dissenting.
I would add to the dissent of Mr. Justice Warner, with which I agree in the main, that in evaluating the testimony of the attorney who drew and attested the will and who is probating the same on the one side, and the doctors’ and nurses’ testimony on the other side, to determine where the weight of the testimony lies, one must not forget that the contestants’ witnesses have no interest whatsoever in the outcome of the case, while the attorney for proponents is interested to the extent that he naturally wants his midnight will upheld and his attorney’s fee in probate assured, nor must we forget that the attorney is hard of hearing, and that the discussion was partly in Norwegian with which the attorney was not familiar. I do not say these things in any disparaging manner, but merely mention them so that the human element will not be overlooked. This is a casé where we must weigh the evidence and find where it preponderates. It is not a question of who is prevaricating.
It further occurs to me that the majority opinion in this case overemphasizes the value of the testimony of the attorney who attested the will, and the telephone operator, both of whom were strangers to the decedent. The telephone operator’s opportunity to appraise the *477testamentary capacity of testatrix covered a period of only 15 minutes. She testified that a general conversation was taking place and that she did not pay much attention. Hardly a dozen words were spoken to her by testatrix.
Concerning what occurred at the execution of the will, I will narrate the attorney’s testimony as gathered from the majority opinion.
When Mr. Levenson arrived at the hospital between 10:30 and 11 o’clock in the evening, he told Mrs. Andersen that he had the papers with him but that they would have to obtain witnesses. He said he could act as one, and Mrs. Andersen inquired if Miss Shuholm could not act as a witness. Upon being told that she could not, he then brought in a Mrs Edmonds, the telephone operator, and then Miss Shuholm read the will to Mrs. Andersen paragraph by paragraph, first in English and then in Norwegian. After each paragraph had been read in English, Miss Shuholm asked Mrs. Andersen in Norwegian if she understood it, and Mrs. Andersen each time responded, “ Ja, that’s what I want; that’s what I want. ’ ’ Mr. Levenson then asked Mrs. Andersen if she wanted him to witness the will, to which she replied, ‘ ‘ Ja. ” Mrs. Andersen then signed the will and asked Mrs. Edmonds and him to witness it. They affixed their signatures as witnesses, and Mrs. Andersen then said, “Well, I feel much better now. ’ ’ (How Mr. Levenson would know that Miss Shuholm read the will paragraph by paragraph and asked Mrs. Andersen in Norwegian if she understood it, I am unable to fully comprehend, since he testified that he did not understand Norwegian. This certainly has some bearing on his credibility.)
In the instant case, the execution of the will con*478sumed approximately 15 minutes of time; testatrix was under an opiate and what occurred during that period was so meager that the attesting witnesses did not have much material on which to base their testimony as to her mental capabilities.
Under § 2-228, O.C.L.A., a witness has the right to testify on a question of “science, art, or trade, when he is skilled therein, ’ ’ and the opinion of a subscribing witness to a writing may be given when the validity of the writing is in dispute “respecting the mental sanity of the signer, and the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given.”
As to the mental capacity of testatrix, it appears to me from reading the majority opinion that the same is based primarily on the testimony of the attorney relating to what happened during the 45 minutes he was with the testatrix early in the evening. The opinion of the attorney formed during this period does not rest on the same footing as that of the doctors and nurses as they have a statutory preference, being skilled in their respective professions. In 57 Am. Jur., Wills, 124, § 131, we find the following language:
“ * * * The opinion of an attesting witness, formed at another time, before or after the execution of the will, stands like that of any other witness and is not admissible unless the facts upon which the opinion is based are in evidence.” See Williams v. Spencer, 150 Mass. 346, 23 N.E. 105, 5 L.R.A. 790, 15 Am. St. Rep. 206.
It is doubtful that the attorney, not having been an intimate acquaintance of testatrix, would be allowed to give his opinion as to her mental condition based on what occurred at the seven o’clock meeting at the hospital, since the sanity of the testatrix was the ulti*479mate question for the court to determine and could not be testified to, the testimony of the subscribing witness being limited to the occasion of the execution of the will.
