On Petition for Rehearing.
McCabe, J.The earnestness, ingenuity and learning with which the petition for rehearing in this case is pressed, and the growing importance of the subject, have induced us most carefully to review the voluminous record of over 1,000 printed pages, and also to consider and investigate very closely the legal principles by which courts should be guided in determining questions of testamentary capacity as affected by mental unsoundness.
In opposing our holding that the trial court erred in giving a series of instructions on the subject of undue influence, regardless of their correctness as ab*483stract propositions of law, because there was no evidence on that subject, counsel do not deny the correctness of the holding in the abstract, nor that it was error in the trial court to so instruct, but put their reliance upon the proposition that such error was not available to appellants, because they asked the court to give five instructions on the same subject. It might be sufficient answer to this contention that no such defense of that action of the trial court was made in appellees’ original briefs on the hearing of this case, and no such question for decision was presented originally, and that the point is made now for the first time.
There was nothing said in the original briefs or argument about appellants being precluded or estopped by inviting the error in asking instructions on the same subject. It is too late to raise a point or present a question for the first time on a petition for a rehearing. But there is no merit in the point any way, because it does not appear from the record that appellants are the parties that invited the error.
The authority cited in support of the point is Elliott App. Proced., section 625-630. It is said in the latter section that: “The rule that a party cannot successfully assail a decision given upon his express or implied invitation is really nothing more than an application of the general principle that parties will be held to the theories they present and upon which they secure action by the court.”
The rule as stated in Pence v. Waugh, 135 Ind. 143, at page 150,is: “Tf a party opens the door for the admission of incompetent evidence he is in no plight to complain that his adversary followed through the door thus opened.’ ” Perkins v. Hayward, 124 Ind. 445. The rule as stated in Louisville, etc., R. W. Co. v. Miller, 141 *484Ind. 533, at page 563, is “that a party cannot successfully complain of error he invites.”
The record does not show that appellants were the parties that invited and led the court into an erroneous line of conduct. On the contrary, it appears that the court acted on appellees’ invitation into error, and did not act on appellants’.
Another point urged upon our consideration which we deem worthy of notice, is the holding in the original opinion that the. forepart of the 7th instruction given by the court was erroneous, is seriously complained of because it is not pointed out in the opinion that there is anything analogous in the instructions passed on in the cases cited, to that contained in the one in hand.
It ought to be sufficient to say in response to this criticism that the language of the opinion is taken largely from one of those cases. One sentence in that instruction ought to condemn it if there was no other objection to it, relating as it does to the weight of expert testimony; that sentence reads thus: “In proportion to the degree of such harmony between the facts embraced in the hypothetical questions and those embraced by the evidence, and the skill and capacity of these experts judging by the law of mind, to deduce therefrom just conclusions, will be the value and force of such testimony.”
It does seem that one who is so good a master of English as the learned counsel of appellee need not to be told that the language quoted makes the value and force of the expert testimony depend entirely upon the degree of harmony between the facts embraced in the hypothetical questions and those established by the evidence.
There is no other part of that instruction that qualified it in this respect
That is, if there was perfect harmony between the *485facts assumed iu the hypothetical questions and those proven by the evidence, then the instruction, if it meant anything, meant such expert testimony was at least of great value and force regardless of the conduct and actions of such witnesses on the stand, the materiality of the facts assumed, the partiality or impartiality of such witnesses, and many other circumstances that the jury had a right to, and which it was their duty to take into consideration in weighing the testimony of such witnesses. It.is true that if the facts assumed in the hypothetical questions are not substantially proven by the other evidence, the expert testimony thus elicited will be of little or no value. But it does not follow, on the other hand, that such expert testimony is entitled to full credence and belief or deemed of great value simply because the facts assumed in the hypothetical questions to the expert witnesses were fully proven by the other evidence. But such was the force and effect of the instruction. In Goodwin v. State, 96 Ind, 550, a,t page 569, it was held upon this subject that: “It is proper for the court to direct the minds of the jury to the facts of the case, but it.is not proper for it to annex weight and value to thém; that is the exclusive province of the jury.” To the same effect is Garfield v. State, 74 Ind. 60.
The credibility of expert witnesses and the weight of their testimony are as much subject to the scrutiny and determination of the jury as that of any other class of witnesses that may come before them.
But the most serious objection urged against our original opinion relates to our holding on the instructions touching unsoundness of mind.
