then apply it to the instructions in the case at bar.
I. The test of testamentary capacity, as declared by this court, is that the testator shall have capacity “to retain in memory, without prompting,' the extent and condition of his property, and comprehend to whom he was giving it, and be capable of appreciating the deserts and relations to him of others whom he excluded from participation in the estate,” McCulloch v. Campbell, 49 Ark. 367; Ouachita Baptist College v. Scott, 64 Ark. 349. This rule is supported - by the weight óf authority. 1 Wharton & Stille, Med. Jurisprudence, § 67 and note ; 1 Clevenger, Med. Jurisprudence of Insanity, § 287 and note 1.
The test relates, not to the moral quality of the act done, but to the mental capacity -of the testator to do what he did. The question is, not whether the testator did actually appreciate the deserts of and relation to him of the one excluded, but whether he had, at the time, the capacity to do so. “It is not required that he shall in fact correctly ascertain the legal status of each person who apparently -stands in natural relation to him. In the exercise of reason, he may move upon false or insufficient evidence, or by mistake of law, and thus exclude from his bounty those whom, but for this error, he would have recognized. Stupid error, either in his reasoning or conclusion, is not lack of testamentary capacity.” Smith v. Smith, 48 N. J. Eq. 566; 1 Wharton & Stille, Med. Jur. § 767, p. 73.
There is a clear distinction between having the capacity to comprehend deserts and actually comprehending them — the former the law requires, the latter it does not. Jurors, in their desire to “even up” what may seem to them the gross inequalities of a will, are apt to take -the one for the other, and treat them as' convertible terms. Care, therefore,, should be taken by the courts to see that the distinction mentioned- is observed,for it is precisely the one that public policy dictates and the law requires in order to preserve the right and power of testamentary disposition. Greenwood v. Greenwood, 3 Curteis, 337; In re McDevitt’s Case, 30 Pac. 101; King v. Rowan, 34 So. (Miss.) 327; Riggs v. Am. Tract Soc., 95 N. Y. 511.
Every man has the untrammeled right to dispose of his property by will as he pleases, with only such limitations as the statute may impose. The “English law,” said Eord Chief Justice Cockburn, “leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances caprice or passion, or the power of new ties, may lead to the neglect of claims that ought to be attended to, yet the instincts, affections and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of. the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a disposition- prescribed by the stereotyped and inflexible rule of general law.” Banks v. Goodfellow, L. R. 5 Q. B. 549.
Therefore, nothing short of mental unsoundness, when measured by the test above announced, will avoid a will. Moral, or what the books term “medical,” insanity — a perversion of the sentiments and affections — manifested in jealousy, anger, hate or resentment, however violent and unnatural, will not defeat a will unless the emanation of a delusion. Lucas v. Parsons, 24 Ga. 640; Schouler on Wills, 162, 163; Wharton & Stille, Med. Jur. 78; 16 Am. & Eng. Enc. (2d Ed.) 563; McClintock v. Curd, 32 Mo. 411-421, 422; Frere v. Peacocke, 1 Robertson, Eccl. Cas. 448; Bohler v. Hicks, 48 S. E. 307; Boardman v. Woodman, 47 N. H. 120; In re Forman’s Will, 54 Barb. 274; 3 Witthaus & Becker’s Med. Jur. 183.
“Testators are not required by law to mete out equal and exact justice to all expectant relations in the disposition of their estates by will, and the motives of partiality, affection or resentment, by which they naturally may be influenced, are not subject to examination and review by the courts.” Barricklow v. Stewart, 72 N. E. 128; Clapp v. Fullerton, 34 N. Y. 190. If one has the capacity indicated to make a will, then he may make it as “eccentric, injudicious and unjust as caprice, frivolity or revenge can dictate.” Schneider v. Vosburgh, 106 N. W. (Mich.) 1130; In re Spencer’s Estate, 31 Pac. 454; Rivard v. Rivard, 66 N. W. 681.
Still, “mind is represented by feeling, thought, and volition, and any departure in these from their normal relations” tends to show mental disorder. 3 Witthaus & Becker’s Med. Jur. 182. Therefore, when the mental capacity of a testator to make a will with reference to a particular individual is questioned, it is always proper to show the state of his feelings and thoughts, as manifested by his words and acts towards such individuals, and indeed generally, in so far as these tend to prove mental capacity, or the lack of it, in making the will, and whether the testator at the time was dominated by delusions concerning the individual that caused him to make it. Hence it is that, in order to determine the capacity of the testator’s mind and its true action at the time the will is made, a wide range of inquiry is permissible into facts and circumstances, whether before or after the time of making the will, the better to enable the jury to determine the probable state of the mind, and the extent and force of the restraint at the time the will was- executed. “The contents of the will, the manner in which it was written and executed, the nature and extent of the testator’s estate, his family and connections, their condition and relative situation to him, the terms upon which he stood with them, the claims of particular individuals, the situation of the testator himself and the- circumstances under which the will was made, are all proper to be shown to the jury, and often afford important evidence in the decision of the question of the testator’s capacity to make the will.” Tobin v. Jenkins, 29 Ark. 151, pp. 157-160, quoting 1 Jarman on Wills, 79.
The test of testamentary capacity is necessarily the same, whether the insanity be attributable to dementia or insane delusion — paranoia. While appellee’s plea against the will was broad enough to cover dementia, or general insanity, the evidence tends to show, and appellee only contends for, paranoia or delusional insanity. So we will next consider “delusion” and as synonymous with insanity.
