concurred.
*I think the court did not err in its ruling in the eleventh exception.
The twelfth exception presents a question of practical importance. It will be seen from this bill of exceptions, that theL plaintiffs in this issue simply offered the évidence necessary to admit the will to probate, and rested. The defendants in the issue then offered their evidence of the want of testamentary capacity, and that the will was procured by undue influence. The plaintiffs in the issue, in rebutting, proposed to offer further evidence of testamentary capacity, and to rebut the evidence of undue influence offered by the defendants, which the court refused to permit them to do.
It will be seen from the deposition of Mr. Bitchie, which is made a part of the bill of exceptions, that it is important evidence in the cause. lie was the draughtsman of the will. The only question is, whether it should have been offered in chief, or whether it was competent as rebutting evidence. And it would seem that no solid objection could be urged against its admissibility to rebut the evidence of the defendants in the issue, tending to show undue influence and want of testamentary capacity in the testatrix. There was error, therefore, in excluding it.
Exception thirteen raises the question, whether it is cdm-peteut, in cross-examination, to inquire if the witness had *741had any private conversation with the counsel of the party calling him, in relation to his testimony in the cause, prior to being sworn. Courtesy among counsel may tend to discountenance the practice, and the court would doubtless take care that the practice be not abused. Tet, no legal ground is perceived why the inquiry may not be made, and the answer insisted on, if deemed important in the case.
Exception fourteen, is to the charge of the court that, in addition to the proof of execution of the will by the subscribing witnesses, to the jury, the propounders of the will must also offer in evidence the record of the probate of the will from the recorder’s office, or from the records of the probate court where it was recorded.
The question whether the will had been admitted to probate or not, was no part of the issue before the jury. That was a question for the chancellor upon the pleadings and proofs. The jury was sworn to try whether the paper writings specified in the order directing the issue, purporting to be the last will of Mary Forney, were her true last will and testament, and hot whether the same had been admitted to record in the probate court. It was competent, therefore, to prove the issue on the part of the plaintiffs in that issue, by any other legal evidence, as well as by the record or certified copy thereof of the probate of the paper propounded as the will. The court erred, therefore, in the ruling set forth in said exception fourteen, requiring such record or copy thereof.
Exception fifteen, is to the refusal of the court to permit the copy of the will and probate filed as an exhibit with the bill, to be read as evidence to the jury by the propounders of the will, after the court had instructed the jury that such evidence was necessary for the propounders. The evidence was proper enough, and the ohl-y. objection would seem to be to the time of offering it. And on that ground it might have been excluded, had not the erroneous instruction of the court, as to its necessity., made it necessary to offer it.
Judge Redfield, after reviewing the authorities, sums up *742the law of undoe influence as follows: It must be such as: “1. To destroy the freedom of the testator’s will, and then make'his act obviously more the offspring of the will of others than of his own. 2. That it must be an influence specially directed towards the object of procuring a will in favor of particular parties. 3. If any degree of free agency or capacity remained with the testator, so that when left to himself he was capable of making a valid will, then the influence so controlling him, as to render his will of no effect, must be such as was intended to mislead him to the extent of making his will essentially contrary to his duty, and it must have proved successful to some extent, certainly.” 1 Redfield on Wills, 523-4-5.
The rule as laid down by G-reenleaf, is: “It must be an influence obtained by flattery, excessive importunity or threats, or in some other mode by which dominion is acquired over the will of the testator, destroying his free agency, and constraining him to do, against his free will, what he is unable to refuse.” 2 Green!, on Ev., sec. 688.
In Williams on Executors, the rule is laid down as follows: “The influence to vitiate a will must amount to force and coercion, destroying free agency; it must not be the influence of affection and attachment; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act; further, there must be proof that it was obtained by this coercion, by importunity which could not be resisted, that it was done merely for the sake of peace, so that the motive was tantamount to force and fear.” 1 Williams on Executors, 37.
In Green v. Green, 9 Gratt., 333, the rule is laid down by Judge Allen, as follows: As to undue influence, the influence resulting from attachment, or the mere desire of gratifying the wishes of another, if the free agency of the party is not impaired, does not affect the validity of the-act.
In Parramoure v. Taylor, 11 Gratt., 239, the court adopted the paragraph copied from Williams on Executors, 37, and *743recognized it as the law of Virginia in relation to undue influence.
The instruction given by the court, in exception sixteen,is not well nor clearly expressed, but is substantially to the effect that, if the testatrix made a disposition of her estate, which she did not desire, and did not intend, aud such disposition was so made by reason of the undue influence exerted upon her and operating at the time of making the same, it was such undue influence as would avoid the will, notwithstanding she was not controlled by any act of force, coercion or persuasion put forth at the time of signing the paper. And so understood, is not objectionable, for the freedom of the will is effectually overcome, and the act obviously more the offspring of another’s will than of the testatrix.
There was no error in the instruction given in exception seventeen, taken as an independent or abstract proposition, but as applicable to the peculiar issue and circumstances of the case, it was calculated to mislead the jury and induce a response in the verdict to but half the issue submitted for inquiry, and was therefore objectionable.
There is no error in the instruction given in exception eighteen.
Exception nineteen is, that the verdict is not responsive to the issue. The issue was that a jury be impannelled, “to determine by their verdict whether any, and if any how much, of the papers in the bill mentioned, dated respectively, December 27th, 1861, and March 7th, 1866, be the will of the said Mary Forney, deceased.” ' The verdict is, “We the jury find that the paper writing offered in evidence in this cause, purporting to be the will of Mary Forney, deceased, and dated December 27th, 1861, is not, nor is any part thereof, the last will of said Mary Forney, deceased.” Nothing is said, in the verdict, in response to that part of the issue relative to the paper dated March 7th, 1866. There was a motion to set aside the verdict for that cause, which the court overruled. ■ The verdict was clearly, therefore, obnoxious to the objection of not being responsive to the issue.
*744Exception twenty, is to the refusal to grant a new trial, on the ground that the verdict is contrary to the evidence. As the case must go before another jury, it is deemed proper to express no opinion on this point.
For the errors above stated, the decree of the circuit court must be reversed, with costs to the appellants, the verdict set aside, and a new trial awarded, and the cause remanded to the said circuit court for further proceedings to be had therein, in conformity with the views above indicated.
Degree reversed.
[The remainder of this opinion was prepared by Judge Brown, when a member of this court, and is now adopted ánd substantially concurred in by Judges Berkshire and Maxwell.]