Counsel quote portions of the instructions other than the 8th, quoted by us in the original opinion, and' repeating the same proposition contained in the 8th in different language, namely, as in the 7th, and which *486we here reproduce from their brief thus: “If you believe from such evidence, when considered in connection with all the other proofs in the case, that during the period of time in which the will of the testator was executed he was of unsound mind, then it will be your duty, in like manner, to' find for the plaintiffs;” as in the 2d, “Under the law of this State, a person of unsound mind cannot make a will, and a person of unsound mind means an idiot, non compos, lunatic, monomaniac or distracted person,” as in the 12th, “If you are satisfied by a preponderance of the evidence that when he executed the will the testator was of unsound mind you should find for the plaintiffs,” and as in the 13th, “you are to say whether or not the testator was of sound mind at the time of the execution of the will. If he were not of sound mind you will, of course, find for the plaintiffs.”
The learned counsel say that our version of these instructions that they “in effect told the jury that if the testator , was a person o.f unsound mind, even though such unsoundness was so slight that it had no influence or effect in the production of the will, or in the disposition of property therein provided for, the will would nevertheless be void,” is, as they say, a startling interpretation.
No reason is given or argument made why a direction to the jury that “If he [testator] was not of sound mind you will, of' course, find for the plaintiffs,” does not mean that they are to so find regardless of the degree of mental incapacity and regardless of the fact that such unsoundness did not deprive him of testamentary capacity, or enter into or affect the will or the manner of the disposition of the property therein made. Or why a direction to the jury that if at the time the testator executed the will “he was of unsound mind, then it will be your duty in like manner *487to find for the plaintiffs,” does not require them to so find, even though the evidence clearly showed that the unsoundness of mind was of such a character as did not deprive him’ of testamentary capacity according to the legal standard.
Nor is any reason or argument suggested, nor do we know of any, why the direction in the 8th instruction that: “It will be sufficient to avoid the will * * if * at the time it was executed the testator * * was a person of unsound mind” did not authorize and require the jury to set aside the will on account of such unsoundness, even though its degree did not destroy testamentary capacity or exert any influence on the testator as to the manner of disposing of the property or enter into the execution of the will.
These instructions were unqualified, and the full operation, force and effect of their language could not be cut down and limited by anybody but the court.
If the court had explained in these instructions, as was done in Lowder v. Lowder, 58 Ind. 588, and many other cases in this court like it, what was the legal signification of the phrase of unsound mind, then the instructions might have been correct. In the case last named the instruction, after stating that a person of unsound mind cannot make a will, proceeded to explain what was meant in contemplation of law by the phrase of unsound mind, stating that a lack of a certain degree of mental soundness or capacity was in contemplation of law unsoundness of mind. And on the other hand a certain degree of mental soundness or mental capacity was soundness of mind. The learned counsel for appellees finally come to the point and state their own interpretation of the instructions thus: “It is no doubt assumed in each of these instructions that, if the plaintiffs below had shown unsoundness of mind they would be entitled to recover, with*488out its being further shown that such unsoundness had anything to do with the manner of disposing of the property, or that it ‘did/ in other words, affect the character of the instrument. And this, we maintain, has been hitherto the settled law of the State. That the cases of Willett v. Porter, 42 Ind. 250, and Eggers v. Eggers, 57 Ind. 461, have been, heretofore, either modified or overruled on that particular point we submit with profound deference, is a misapprehension.”
Our interpretation does not seem so startling to counsel when they come to state their own interpretation of the instructions in question. The substance of theirs is, that unsoundness of mind avoids the will “without it being further shown that such uhsoundness had anything to do with the manner of disposing of the property, or in any manner affected the character of the testament.
That is precisely the interpretation placed on these instructions in the original opinion, and which was so startling to the learned counsel. But counsel are no less mistaken in their assumption as to what the settled law has hitherto been on the point under discussion. That point was not in any manner involved nor decided in Willett v. Porter, supra, as counsel mistakenly assert, and for that very conclusive reason that case has never been modified or overruled on that particular point, as the learned counsel correctly assert. But the other case, Eggers v. Eggers, supra, has been modified before our original opinion.