It is for the court to define delusions, announce the rules for their ascertainment, and declare their effects. It is for the jury to find whether a delusion exists in any given.case. 1 Clevenger, Med. Jur. of Insan. pp. 308-309, § 23; Prather v. McClelland, 76 Tex. 574; Robinson v. Adams, 62 Me. 369.
“Paranoia” is a term used by medical experts, alienists and authors on medical jurisprudence to designate the form of insanity characterized by systematized delusions. A systematized delusion is one based on a false premise, pursued by a logical process of reasoning to an insane conclusion. 1 Wharton & Stille, Med. Jur. § 1020 et seq. There is one central delusion, around which other aberrations of the mind converge. The term •“paranoia” takes the place of the word “monomania” or “partial insanity,” and includes all that was formerly meant by that word, but is considered a more accurate term to describe the peculiar form of delusional insanity we are now considering. 1 Wharton & Stille, Med. Jur. § 1022; 1 Clevenger, Med. Jur. of Insanity, 860.
Mr. Clevenger, in his excellent work on Medical Jurisprudence of Insanity, says that “the theory of medical science that there is no such thing as partial insanity, and that a man is • either sane or insane, is not true in law; and that to establish unsoundness of mind it is not necessary that it should be general, it is sufficient if proved to exist on one or more subjects, though in all other respects the individual may conduct himself with the utmost jpropriety. Within this rule partial insanity or monomania invalidates a will, which is its direct offspring, or where the will was in any way the effect or the result of such insanity, though the testator’s general capacity was unimpeached.” 1 Clevenger, p. 293, § 15.
Our own court, in Seawel v. Dirst, 70 Ark. 166, said: “The law now recognizes the fact, well established by the investigation and observation of medical experts, that there may be a derangement of mind as to a particular subject and yet capacity to comprehend and intelligently act on other subjects. * * * * The fact that the grantor was a monomaniac, and possessed of insane delusions on some subjects not connected with the conveyance or the matters out of which it grew, is not sufficient to invalidate his deed. To have .that effect, the insane delusion must be such as to disqualify him from intelligently comprehending and acting upon the business affairs out of which the conveyance grew.” See also Bolling v. State, 54 Ark. 601; Green v. State, 64 Ark. 534. It is unquestionably true that one may be possessed of a delusion concerning one subject and yet be of sound mind on all other subjects, according to the weight of modern authority, and this should be so declared as a proposition of law. Gardner on Wills, 120, note. See Banks v. Goodfellow, L. R. 5 Q. B. 549; Taylor v. Trich, 165 Pa. St. 586; Dew v. Clark, 3 Add. Ecc. 79; Buswell on Insanity, chap. 1, p. 19, § 15; chap. 9, p. 270 note; chap. 11, p. 380, § 381 note 3; § § 273, 274.
The mere existence of a delusion, however, as we have said, “is not sufficient to invalidate a will. Its connection with the will must be made manifest and shown to have influenced its provisions.” If, notwithstanding the delusion, the will was directly traceable to another cause, it should not be avoided, 1 Wharton & Stille, § 84; Hemingway’s Estate, 195 Pa. 291; McGovran’s Will, 185 Pa. 203; Dale v. Dale, 36 N. J. Eq. 281; Hollinger v. Syms, 37 N. J. Eq. 233; Reichert v. Reichert, 107 N. W. (Mich.) 1057; Bonordi’s Will, 24 N. Y. Supp. 188; Den v. Gibbons, 2 Zab. 117, 138; Wetz v. Schneider, 78 S. W. (Tex.) 394; Bain v. Clint, 33 Pac. 542; Bohler v. Hicks, 48 S. E. 306; In re Clapham’s Estate, 103 N. W. (Neb.) 61; 1 Clevenger, 297; Potter v. Jones, 12 L. R. A. 161.
This delusion, which operates to defeat a will made under its influence, may be defined as. follows: Where one conceives something extravagant, and believes it as a fact, when in reality it has no existence, but is purely a product of'the imagination, and where such belief is so persistent and permanent that the one who entertains it cannot be convinced by any evidence or argument to the contrary, such a one is possessed of an insane delusion. Dew v. Clark, 3 Add. Ecc. 79; 1 Wharton & Stille, 80 ; Smith v. Smith, 48 N. J. Eq. 570; Am. Seamen’s Friend Soc. v. Hopper, 33 N. Y. 624; Middleditch v. Williams, 45 N. J. Eq. 734; Bohler v. Hicks, 48 S. E. 306; Robinson v. Adams, 62 Me. 369; Benoist v. Murrin, 58 Mo. 307; Stanton v. Wetherwax, 16 Barb. 259; 1 Redfield on Wills, chap. 3, § 11, subdiv. 20, 21; Matter of Will of White, 121 N.Y. 406; Page on Wills, § 104; Merrill v. Rolston, 5 Red. Surr. 252; 4 Words & Phrases, 3644, verbo, “Insane Delusions.”
