delivered the opinion of the Court:
During the progress of the trial complainant offered in evidence the will of testatrix’s husband, Henry Pooler, an inventory of his estate, written articles of settlement between complainant and Philany and Louisa Cristman, to which it was claimed testatrix had assented. This offered evidence was objected to by the defendants; the objection sustained, and complainant excepted. This testimony was offered for the purpose of showing the amount of property the testatrix had at the time of making the will, and her ability to contract. The will of Henry Pooler, had it been read in evidence, would not show the property possessed by the testatrix at the time she executed the will, nor would the inventory establish that fact. The will by Henry Pooler had been probated in the County Court, and his estate had been settled, and the reports of the executor and the receipts executed by the testatrix would show fully and clearly the amount the testatrix received from her husband’s estate, but for some unexplained reason this proof was not offered. We think the executor’s reports on file in the County Court, and the receipts executed by the testatrix, might have been put in evidence, for the purpose of showing the amount of property which went to the testatrix from her deceased husband, if it was thought important to establish that fact; but the will of Henry Pooler, had it gone to the jury, would in all probability, have brought to the attention of the jury so many matters entirely foreign to the issue involved, that the jury might have been prejudiced by the offered evidence.
As respects the articles of settlement, the testatrix was not a party thereto. It seems that complainant, after the death of his father, claimed more than he was allowed by the will; after considerable negotiation between him and his two sisters, they bought from him his interest in his father’s estate, paying a larger sum than he would have received by the terms of the will, audit was claimed that his mother, the testatrix, paid a portion of this amount from her own money, while she derived no benefit from the settlement; and this transaction, it is argued, was competent to show her incapacity to transact ordinary business. This settlement was so disconnected with and foreign to any issues involved in this case, that we think it was properly excluded from the jury. What settlement the sisters of complainant-may have made with him had no bearing on the testamentary capacity of the testatrix. Moreover, if she saw proper' to aid her two daughters in making a settlement with complainant, which prevented a threatened law-suit over her husband’s will, and paid money out of her own pocket for that purpose, we fail to see how that fact had any particular bearing on her testamentary capacity or her ability to transact ordinary business. Doubtless she thought it wise to-pay money out of her own pocket rather than be involved in litigation over her husband’s will, although she mightbe the loser financially through the transaction, and we do not think what she did was a proper subject of inquiry in this case.
It is next claimed that the court erred in giving defendant’s tenth instruction, as follows:
“You are further instructed, that the mere fact that a person is of great age creates no presumption against the ability of such person to dispose of property by deed or will; and in this case, although you may believe from the evidence that the testatrix, Magaret Pooler, at the time of executing the paper in question was of about the age of 86 years, and suffering to some extent from weakness or bodily infirmity, yet such circumstances would not render her incapable of disposing of her property by will, as she saw fit.”
Extreme old age does not, of itself, disqualify a person from making a will, for a man may freely make his testament how old soever he may be, since it is not the integrity of the body but of the mind that is requisite in testaments. Jarman, vol. 1, page 53. In Van Alst v. Hunter, 5 Johns. Chan., 148, where the testator was between ninety and a hundred years of age, when he executed a will, Chancellor Kent said: “The law looks only to the competency of the understanding, and neither age nor sickness nor extreme distress or debility of body will affect the capacity to make a will if sufficient intelligence remains.” In Whitenack v. Stryker, 1 Green Ch., 8, it was held that old age and failure of memory do not, of themselves, necessarily take away a testator’s capacity. See, also, Andress v. Weller, 2 Green Ch., 605; Stevens v. Vancleve, 4 Nash C. C., 262; Bird v. Bird, 2 Hagg., 142; McKenzie v. Handasyde, 2 Hagg., 211. We think it is a plain proposition, and one too well established by both text writers and the decisions of courts, that old age does not, of itself, deprive a person of testamentary capacity.