In a number of places in the attorney’s testimony referring to the seven o’clock hospital meeting, he drew his conclusions concerning decedent’s mental condition, some of which are the following: That she was “fully competent”; that “I wanted to first determine for myself that I was dealing with a person who had intelligence. I’ve been practicing law long enough to know that the execution of a will requires competency, and I wasn’t going to draft a will for a person whom I didn’t believe was capable of signing and understanding a will.”
In answer to the question, “Now, Mr. Levenson, what did you observe about Randi Andersen, when you saw her, as to her mental condition [referring to the first meeting]?” propounded by the attorney, Mr. Levenson replied: “Mentally she was alert; her eyes were keen; she had a good grip in her hand, a warm grip in her hand; she shook hands with me when I was there at seven o’clock; her mind functioned well; she answered questions without any hesitancy; her conversation that was going on was intelligent; her answers were intelligent; she smiled when we brought up something that was interesting to her.”
In reply to the question, “And would you say that at the time of the drafting, or the dictation for the drafting, and at the time of the reading and the execution of the will, that Randi Andersen knew the nature and extent of her property?” Mr. Levenson said, “She most assuredly did.” (Italics mine.)
It will be observed that there was no objection to *480this line of testimony, and, for that reason, it might be argued that it would have probative value. This may be true but the weight of such testimony, in my opinion, would not measure up to that of the testimony of the doctors and nurses.
We then have a lay witness’ testimony improperly received lined up against that of three doctors and three nurses. I prefer to accept the testimony of the preferential witnesses.
In Chrisman v. Chrisman, 16 Or. 127, 18 P. 6, 12, we said:
“ * * * Hence great weight is attached to the testimony of subscribing witnesses; for they have the opportunity to observe the mental condition, and all the circumstances surrounding the execution of the will. * * * But the final decision of the case does not depend on them, but upon all the evidence adduced.” (Italics mine.)
The reason then for the sanctity of the testimony of the attesting witnesses is that they have an opportunity at the time of the execution of the will to observe the testator’s mental condition, and where they have small opportunity, as in the case at bar, to observe the testatrix’ mental condition, their evidence is entitled to little weight.
I have taken opportunity to investigate a few, but not all, of the previous cases decided by this court wliere the testimony of the subscribing witnesses was given very little credence. I refer first to In re Faling’s Will, 105 Or. 365, 208 P. 715, where this court disregarded the testimony of the subscribing witnesses and accepted the testimony of contestants’ witnesses, the weight being with the latter.
In In re Johnson’s Estate, 162 Or. 97, 91 P. 2d 330, this court, speaking through Mr. Justice Bailey, re*481fused to uphold the will on the testimony of the attesting witnesses, one of whom was an attorney and the other a stenographer in the attorney’s office. In that case there were other witnesses supporting the mental capacity of the testatrix; however, on the contestants’ side, among other witnesses, were a doctor and two nurses.
This court, in In re Murray’s Estate, 173 Or. 209, 144 P. 2d 1016, speaking through Mr. Justice Brand, affirmed the writer who at that time occupied the trial bench and gave small weight to the testimony of the attorney, a subscribing witness to the will, and his secretary, who also witnessed the will, both of whom were well acquainted with the testatrix. In that case the pendulum swung in favor of the contestants upon lay testimony and upon the testimony of a medical doctor who had known the decedent but testified only as an expert witness.
It is interesting to note that in the Murray case the proponents of the will rested, as did the proponents in the instant case, on the testimony of the subscribing witnesses to the will.
In Legler v. Legler, 187 Or. 273, 211 P. 2d 233, this court, speaking through Mr. Justice Rossman, did not take much stock in the testimony of an attorney who was a subscribing witness and held that Mr. Legler was mentally incompetent.
I mention the above cases merely for the purpose of emphasizing that we have not always placed a halo around the head of a subscribing witness, whether he be layman or attorney, and that the testimony of a subscribing witness to an instrument is entitled to great weight only where the circumstances justify it. So, when we lay down a fixed rule that “The testi*482mony of the subscribing witnesses in support of the mental competency of the testatrix is entitled to great weight,” such rule should be qualified to the extent that such weight should not be so great as to emasculate the preponderance of evidence rule. I therefore dissent.