The above is substantially the definition of, Sir John Nichol in 1826 in the great case of Dew v. Clark, supra, and it is one that has been approved and followed by a majority of cases and text writers ever since. A delusion cannot be predicated upon any purely esoteric and abstract subjects, for the reason that beliefs concerning such’ subjects are speculative, and could not be proved false. Gass v. Gass, 3 Humph. 278; 1 Redfield on Wills, chap. 3, § 11, subdiv. 21. See also in the matter of Bonard’s Will, 16 Abb. Pr. (N. S.) 185; 1 Clevenger, 303 et seq.; Thompson v. Quimby, 2 Bradford, 449; Thompson v. Thompson, 21 Barb. 107; Smith’s Will, 52 Wis. 543; Anderson’s Law Dict. 337; Owen v. Crumbaugh, 81 N. E. 1044; Whipple v. Eddy, 161 Ill. 114, 122.
But filial love and gratitude do not belong to a class of theoretical or metaphysical subjects not susceptible of proof. Indeed, there is scarcely anything in our civilization more concrete and real than these emotions growing out of the natural ties of blood, and incident to the family relation. Their presence or absence is manifested, and may be proved, in manifold ways. If a parent believes that his daughter does not love him, or love him as well as she does some others, or is ungrateful to him, the falsity of such belief, if it be false, may be easily shown. The conduct and declarations of the daughter herself, showing her mental status toward him and others, are original evidence. Wigmore on Evidence, § § 1730, 1715, 349, 190.
“Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings as made at the time in question are original evidence. If they are the natural language of the affections, whether of body or mind, they furnish satisfactory evidence, and often the only proofs, of its existence.” Greenleaf on Evidence, § 102. See Beller v. Jones, 22 Ark. 93; Jacob v. Whitcomb, 10 Cush. 255. It may also be shown that such erroneous belief, if it be such, is adhered to against all evidence and argument to the contrary. Such belief would therefore be a delusion.
But if the belief be that his daughter does not love him as much as he wishes, or as much as his daughter 'ought, or that his daughter is not as grateful as he wishes, or as grateful as she should be, then it is not a belief of the total want of affection and gratitude, but only as to the degree thereof. Such a belief necessarily is in the domain of speculation and theory, where no proof can discover its error; for no evidence can measure the quantum of love and gratitude that a father mlay wish his child to have towards him, nor' the quantum of love and gratitude that a child should have towards its parent. The unexpressed wishes of a parent as to the degree of love and gratitude that he desired his child to have for him, as well as the quantum of love and gratitude that the child should have for the parent, are so purely psychical and ethical thai they are not susceptible of proof. A belief of that kind cannot be shown to be erroneous ; nor can it be shown that such a belief would not be changed by evidence and argument. There Is no criterion by which to demonstrate the error- and unchangeability of such belief, and the whole subject-matter is in the wide realm of speculation, and cannot therefore be a delusion. Anderson’s Law Dict. “Delusion;” Buswell on Insanity, § 14.
Evidence is the means by which facts are proved. All evidence must be addressed to the sane mind. That which no sane mind would believe at all does not rise to the dignity of evidence. And a belief in something that no sane man could believe is evidence of insanity. 1 Wharton & Stille, § 83. Evidence, in a legal sense, is external. It is brought into the mind through the senses by the mental faculty of perception, and appropriated by the faculty of reason. Therefore, any evidence will produce some sort of impression or belief in the mind, correct or incorrect. It is a solecism to speak of a belief that is based on any evidence as an insane belief or delusion. A belief grounded on evidence, however slight, necessarily involves the exercise of the mental faculties of perception and reason; and where this is the case, no matter how imperfect the reasoning process may be, or how 'erroneous the conclusion reached, it is not an insane delusion. Anderson’s Law Diet. “Delusion,” note; Owen v. Crumbaugh, 81 N. E. 1044; In re Scott’s Estate, 60 Pac. (Cal.) 527. The distinction between an erroneous belief or mistake, based on evidence, and a delusion is clearly drawn in Smith v. Smith, 48 N. J. Eq. 570, as follows: “A delusion is the mind’s spontaneous conception and acceptance of that, as a fact, which has no real existence except in the imagination, and its persistent adherence to it against all evidence. Mistake, whether of fact or law, moves from some external influence which is weighed by reason. ■ Delusion arises from morbid internal impulse, and has no basis in reason.” See also the following: In re McGovran’s Estate, 39 Atl. 816; Dobie v. Armstrong, 55 N. E. (N. Y.) 305; Middleditch v. Williams, 45 N. J. Eq. (N. J.) 726, 17 Atl. 826; Potter v. Jones, 25 Pac. (Ore.) 769; Steinkuehler v. Wempner, 81 N. E. 482; Fulleck v. Allenson, 3 Haggard, 527 (by Sir John Nichol) ; Schouler on Wills, § § 162, 163; Clapp v. Fullerton, 34 N. Y. 190; Mullins v. Cottrell, 41 Miss. 324; Young v. Mallory, 35 S. E. 278; Davenport v. Davenport, 58 Atl. 535; Amer. Seamen’s Friend Soc. v. Hopper, 33 N. Y. 624; 1 Underhill on Wills, 127. In 1 Redfield on Wills, chap. 3, star page 86, note, it is said: “A belief based on evidence, however slight, is not a delusion, which rests upon no evidence but mere surmise.”
Capacity is presumed. The burden of proof is on the one who attacks a will, on the ground of insanity; and if the testator’s general capacity is conceded, the proof is more difficult, and in such cases the proof, of paranoia must be of the-clearest and most satisfactory kind. Mullins v. Cottrell, 41 Miss. 291 ; Smith v. Smith, 41 N. J. Eq. 570, supra; In re McGovran’s Will, 185 Pa. St. 203, supra; Fulleck v. Allenson, 3 Hagg. 527; Drew v. Clark, 3 Add. Ecc. 79.
