dissenting.
In my opinion the preponderance of the evidence discloses a want of testamentary ' capacity in íhé decedent at the time of the execution- of the will. I feel the majority opinion gives too great weight to the testimony of the two attesting witnesses and too little to that coming from the physicians who served the decedent in her last illness and the corroboration supplied by the hospital nurses and hospital records. It ignores the rule “that clear and convincing proof is required of the proponents as to the testamentary capacity of the testatrix in order to uphold the will in question.” (Italics mine.) Snyder v. De Remer, 143 Or. 414, 417, 22 P. 2d 877. Also see In re Johnson’s Estate, 162 Or. 97, 91 P. 2d 330.
The proponents rested their case exclusively upon the testimony of the will’s attesting witnesses, both laymen. The contestants depended entirely upon the testimony of seven persons, i.e., the two doctors charged with Mrs. Andersen’s care while she was in Providence *467Hospital.; three nurses attached to the staff of that hospital who had varying degrees of professional responsibility in her case during her confinement there; Hr. Leland V. Belknap called as an expert; and a Mrs. Yarbrough, who was a patient in the same room with Mrs. Andersen from the date of her entry and up to and including the time she executed the will. Every witness called by either side was disinterested. The motives of none can be impugned. Not one of them ever knew Mrs. Andersen prior to the day she entered the hospital. All the evidence is predicated upon observations made within the walls of that institution, except for the short time Dr. Amato first examined her at her home in response to an emergency call. It was that examination which dictated the immediate hospitalization which followed the same day.
I think it is significantly noteworthy that the proponents did not offer one iota of testimony in rebuttal. The evidence coming from contestants’ witnesses stands uncontradicted and the medical testimony unchallenged. This sharp conflict left to the court no alternative but to decide whether it would predicate its judgment as to the testatrix’ mental capacity solely upon the testimony of the two attesting witnesses who were not trained in medicine or solely upon the uncontradicted scientific judgment of three doctors and three nurses.
I think it is also significant, in that state of the record, that the proponents did not call to the stand the two lay persons closest to Mrs. Andersen — who were her neighbors and friends during her later days and one or both of whom were with her most of the day upon which the will was executed; who were responsible for the retention of Mr. Levenson as her attorney; *468who were present at his initial conference with decedent; who were at her bedside when she executed the will; who were beneficiaries under its provisions; and who were both in the courtroom at the time of the contest. I refer to Evelyn I. Shuholm, the executrix, who not only acted as Mrs. Andersen’s interpreter during Mr. Levenson’s interviews when Mrs. Andersen resorted to Norwegian but who also officiated as the attorney’s secretary in taking notes of decedent’s alleged directions. I also refer to Minnie Amundson, one of the residuary legatees. The stenographic record of Miss Shuholm was not even offered in evidence. As a result the testimony of the proponents is wanting in the qualities of clarity and conviction mandated by the law. Snyder v. De Remer, supra.
While the testimony of the attesting witnesses may seem to be “clear,” yet it lost whatever “convincing” quality it had immediately upon the contestants ’ resting. The testimony of the contestants was of the type and weight that cast upon the proponents the duty and burden to overcome its devastating impact and restore the then missing element of conviction, if they were able to do. so. I can only assume by their silence and failure to make rebuttal that they could not meet the challenge. Their quiescence at this juncture with théir election to thus retire and rely upon technical legal rules to save their case from the weight of the medical evidence marks, in my opinion, the time and place of their complete frustration in this matter.
Mrs. Andersen was 85 years old at the time of her last illness. Her condition continued as extremely critical up to the time that she died, which was on April 2,1949, four days after she had executed the will. When she first entered the hospital, she was in extremis *469with all the signs or symptoms of acute heart failure and it was so had, in fact, that the resident physician who received her testified'that hers was one of the most severe cases of heart failure that he had ever seen. She was cyanotic and unable to move any part of her body except her head and right arm. Eubber tourniquets were applied to both arms and legs to make it as easy as possible for her heart to circulate the blood to her brain. She had extreme difficulty in breathing, so much so that oxygen was administered. She was still taking oxygen through tubes in her nose each time Mr. Levenson interviewed her. The resident physician tells us that she had a generalized arteriosclerosis which impaired the blood supply to the brain and that there Aims also a noticeable deterioration of kidney function. Part of. her medication included hypodermic administrations of morphine at .various times, including a dosage given about an hour and a half prior to the time that she executed the will. The doctors did not rest their determination of her mental capacity at the time of the will’s signing alone in terms of her reaction to the morphine dosages but took into account her advanced years and other, then evident physical disabilities. It Avas the considered judgment of the attending doctors and the hospital nurses who waited upon her that Mrs. Andersen did not have and could not have had testamentary capacity at the time she signed her will nor, indeed, at any .time after she entered the hospital. One of the nurses solicited to act as a witness to the will’s execution declined to do so for this reason.