It was held by this court in Noble v. Enos, 19 Ind. 72, that all those excepted out of our statute of wills were precluded from making wills, and that necessarily precluded persons of unsound mind. It has, in effect, been held by this court in a long line of cases that the phrase of unsound mind, as used in our statute of wills, means a person of such degree of unsoundness *489of mind as incapacitates him from making a will according to the standard fixed by the adjudicated cases for testamentary capacity. Runkle v. Gates, 11 Ind. 95; Rush v. Megee, 36 Ind. 69 (73); Lowder v. Lowder, supra; Turner v. Cook, 86 Ind. 129 (137); Moore v. Allen, 5 Ind. 521; Herbert v. Berrier, 81 Ind. 1; Todd v. Fenton, 66 Ind. 25; Burkhart v. Gladish, 123 Ind. 337; Bower v. Bower, 142 Ind. 194; Wallis v. Luhring, 134 Ind. 447, and perhaps other cases. That standard as established by the foregoing cases is defined to be “one who has sufficient mind to know and understand the business in which he is engaged, who has sufficient mental capacity to enable him to know and understand the extent of his estate, the persons who would naturally be supposed to be the objects of his bounty, and who could keep these in his mind long enough to, and could, form a rational judgment in relation to them,” has testamentary capacity. That has been substantially the standard for testamentary capacity from the days of Lord Coke down to the present time. See the cases last above cited. 25 Am. and Eng. Ency. of Law, 970-973, and authorities there cited; Marquis of Winchester’s case, 6 Coke R. 23; 1 Redf. Wills, and authorities there cited.
The meaning thus assigned to the phrase of unsound mind by this court in construing our statute of wills was fully justified and founded in good reason. Because, according to Winslow, thé phrase of unsound mind was first used by Lord Eldon to designate a state of mind not exactly idiotic, and not lunatic with delusions, but a condition of intellect between the two extremes, and unfitting the person for the government of himself and affairs. Taylor Med. Jur. by Clarke Bell, 678. To the same effect is Den v. Johnson, 2 Southard (N. J.) 455, s. c. 8 Am. Dec. 610.
Thus we find the phrase of unsound mind had at*490tained an appropriate and technical meaning in the law, conveying the idea of testamentary capacity according to the legal standard for such capacity.
Another statute in force at the time prescribing the rule for construing statutes provides that: “Words and phrases shall be taken in their plain, ordinary or usual sense. But technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import.” R. S. 1894, section 240 (R. S. 1881, section 240).
To construe the statute so as to give the phrase of unsound mind its plain, or ordinary, or usual sense, as was done in the Eggers case, would bring its provisions into conflict. The word unsound controls the meaning of the whole phrase. And the plain, ordinary and usual sense of the word unsound, as defined by Webster, is: “Not sound; not whole; not solid; defective, infirm, diseased.” The same meaning we have given the words as used in the wills statute was in effect given to them by this court in construing the criminal code of 1852, providing that if any person of sound mind shall do the things therein specified should be deemed guilty of murder in the first degree. Stevens v. State, 31 Ind. 485; Herbert v. Berrier, supra.
The statute of wills authorizes a contest on the simple “allegation of the unsoundness of mind of the testator.” R. S. 1894, section 2766 (R. S. 1881, section 2596). Lange v. Dammier, 119 Ind. 567; Etter v. Armstrong, 46 Ind. 197. Now if the phrase “of unsound mind,” as used in the statute and authorized by the same statute to be used in a complaint to contest a will for mental unsoundness means testamentary incapacity, as we have shown it does, what is the issue tendered by such a complaint? Unquestionably it must be testamentary incapacity, which incapacity is *491charged in the complaint by virtue of the allegation of “unsoundness of mind.”
To determine, therefore, whether the instructions in question were right we have only to determine on whom rests the burden of that issue. Appellants’ counsel go into a lengthy discussion of that question, but it has been uniformly held by this court, in a long line of cases, that it rests on the plaintiff, and in most of the cases the reason upon which the rule is rested is that testamentary capacity is presumed. Moore v. Allen, supra; Rush v. Megee, supra; Turner v. Cook, supra; Herbert v. Berrier, supra; Dyer v. Dyer, 87 Ind. 13; Hite v. Sims, 94 Ind. 333,; Burkhart v. Gladish, supra; Wallace v. Luhring, supra; Pence v. Waugh, supra. It is true outside of this State there is a conflict in the decisions upon this question, but the overwhelming weight of authority elsewhere is in accord with our decisions, this conflict having its origin in a rule of probate practice requiring the executor to offer some evidence of the testator’s sanity on propounding the will, and to examine the subscribing witnesses on that point, whether his capacity was or was not impeached on that point. 25 Am. and Eng. Ency. of Law, 996-999, and authorities there cited. The meaning of the complaint charging unsoundness of mind being a charge of testamentary incapacity under the statute, and the burden of that charge being on the plaintiff, it follows, as an unavoidable conclusion that the plaintiff cannot stop short of proof of the testamentary incapacity he has alleged, and demand a verdict. The failure of the defendant to go forward and disprove the allegations of the complaint left unproven by the plaintiff cannot entitle the plaintiff to a verdict unless testamentary incapacity is presumed, and that, we have seen, is not presumed, but the direct contrary is presumed. But it may be asked *492why we may not ascribe the same legal technical meaning to the phrase “ of unsound mind” in the instructions in question as that in which the phrase is used in the statute and thus make the instructions correct. The reason is obvious. It is only the words used in a statute that are to be given their technical legal sense. Words used in instructions must be given their ordinary and usual meaning. Suppose the plaintiff proves that the testator was a monomaniac, that is, of unsound mind on a single subject, and that subject in no way connected with the will. May he recover, unless the defendant shall come forward and prove that it did not enter into the making of the will?- If so, the burden is cast upon the defendant without any cause, and the cases we have cited as to who has the burden are all wrong.