The instructions should be confined to the issue, should be based on the evidence, and should be considered as a whole. Armistead v. Brooke, 18 Ark. 521, 527; Morton v. Scull, 23 Ark. 289; Little Rock & F. S. Ry. Co. v. Trotter, 37 Ark. 593; St. Louis, I. M. & S. Ry. Co. v. Rosenberry, 45 Ark. 256; Railroad Compmy v. Barry, 58 Ark. 198. The court should give instructions appropriate to any theory of the cause sustained by competent evidence. “It is therefore error for the trial .judge to refuse to give a specific instruction correctly and clearly applying the law to the facts of the case, even though the law is in a general way covered by the charge given, unless the court can see that no prejudice resulted from such refusal.” St. Louis, & F. S. Rd. Co. v. Crabtree, 69 Ark. 137. Each party has the right to have the theory of the ca,se he contends for, and which he has adduced evidence to support, submitted to the jury upon proper instructions, unless the court in its general charge has declared the law so that the respective contentions of the parties may be presented in argument to the jury without unfairness or prejudice to either. Prescott & N. W. Ry. Co. v. Weldy, 80 Ark. 454; Hamilton-Brown Shoe Co. v. Choctaw Merc. Co., 80 Ark. 440; St. Louis, I. M. & S. Ry. Co. v. Robert Hitt, 76 Ark. 233; Luckinbill v. State, 52 Ark. 45; Smith v. State, 50 Ark. 545.
II. Now, testing the instructions of the trial court by the principles above announced, our conclusions are as follows:
(1) The court properly outlined the issues and correctly defined testamentary capacity in the first instruction asked by appellants and modified and given by the court.
(2) The court erred in striking the second paragraph from appellant’s request No. 2. The second paragraph, to-wit: “A belief which is founded on any evidence as a basis is not á delusion,” was a concise and correct proposition of law. It was an indespensable test for determining whether a .belief of the class under consideration was a delusion, because such a belief is of something in its nature not impossible. It was peculiarly appropriate here because of the testimony of medical experts on behalf of the appellee defining a delusion as “a belief, an idea, held by a person against such ordinary, average information or experience as would to the ordinary, average individual prove sufficient to cause him to give up the idea.” This testimony did not meet the legal requirements of a delusion. Yet it was well calculated to cause the jury to conclude that a belief was a delusion .if it was held against any evidence that would convince “the ordinary, average individual” to the contrary; whereas the law is that the most extraordinary, eccentric and absurd beliefs are not delusions if based on any eviderice and not held against all evidence. Anderson’s Daw. Diet. “Delusion.” In this state of the record, a specific declaration like that contained in the second paragraph was essential to guide the jury to the right conclusion.. True, almost the converse of the proposition is stated in the first part of the first paragraph defining delusion; but the idea is not so tersely and clearly conveyed, and the appellants were entitled to have the proposition presented to the jury as they asked it in order to prevent the jury from being misled.
Paragraphs three and four were not improper, although, had the court given the second paragraph, it would not have been error to strike these; for the fourth was in part a repetition of the idea contained in the second, and the third was a repetition of what had already been given in the first instruction.
(3) The modification by the court of proponent’s third instruction and the giving of the second and third instructions for contestant authorized- the jury to find against the will if they found that the testator could not comprehend the deserts and relations' of his daughter. The court was specifically requested to limit the inquiry as to the mental incapacity, and the consequent failure to comprehend deserts, to that brought about by the delusion. But the court refused the request. Had not the attention of the court been specifically directed to the vice of these instructions, we should say that, taking the instructions as a whole, the proper construction to be put upon these would be that the mental incapacity referred to was only that brought about by the insane delusion mentioned in the other instructions. But the refusal of the court to confine these requests to the specific issue when its attention was called to it indicates that the court was willing that they should be given the broadest sweep of which they were susceptible. In that view they were inconsistent with other instructions, and very misleading and prejudicial. For there was a great deal of testimony tending to show at least moral perversion or “medical insanity,” if not delusion; and, in the absence of consistent and clear instructions throughout confining the inquiry to the issue of delusion, the jury might have concluded that they were authorized to find against the will because of what they considered the great moral perversity of Dr. Taylor towards his daughter, which might, in their opinion, have rendered him incapable of comprehending her deserts. Moreover, the modification of appellant’s' third request by the paragraph added gave the whole instruction a bad form, for the modification was not germane to the paragraph modified. It presented an independent proposition of law, and should have been asked and given, with the limitation indicated, as a separate proposition. The court erred, therefore; in modifying the third request of appellants by adding the second paragraph, and also in giving the second and fourth at appellee’s request without the limitation mentioned. See, in addition to cases already cited on this point supra, Benoist v. Murrin, 58 Mo. 307; Lucas v. Parsons, 24 Ga. 640; Williams v. Williams, 13 S. W. 252; In re Kendricks’ Estate, 62 Pac. (Col.) 609; Hardenburgh v. Hardenburgh, 109 N. W. (Ia.) 1015.
(4) The court did not err in modifying appellants’ fifth request. The idea contained in the part stricken out had been sufficiently covered in the first and fourth instructions given at the instance of appellants.