The instruction may not be entirely free from criticism, but the substance of it is, that although the jury found from the evidence that the testatrix was eighty-six years of age when she executed the will, and suffering from bodily infirmity, such facts, standing alone, would not render her incapable of making a will. We do not see how the jury could be misled by this instruction, especially when considered in connection with the instructions given on behalf of the complainant, the ninth of which reads as follows:
“The jury are instructed, that in order to make a valid will, the law requires that a person shall be of sound and disposing mind and memory, as defined in these instructions ; and want of testamentary capacity does not necessarily require that a person shall be insane; weakness of intellect, arising from old age or great bodily infirmity or suffering, or from all these combined, may render the testatrix incapable of making a valid will, when such weakness disqualifies her from knowing or appreciating the nature, effect or consequence of the act she is engaged in.”
So also by complainant’s eighth, the jury was directed as follows:
“The court further instructs you, that if you believe from the evidence in this case that Margaret Pooler, at the time of the execution of the will, was so diseased mentally that she was incapable, by reason of mental weakness caused by disease, old age, or other derangement, of acting rationally in the ordinary affairs of life, and of intelligently comprehending the disposition she was making of her property, and the nature and effect of the provisions of said alleged will, then they should find that the writing produced is not the will of Margaret Pooler, deceased.”
It is also claimed that the court erred in giving defendants’ first instruction as follows:
“The court instructs you, that the fraud and undue influence which would, render a willinvalid, must be connected with the execution of the will and operating at the time the will is made; and the fact that the beneficiaries of a will are those by whom the testatrix was surrounded and with whom she stood in confidential relations at the time of the execution of the will, or the fact that the principal beneficiaries had for years control of her estate, or the fact that the provisions of the will were for the benefit of such persons, or may seem unreasonable, yet such facts are not grounds for inferring undue influence; and in this case, if you believe from the evidence that the testatrix, Margaret Pooler, had sufficient mind and memory at the time of the execution of the will in question to know and understand the business in which she was engaged at the time she executed the will, and a recollection of the property she meant to bequeath and of the persons to whom she meant to bequeath it, and that she executed the said instrument voluntarily and of her own free will, then you should find by your verdict that the paper produced is the will of Margaret Pooler.”
The first clause of the instruction directing the jury that fraud and undue influence which should render a will invalid must be connected with the execution of the will and operating at the time the will is made, is sustained by Bremfield v. Bremfield, 43 Ill. 147; Gould v. Hull, 127 id. 525; Ruchenbach v. Rudduch, 127 Pa. St. 564. The principal objection is, however, directed to that portion of the second clause of the instruction relating to the provisions of a will which may be unreasonable. As a general rule, a person may dispose of his property by will as he may desire, its validity does not depend upon an equal distribution of the property among those who would inherit had no will been made, but the testator may give one child more than another without invalidating the will. But while this is true, inequality in the distribution of property may be considered as a circumstance tending to establish undue influence or unsoundness of mind, but it is not, of itself, sufficient for this purpose. Salisbury v. Aldrich, 118 Ill. 199; Schneider v. Manning, 121 id. 385.
It is true, that in the opinion in Rutherford v. Morris, 77 Ill. 414, expressions may be found which might authorize that part of the instruction complained of. But what is said in Rutherford v. Morris was not concurred in by a majority of the court, and can not be regarded as authority. We think the second clause of the instruction, considered alone, erroneous; but the- objectionable part of the instruction seems to be qualified by the last clause. The evident idea intended to be conveyed to the jury by the instruction, when the second and last clauses are considered together, would seem to be this: The fact that the provisions of the will may seem unreasonable, is not ground for inferring undue influence, providing “you believe from the evidence, the testatrix had sufficient mind and memory, at the time of the execution of the will, to know and understand the business in which she was engaged at the time she executed the will and a recollection of the property she meant to bequeath and of the persons to whom she meant to bequeath it, and that she executed the said instrument voluntarily and of her own free will.”
While the instruction was drawn in an awkward manner, and should have been changed in its phraseology before it was given, we do not think the jury could be misled by it. Moreover, by complainant’s twelfth instruction, the jury were expressly directed that in determining mental capacity they had a right to look at the provisions of the will and could consider the history and relations of testatrix and complainant.
As respects the issue of fact presented to the jury but little need be said. Much evidence was introduced on the trial by the respective parties; the evidence was conflicting, and we are not prepared to say, after an examination of all the evidence, that the verdict is unsupported by the evidence. The judgment of the Appellate Court will be affirmed.
Judgment affirmed.