The burden can only be cast on the defendant where the plaintiff proves testamentary incapacity not of a transient character at some time prior to the time the will was executed. Under such circumstances all the authorities hold that the law presumes that such state of mind continues until the contrary is shown. Sheets v. Bray, 125 Ind. 33; Physio-Med. Col. of Indiana v. Wilkinson, 108 Ind. 314; Raymond v. Wathen, 142 Ind. 367; 1 Redf. Wills, p. 48, and authorities there cited. But that is so because the plaintiff has proven enough, which, taken with the presumption arising therefrom, are sufficient to establish his allegations of testamentary incapacity.
The rule as generally recognized is compactly and tersely stated by the Supreme Court of Alabama thus: “Charges 5,12,14 ánd 15 given * * * to the effect * * * that testamentary incapacity is an incapacity existing contemporaneously with the execution of the * * will; that the burden of proof as to such incapacity is upon the contestants, the original pre*493sumption of sanity and capacity being always indulged, and this burden can only be discharged or shifted by showing prior habitual insanity, or actual insanity, or * * incapacity at the date of the instrument, are correct expositions of the law.” Eastis v. Montgomery, 95 Ala. 486, s. c. 36 Am. St. Rep., at page 227. See also Physio-Med. Col. of Indiana v. Wilkinson, supra; Sheets v. Bray, supra.
The foregoing decision from which we have quoted is not contrary to our own case of Harrison v. Bishop, 131 Ind. 161, but rather is in line with it in so far as the facts in the two cases are parallel. In the latter case this court held that: “The adjudication of mental unsoundness in proceedings for the appointment of a guardian for a person, while it conclusively establishes the fact of his inability to manage his estate, it does not necessarily establish the existence of such unsoundness as would incapacitate him from making a valid will. It is, however, prima facie evidence of such want of mental power, and * * * the burden is upon those who seek to uphold it to show by * * * * evidence that at the time it was executed the maker had the requisite degree of mental capacity.”
That holding is that such adjudication conclusively establishes his inability to manage his estate, but does not necessarily establish testamentary incapacity, yet" that it was prima facie evidence of such incapacity and threw the burden on those upholding the will. That is exactly what was held in the Alabama case. The burden there was discharged, or shifted, on showing incapacity prior to the date of the will. In our case of Harrison v. Bishop, supra, the will was executed while the testator was under guardianship under a decree of the court for unsoundness of mind'. Such unsoundness as shown by that decree was prior, *494and the holding is that it is prima facie evidence of testamentary incapacity prior to the execution of the will. Prima facie evidence means, says Webster, “evidence which is sufficient to establish the fact unless rebutted.” That puts the case exactly in line with the Alabama case. Both of these cases are in harmony with the uniform current of authority everywhere. 1 Redf. Wills, 48, 113 and 114, and authorities there cited; Wharton & Stile Med. Jur. sections 62 and 63, and authorities there cited; 25 Am. and Eng. Ency. of Law, 978-979, and authorities there cited. The case of Kentworthy v. Williams, 5 Ind. 375, is overruled in so far as it conflicts with this decision as to the burden of proof. The dictum in seeming eonfiictwith this opinion in Durham v. Smith, 120 Ind. 463, in the lower half of page 465, is disapproved.
Filed April 3, 1896.Counsel now for the first time urge that instructions 5 and 17, given by the court, if construed along with the faulty instructions above, would have so qualified them as to make the whole correct or cure any error in them. It is too late to present a question for decision for the first time in a petition for a rehearing.
No such question was presented on the original hearing and, therefore, cannot, under the well settled practice in this court, be considered or decided now. The other grounds urged relate to minor points in our original decision and consist only of a re-argument of the points then decided. The argument has not convinced us that our decision of any of them was wrong.
Petition overruled.
Howard, J., dissents.