(5) The first instruction given at the instance of appellee was erroneous. It was not in conformity with the law we have announced as to delusion. It was hot enough that the belief should be false and without foundation of .fact 'to rest upon, but it must also be adhered to against all evidence and argument. The element of this persistency of the belief is entirely absent. Moreover, the court must never declare as a matter of law that a delusion exists upon any given state of facts. In this peculiar class of cases it is never a question of law for the court to determine whether a delusion exists in any case. That is for the jury. See cases noted on this point.
(6) We have already considered the defects in instructions 2 and 4 given on motion of appellee.
(7) Instruction No. 8 given on appellee’s motion was the law.
(8) Of the remaining requests of appellants the court did not err in refusing those numbered, respectively, 8, 10, 11, 12, 13, 14, 15, 16, 18, 19 and 22. Such of these as were correct were sufficiently covered by others given.
(9) The court should have given the 7th. The 17th was of the same purport, but argumentative in form, and was properly refused.
(10) 'As the court had given appellee’s request No. 2, it should also have given appellant’s request No. 21.
(11) Requests of appellants numbered 9 and 20 were substantially to the same effect, and were designed to present appellants’ theory that the marriage of appellee was the cause, of the discrimination against her in the will of her father. Appellee claims that Dr. Taylor was the final victim of a delusion that his daughter did not love him, which first began in a mere apprehension that she might not, as early as 1878, and progressed until it developed into a positive and persistent conviction. If this was true, it is- certain that it did not dominate him prior to her marriage, to the extent of causing him to deny her any of the comforts or luxuries of life that could contribute to her physical or mental well being. Prior to that time he seemed extremely solicitous of her welfare. Pie was generous and indulgent. He gave her excellent educational advantages and extensive travel in this country and in Europe. He administered without stint to her every want, and denied her no pleasure except that of showing her fondness and devotion to her friends and those whom she loved. Of this, however, he complained, and in some instances he protested in such an unnatural way as to warrant the conclusion that all his devotion to his daughter was tinged with supreme selfishness, and that there was a great and unnatural jealousy on his part towards his daughter because of her affections for others. But, notwithstanding all this, there was no diminution of his love for her, and no curtailment of the benefits and kindnesses extended toward her, until she married against his will. Pie told her before that if she married McClintock it would separate them forever, and begged her on his knees not to do so, and further told her that if she did marry Mc-Clintock she could never expect a dollar of his estate. Contemporaneously with the marriage, a marked change came over Dr. Taylor, which was ever thereafter manifested in his conduct towards her. He apparently lost all affection for her. He ceased to show any except a nominal interest in and solicitude for her, himself attributing the fact of -her marriage as the cause of their separation forever. Pie ceased thereafter to write -her regularly at short intervals, as had been his custom. In the letters he did write he upbraided her for her marriage, saying that he could never on that account enter her home. He refused to let her first-born be called for him, giving as his reason that he could not consent for his name to be coupled with one who had done him so great a wrong. He referred to the great wrong she had done him by her marriage, saying that he “believed that God would in some way punish her for her disobedience and ungratefulness.” He would not' let the matter be discussed with him by his most intimate friends, who sought to reconcile him to the condition; and at last, toward the close of his life, it is shown that he would turn pale, become angry, compress his lips, and leave the home of liis most intimate friend when her name was mentioned. Finally, after weeks of consideration and consultation with his attorney, going over the whole matter of his estate and how he wished it distributed in his will, he calmly and deliberately had the clause written which practically disinherited her.
From a consideration of the testimony which tends to establish the above facts, in -connection with all the other evidence, appellants contend that Dr. Taylor was of sound mind when he made his will and discriminated against his daughter therein solely on account of her marriage. And it is from this viewpoint especially that they predicate the theory that, no matter if Dr. Taylor was possessed of a delusion concerning his daughter’s affections for him at the time he made the will, such delusion did not dominate him in the provision concerning her, but that this was caused through resentment on account of her marriage with McClintock. It was upon this contention ’and theory that the requests under consideration were made, and we are unable to see how there could be a fair trial of the cause with that theory omitted from the charge of the court. This was such a distinctive contention and feature of the case, as developed by the proof, that we are of the opinion that the appellants were entitled to have it sent to the jury under one of the above specific requests for instructions, according to the authorities heretofore cited.
III. We will next consider the rulings of the court in the admission and exclusion of testimony, taking up the alleged errors by the number and in the order presented in the briefs.
(1) The court refused to permit Miss Jordan to answer the following question: “Don’t you know it to be a fact that in that matter (meaning the suit of the Jordan heirs against Dr. Taylor) very great bitterness of feeling grew up on account of the difference between Col. Johnson and Dr. Taylor, in which your feelings entered?” The question was competent, but the error in not allowing the answer -was not prejudicial, because the information sought had already been substantially elicited on cross examination.
(2) The testimony of appellee was competent. Our statute provides that “in civil actions no witness shall be excluded because he is a party to the suit, or interested in the issue to be tried; provided, in actions by or against executors, administrators or guardians, in which judgment'may be rendered for or against them, neither party shall be allowed to testify against the other as.to any transactions with or statements of the testator, intestate or ward, unless called to testify by the opposite party.” Sec. 3093 of Kirby’s Digest. This statute has no application in a case involving a contest over the probate of a will. It was intended to protect the estates of deceased persons from the attacks of persons who had, or claimed to have had, business transactions with the deceased prior to. his death, and who are seeking to establish claims against his estate. This is clearly shown by the language, which declares that it is in actions where judgments may be rendered for or against the executors, administrators, etc. In other words, where a party seeks to obtain a judgment against the representatives of the estate of the deceased, and thus to impair or reduce the estate, the statute applies. But it cannot apply to controversies between devisees among themselves over a will, or between devisees or legatees and the heirs, as to the distribution of the estate by will or otherwise; for in such case the corpus of the estate is in no manner affected. There can in such cases be no judgment rendered for or against the administrator or executor as such by which the estate is impaired or reduced. In re Miller’s Estate, 88 Pac. 338, and the many authorities cited therein; also other cases cited in appellee’s brief.