Against this line of testimony from the mouths of these experienced and scientifically trained persons serving her as necessary during her hospitalization, Ave *470have only the testimony of Mr. Levenson, the attorney who drew the will and who had never met Mrs. Andersen prior to the time he visited her at seven o’clock on the evening of March 29, and the testimony of the hospital telephone operator, who likewise never knew Mrs. Andersen until called to her room to act in the capacity of an attesting witness. Mrs. Edmonds’ opportunities of observation were limited to approximately fifteen minutes.
Ordinarily, a rational statement betokens a rational and normal mind capable of making sound and intelligent judgments and expressing ideas with reference thereto in a sufficiently intelligent and coherent manner to be understood by the persons to whom such statements are addressed. It is one of the seemingly accurate criteria most frequently employed by laymen. But such a superficial manifestation of rationality is not always a true indication of a sound mind or free will. This is attested by a variety of human experiences. By way of illustration: A person under hypnotic control may be induced to make what may appear to be intelligent and rational statements but which, nevertheless, are not indicative of the true will of the speaker and which, indeed, may even convey ideas and opinions diametrically opposed to those that he would express or entertain when released from the hypnosis. Although there is no suggestion in this matter that Mrs. Andersen was the subject of hypnosis, and, of course, she was not, the evidence is clear and uneontradicted that her condition dictated the administration of morphine, a potent narcotic. It is a matter of common knowledge that certain drugs, particularly in the narcotic category, sometimes induce a change of character and departure from normal habits of think*471ing and expression without necessarily destroying the power of making what might appear to another as a clear and rational statement. The reactions to the stimulus of a given dosage of morphine are not always the same upon all people. Indeed, we learn from the doctors that due consideration must be given to the age and physical condition of the patient, and that precise thing was done in this instance when they evaluated the effect of the narcotic on the mental capacity of the decedent. Even if Mrs. Andersen had made the various statements and had supplied the information testified to by the attesting witnesses, it does not follow in her case that this surface and visible show of apparent mental lucidity did, in fact, connote testamentary capacity or necessarily demonstrate that she even knew what she was then saying or that she would have any memory of it in any following lucid interval.
The statutory proceeding to commit an insane person is not in all things exactly analogous to the determination of the mental capacity of a testator as of the moment he executes a will. The former presumes the presence of a continuing state of mental illness. The latter presumes a continuing capacity or, if the testator’s mental capacity is challenged in a will contest, that he was mentally competent or, if not mentally competent, that he had what the law calls a “lucid interval” at the time. Both proceedings have the fundamentally common element of requiring a judicial determination of mental status or mental capacity of a given person as of a given time and, therefore, should basically observe the same evidentiary standards in the search for a correct answer.
The determination in a commitment proceeding is predicated upon a positive recognition of the value *472of scientific disclosures. It mandates a finding by doctors that a party is mentally ill as a condition precedent to any order of commitment (chapter 571, Oregon Laws 1949). That law is a legislative recognition of the importance of medical testimony in matters where the status of so delicate a thing as mentality is concerned. It is a species of public acknowledgment that those properly trained in the great art of medicine are better equipped to say who is or who is not mentally competent than is a lay observer, no matter how disinterested or how well otherwise educated that lay observer may be. It is a law modern in its concept and enlightened in its appreciation of medical progress and training with its more exact and convincing tests of mental capacity than are many of the rules of probate law conceived in days of antiquity and too often presently applied.
Here, however, in a proceeding to evaluate the testatrix’ mental capacity, i.e., to assure ourselves that she had the necessary comprehension, reason, memory and understanding sufficient to do a legal act, the majority of the court relies exclusively upon an old rule and takes no account of the statements coming from those with a medical background. I refer to the rule which gives “great weight” to the testimony of attesting witnesses. This rule giving importance to such testimony was first written into the body of the law of the state seventy years ago by Mr. Justice Lord in Clark v. Ellis, 9 Or. 128, 147. But he did not then employ the word “great” nor “much” but rather rested his conclusion upon the quoted statement from Stevens v. Vancleve, 4 Wash. C.C.R., reading:
“The evidence of the attesting witnesses, and next to them, of those who were present at the *473execution, all other things being equal, are most to be relied upon.” (Italics mine.)
Subsequently this court has variously expanded the rule predicated upon that holding to read “great weight,” or as in Morley v. Silverton Hospital, 138 Or. 75, 95, 5 P. 2d 92, “much weight.” The effect of the majority opinion in this matter is to give such lay testimony not just “much weight” or “great weight” but to give it the status of greater weight than uncontradicted and unchallenged medical testimony coming from a host of scientifically trained observers and to apply it in the face of a situation wherein it cannot be said “all other things being equal.” Clark v. Ellis, supra. The majority opinion projects a sort of legal anomaly in the jurisprudence of the state by the secondary place it here gives to medical judgment, which I think should be and can be avoided in this matter.
The only justification which can be suggested in this case for the reversal of the application of the proper respect,for medical testimony accorded by statute in a commitment proceeding and that given by the majority opinion is that the attorney and the telephone operator were actually present at the moment when, as they alone testify, the decedent executed her will and that the doctors and nurses were not in similar proximity to the decedent at the same time. But the so-called advantages growing from momentary propinquity to the testatrix by her attesting witnesses are weakened when we recall that the opinion of the attorney who drew the will as to the decedent’s testamentary capacity rests upon a forty-five-minute conversation with her on the occasion of their first meeting, at a time when she was in extremis and when her speech, alternating between Norwegian and English, was handi*474capped by the presence of rubber tubes in her nostrils conveying needed oxygen. Testimony of attesting witnesses to the competency of a testator may be overcome by competent evidence, circumstantial or direct, notwithstanding that it does not cover the particular day the will was executed if it does cover a reasonable time before and after that day. In re Murray’s Estate, 173 Or. 209, 227, 144 P. 2d 1016.
The testimony of the attesting witnesses is further weakened when we know, as we do, that the telephone operator’s entire acquaintance with the testatrix is encompassed by the fifteen-minute period when she was in her presence for the sole purpose of acting as a witness to the execution of Mrs. Andersen’s will. As between the hospital’s trained nurse who refused to act as a witness because she did not think Mrs. Andersen was mentally competent and the observations of the hospital telephone operator concerning the testatrix’ mental competency, predicated solely upon what she heard Mrs. Andersen say within the limited time she was in Mrs. Andersen’s room, I choose to give the greater weight to that of the nurse. As between the testimony of the doctors and nurses who attended her in the hospital and the want of training and superficial observations of the attesting witnesses garnered within a short space of time and in an atmosphere of trying circumstances, I prefer to accept the judgment of those skilled in medical science that Mrs. Andersen’s advanced age and deteriorated physical condition, such as it was at the time, plus the factor of narcotic medication administered but a short time before the will’s signing, rendered her mentally incompetent to execute such a document, and this notwithstanding any legal formula to the contrary.
*475This court cannot, of course, change the commitment law to conform to its ideas as to tests of mental competency, as reflected by the majority opinion. This court can, however, and in the opinion of the writer should, when presented with an opportunity, such as is afforded by the facts in the instant case, give the professional testimony the place of dignity and persuasiveness that I think it is entitled to receive in a matter of this kind under the circumstances here presented and thus bring us more into harmony with the spirit of the legislature’s recognition of the relative importance and skill of the medical profession when the mental capacity of a person is challenged in a commitment proceeding (chapter 571, Oregon Laws 1949). Justice demands that our fidelity to such an ancient rule as is the one applied in the majority opinion for testing a testator’s testamentary capacity through the voice of attesting witnesses should not become so inflexible that we decline to recognize and apply on appropriate occasions when available, as here, the more modern and superior knowledge of the medical profession.
When a court has the opportunity to listen to equally disinterested witnesses who have the training which enables them to look beyond the testatrix’ spoken word and describe and evaluate the mental processes which are responsible for its utterance and to dogmatically assert that such spoken words, no matter how apparently rational they may sound to a lay person, do not reflect the normal or true ideas of the speaker at the moment, then the testimony of the attesting witnesses should give way to the experienced professional judgment.
My conclusions above rest solely upon the facts revealed by the record in this cause. I have no desire *476nor intention to here indicate approval of a rule which would uniformly give a preferred status to medical testimony, according greater weight to it than to testimony adduced by lay witnesses in matters where mental capacity is the subject of challenge; but here the situation is unique and its very novelty commands appropriate recognition.
The lower court should be reversed.