(3) The court érred in admitting the testimony of the husband of contestant 'to prove the copy of the letter of contestant to her father, dated May 7, 1895, and in admitting the copy in evidence. Section 3095 of Kirby’s Digest provides that “either husband or wife shall be allowed 'to testify for the other in regard to any business transacted by the one for'the other in the capacity of agent.” The copying of the letter by the husband of appellee, at her request, was not “business transacted by the one for the other in the capacity of agent.” The terms “and business transacted” refer to business transactions with third parties, not with each other. The copying of the letter was not a business transaction in which he could act as her agent, she being present. The design of the statute was to enable the husband or wife who had transacted business with some third party, through the other as agent, to prove such business by the agent who transacted it, the principal not having personal knowledge thereof. The testimony was clearly incompetent. Pingree v. Johnson, 39 Atl. (Vt.) 202; Hazer v. Streich, 66 N. W. (Wis.) 720; First Nat. Bank v. Wright, 78 S. W. 686, 688. See also Mississippi River, H. & W. Ry. Co. v. Ford, 71 Ark. 192.
(4) and (5) Error, but not prejudicial.
(6) and (8) It was proper to admit testimony showing the character and reputation of Mr. McClintock.
(9) and (10) In will contests, where the unsoundness of mind alleged is dementia, the inequalities of the will, the nature and extent of the estate and the sources of its acquisition are proper to be considered in determining the testamentary capacity. Where delusion is alleged as the ground of incapacity, this principle can have no application, further than to show that the testator, if the delusion be established, was -dominated by it at the -time the will was executed. For this purpose the testimony is competent, just as it is competent, in cases of dementia, to show lack of testamentary capacity. The testimony of Col. Johnson which tended to show what property of appellee’s mother passed into the hands of Dr. Taylor, and its value, was proper. The court, however, should be careful to limit -it to that, and not permit the testimony along this line to bring in collateral matters that are calculated to prejudice the rights of appellants. Such was the effect of some of the testimony -of Col. Johnson, contained in subdivision number ten, which the court should have excluded.
(n) No error in the ruling, for the reason that a part of the 'testimony of Col. Johnson was competent. The motion was general; to exclude all.
(12) The court permitted the testimony of experts to assume an argumentative and speculative form on the moral phases of Dr. Taylor’s conduct towards his daughter and her rights. This was highly improper and prejudicial.
(13) and (14) No error in the rulings.
(15) Error; too remote; collateral matter was introduced, but it was not prejudicial.
• (16) to (19) Rulings were correct.
(20) The court erred in permitting counsel for contestant to ask Mrs. Taylor this question: “Did you send his daughter, Mrs. McClintock, any notice of his illness?” She answered, over the objections of appellants, that she did not, and was then examined further as to her reasons for not doing 'so. This was wholly impertinent matter. It was not responsive to anything that was brought out on the examination in chief, and was not proper as original evidence for any purpose. If the reason why appellee was not present at her father’s bedside in his last illness was on account of her not receiving notice of such illness, this testimony did not tend to prove it, and, at least, was not 'the best evidence of that fact. Appellee was a witness, and she was the only one who could testify that she did not receive notice of her father’s last illness, for that was knowledge necessarily peculiar to her, and her testimony only could be admissible evidence of that fact. It is never permissible to ask a question that is itself incompetent as preliminary to one that is competent. It was competent to prove, under certain conditions, that Dr. Taylor made no request that his daughter by notified of his last illness. But it was a question to be asked directly, if at all, and without unnecessary and incompetent preliminaries. It was not competent for the purpose of showing personal animosity of Mrs. Taylor towards appellee. It did not tend to show that. It was not competent to show Mrs. Taylor’s hostile attitude in the contest, for that was patent from the proceedings. Indeed, it was wholly incompetent for any purpose whatever, and it seems to us it had no other tendency than to arouse undue sympathy on the one hand, and prejudice on the other.
(21) This was harmless error.
(22) and (23) The rulings were correct.
(23/^) This was not prejudicial error.
(24) and (25) The ruling was error. On cross examination Mrs. Taylor was asked with reference to a conversation between herself and appellee on a train between Memphis and Louisville. The question asked her. was as follows: “I will ask you, Mrs. Taylor, if, when she came into the train to see you, she asked you if her father had left any word for her, and if you didn’t respond, 'No, he had spent his life trying to forget you,’ and that you had 'tried to make his life as happy as you could ?’ ” Her reply was, “ I positively said nothing of the kind.” Appellee was called in rebuttal, and over the objections of appellants the following occurred:
“Q. Mrs. McClintock, did you have the conversation referred to, at the time I mentioned, with Mrs. Taylor, on the train between Memphis and Louisville? A. I did. Q. Did you, in that conversation, ask her if your father left any message for you or any remembrance, and state what you asked 'her? A. I asked her if my father left any word of love or forgiveness; that it meant more to me than anything. Q. Please state what reply was made to that question? A. And as I remember it, and it is very distinct in my mind, she said that he spent his life in trying to forget me. Q. (By a juror). Said what? A. That he spent his life in trying to forget me, and that she tried to make his life as happy as she could.”
Conceding, as appellee contends, that if Dr. Taylor had stated to Mrs. Taylor that “he had spent his life' in trying to forget” appellee, it would have been proper for appellee to have shown that fact; and conceding, further, that, if Dr. Taylor did not so state, it was proper to show that Mrs. Taylor told appellee that he did so state, for the purpose of impeaching Mrs. Taylor’s testimony, still the above testimony fell far short of proving, or even tending to prove, such a state of facts as that. The questions asked above did not call for anything Dr. Taylor said to Mrs. Taylor concerning Mrs. McClintock. Mrs. Taylor was not asked what Dr. Taylor stated to her and she repeated to Mrs. McClintock, and Mrs. McClintock was not asked what Mrs. Taylor told her Dr. Taylor had said. The conversation, if it occurred in the manner indicated by the question asked Mrs. Taylor, was about one year subsequent to the making of the will, and was about a matter wholly immaterial and irrelevant to the issue of whether or not Dr. Taylor, when he made his will, was possessed of a delusion which influenced him to disinherit appellee. So the above testimony falls under the ban of the general rule that “when a witness is cross-examined on a matter collateral to the issue, he cannot be subsequently contradicted by the party asking the question.” McArthur v. State, 59 Ark. 435; Plunkett v. State, 72 Ark. 409, 412; Jones v. Malvern Lbr. Co., 58 Ark. 125; Butler v. State, 34 Ark. 485.
The evidence did not tend to show any hostile feeling on 'the part of Mrs. Taylor towards appellee, and was evidently not introduced for that purpose, but for the purpose of impeachment.
(26) The deposition of Epes Randolph was taken on interrogatories and cross-interrogatories before a notary public in Arizona. Randolph was present at the scene between Dr. Taylor and appellee at the Galt House in Rouisville, Kentucky. He testified, among ■ other things, that he heard appellee on that occasion tell her father that she no longer loved him or respected his wishes, but hated him and intended to marry McClintock. These statements, if true, were exceedingly important; for, if true, they tended to prove that if Dr. Taylor believed his daughter did not love him his belief was true, and therefore could not be a delusion. Appellee denied that she made any such statements, and the sharp conflict in the evidence at this point rendered the credibility of the witness Randolph a matter of significance to the cause of proponents. In order to lessen or destroy the credibility of this testimony, appellee called in rebuttal one Winn, who was a lawyer, and a brother-in-law of Mrs. Taylor, and who testified, over the objection of appellants, substantially that he was present when the deposition of Randolph was taken, and that there was no one present representing the contestant; that he went out to Arizona for the purpose of interviewing Randolph with reference to the case and taking his deposition if he found 'that he would make a witness. That he had the agreement to take the deposition and the interrogatories and cross-interrogatories sent 'to him, and read them over with Mr. Randolph. He did not ask him any questions, and none were asked him except the reading of the interrogatories that were sent out. The agreement, caption and certificate attached to the deposition of Randolph were by agreement read to the jury. The appellants moved the court to instruct the jury that witness Winn had a right, under the law, to be present at the taking of the deposition of Kpes Randolph; but the court refused, and the appellants duly saved their exceptions.
It was error to attempt the impeachment of this witness Randolph by this method. The law prescribes how a witness may be impeached. Section 3138 of Kirby’s Digest. The method adopted here is not found in the law, and it would be very unfair to the witness, who is absent, and to the party relying on the testimony of such witness, to permit it to be called in question in a manner not prescribed nor contemplated by the statute. Sec. 3181, Kirby’s Digest, provides that “where a deposition is taken upon interrogatories, neither party nor his agent nor attorney shall be present at the examination of the witness unless both parties are present or represented by an agent or attorney, or unless the opposite party, or his agent or attorney, has been seasonably notified of the time and place of taking the deposition, or the party attending has been notified by the opposite party to attend.” The deposition was 'taken, it appears, by agreement, and it is not pretended by appellee that the above statute was not fully complied with. If not complied with, her remedy was to quash the deposition for failure to do so, but not to attack it by the sudden and improvised methods adopted here in the midst of the trial.
The court, having erred in admitting the testimony of Winn in the first instance, only accentuated it by refusing to attempt even to mollify its prejudicial effect by telling the jury that Winn had a right 'to be present when the deposition was taken.
IV. We have now considered all the assignments of error urged here for reversal except those presented and argued under the heads, “The court should have given a peremptory instruction sustaining the will,” and “that the verdict is not sustained by the evidence.” Under these heads the appellants insist that “contestant’s hypothetical case omits facts that were essential, and contains statements that were not facts.”
The hypothetical question of appellee was defective in two important particulars: (1). It states with sufficient accuracy of detail the facts which the evidence tended to show about Dr. Taylor’s taking his daughter to Little Rock to live after the death of his wife; that, in compliance with her dying request that appellee and Miss Jordan should not be separated and that the latter should rear appellee, Dr. Taylor arranged to have appellee and Miss Jordan- live with their uncle, Mr. Richard Johnson, in Little Rock. It states correctly the circumstances and conditions of her home life with these relatives from the time she was taken thére in 1878 till she was taken away in 1882, showing the conduct of Dr. Taylor towards her on the occasion of his visits to her and her conduct towards him, and showing that Miss Jordan had treated appellee as a mother would treat her child during all this time, and that appellee loved her as a mother, etc. After all this is shown, the question states that “in 1882 Dr. Taylor took his daughter away from Miss Jordan and the family with which she was stopping, without indicating to them his intention of putting her in the permanent custody of others, and placed her in the care of his brother and sister-in-law, Mr. and Mrs. Gip Taylor, at Winchester, Kentucky, saying to the latter that he did not like the influences surrounding her at Little Rock, and that he did not think Miss Jordan a proper person to raise her, assigning as his reason that he was afraid his daughter’s affections would be weaned from him.” The question omits the following facts, which are undisputed, and which were proved by the witnesses for appellee: That a suit had been brought by the Jordan heirs, Miss Jordan herself, her brother and sister (Mrs. Gibson), against Dr. Taylor for their alleged interest .in their mother’s estate, charging that Dr. Taylor had taken title to property belonging to their mother in his own name; that the suit aroused the most bitter feeling on the part of the brother and sister of Miss Jordan, and the family with whom she and appellee were living, against Dr. Taylor; and that Col. Ben. Johnson, who attended to the lawsuit for them, did not speak to Dr. Taylor up to the time of his death.
'True, Miss Jordan testified that this business difference did not affect her feelings towards Dr. Taylor. She testified that she had always disliked Dr. Taylor since he had married her mother, and that the lawsuit had nothing to do with her feelings; that the suit was attended to by Col. Ben. Johnson, and she had nothing to do with it. She testified that she always treated Dr. Taylor respectfully because he had married her mother, and that he had treated her respectfully and kindly until he took his daughter away from her.
The experts gave their opinion upon the assumption that every material statement in the hypothetical case was true, and that no material statements had been omitted. As one of them, Dr. Green, expressed it, he gave his opinion upon the assumption “'that that is a corr'ect statement from beginning to end.” This witness, in explaining his reason for declaring Dr. Taylor insane, said: “It seemed as though he took his child from one person to another, not that the moral influences were not good, not that they did not instruct his child in the way she should go and bring her up a useful woman, but he was afraid they would turn her from him and teach her not to love him.” Dr. Green further said, if Dr. Taylor “knew that the first lady to whose care that child was committed disliked him very much, and that in her daily life she was constantly thrown in the most intimate relations with people who disliked him, some of whom did not speak to him and never did speak to him up to the time of his death,” that the “change of the daughter from the custody of that lady to some one else would not seem an unnatural one,” and that if such were the facts they should have been stated to him. Now, it seems to us that the above omitted undisputed facts had ah essential bearing on the issue involved. They certainly tended to give a reasonable and natural explanation of why Dr. Taylor should have taken his child from Miss Jordan. They tended to show the reason for his saying “that he did not like the influences surrounding her at Bittle Rock,” and that “he was afraid his daughter’s affections would be weaned from him.”
Without the above facts being stated, the above reasons that he gave for his conduct would not furnish an excuse or explanation for it; and, unexplained, it was a most potent factor in the chain of evidence relied upon by appellee to establish the delusion. We are of the opinion that a correct consideration of the hypothetical question by the experts and a just determination of the issues involved demanded that the above facts should be embraced in the hypothetical case.
2. The hypothetical question states that he compelled Miss Didlake and his daughter to accompany him from place to place over Europe and through England and Scotland, when his daughter was in a very precarious condition of health and should have had quiet and rest. We find no evidence whatever in the record tending to establish the above statement. Yet, if the statement was true, it tended to show most unnatural and unreasonable conduct on the part of Dr. Taylor,’and was a cogent circumstance, doubtless, in the minds of the experts when they were forming their opinion of his insanity from a review of all his conduct as set forth in the hypothetical case. We find no .other defects in the hypothetical question that we regard as material.
Hypothetical questions must fairly reflect the evidence, and unless they do the resultant opinion evidence is not responsive to the real facts, and can have no probative force. Quinn v. Higgins, 24 N. W. 482. The hypothetical case must embrace undisputed facts that are essential 'to the issue. In taking the opinion of experts, either pa-rty 'may assume as proved all facts which the evidence tends to prove. The party desiring opinion evidence from experts may elicit such opinion upon the whole evidence or any part thereof, and it is not necessary that the facts stated, as established by the evidence, should be uncontroverted. Either party may state the facts which he claims the evidence shows, and 'the question will not be defective if there be any evidence tending to prove such facts. When a party seeks to take an opinion upon the whole or any selected part of the evidence, it is the duty of the court to so control the form of the hypothetical question that there may be no abuse of his right'to take the opinion of the experts. The right may be abused by allowing the opinion to be given in such a way as to mislead the jury by concealing the real significance of the evidence, or by unduly emphasizing certain favorable or unfavorable data. On the above propositions, see 1 Gr. Ev. § 441, pp. 561, 562; Ince v. State, 77 Ark. 426; St. Louis, I. M. & S. Ry. Co. v. Hook, 83 Ark. 589.
The opinion evidence must be discredited because it is based upon a hypothetical case which omitted undisputed facts shown by the evidence, and included other facts not proved. We are of the opinion that, unless the evidence of the experts is taken into consideration, the other evidence is hardly sufficient to -support the verdict. It is impossible to divine what the opinion of the experts would have been had the hypothetical case reflected the essential and material facts established by the evidence. The case has not been properly and fully developed, and therefore, for the errors indicated,- the judgment is reversed, and the cause is remanded for new trial. •