— The question for decision in this case arises upon a special verdict, and involves the right of the appellants to retain, as against the appellee, moneys held by them as gifts from the appellee’s intestate.
It was found that the appellants, jointly, had received $4,774.00, and that said John E. Teegarden had received to his separate use $4,093.00. In each instance, where it is found that the appellants received money from the intestate, it is also found that the intestate “was of unsound mind.” For the appellants, it is insisted that the special verdict, in finding that the intestate “was of unsound mind,” stated a conclusion of law, or of mixed law and facts, and failed to state the ultimate facts, upon which the court could apply the proper legal conclusions and render judg*100ment. For the appellee, it is contended that the finding quoted is a finding of the ultimate facts only. There is little, if any, room to doubt that if the intestate did not possess mental capacity sufficient either to execute a valid will or a valid contract, the gifts were voidable and the appellants must be held to have received the moneys to the use and benefit of the intestate, and that it may be recovered by the appellee. Jenners v. Howard, Admr., 6 Blackf. 240; McQueen v. Bank, 2 Ind. 413; Ferguson v. Dunn’s Admr., 28 Ind. 58; Musselman v. Cravens, 47 Ind. 1; McFadden v. Wilson, 96 Ind. 253; Moore v. Shields, 121 Ind. 267; Bullard v. Hascall, 25 Mich. 132; Mason v. Waite, 17 Mass. 560.
Some authorities hold that the test of mental capacity to be applied to a completed gift is the same as that to be applied to any other contract, and not that of testamentary capacity. 2 Schouler Per. Prop., sections 59, 141; 8 Am. and Eng. Ency. of Law, 1309. The reason given for this rule is that there are necessarily two parties, and the transaction involves the assent of two minds, while in the execution of a will there is but one active party, with opportunity for reflection apart from the beneficiary and free from his influences. A gift inter vivos differs from a bestowal by will, only as it does from gifts causa mortis, it is not made in contemplation of or to be effective upon the death of the donor. If inducements or influences, from the donee, to make the gift, should be considered in determining the test of mental capacity, we are unable to discern why the same inducements' and influences might not obtain in the execution of a will as of a gift. Either is like the other, in that the donor receives no recompense or equivalent for that which he gives. We do not deny that when completed, the effects of the gift are the same as if the object had been *101parted with by contract. Yet the effect is no less so when possession is reached through the provisions of a will. Why the standard of intellect in either should be higher than the other, has not been demonstrated. With deference to the authorities cited, it is our judgment that the capacity to execute a will is the perfect requisite for the execution of a gift inter vivos.
However, we may test the present verdict by either rule and the same results must be reached, as we view the question. The mental requisites for the support of ordinary contracts have not been so frequently or so clearly defined as those for the execution of testamentary provisions, yet there is an undoubted distinction which has been recognized by the holdings in this State. In ordinary contracts the test is, were the mental faculties so deficient or impaired that there was not sufficient power to comprehend the subject of the contract, its nature and its probable consequences, and to act with discretion in relation thereto, or with relation to the ordinary affairs of life. Somers v. Pumphrey, 24 Ind. 231; Darnell v. Rowland, 30 Ind. 342; Dennett v. Dennett, Ewell’s Lead. Cas. 547 N. 558, and Clark Cont. p. 263.
Testamentary capacity is determined upon the inquiry: Did the testator possess sufficient strength of mind and memory to know the extent and value of his property, the number and names of those who were the natural objects of his bounty, their deserts with reference to their conduct and treatment towards him, their capacity and necessity, and did he have sufficient active memory to retain all these facts in mind long enough to have his will prepared and executed? Burkhart v. Gladdish, 123 Ind. 337; Harrison v. Bishop, 131 Ind. 161; Fiscus v. Turner, 125 Ind. 46; Lowder v. Lowder, 58 Ind. 538.
*102We do not so much seek to ascertain the existing distinction and to define it, as to establish the conclusion that mental capacity is susceptible of ascertainment and expression as a fact, unembarrassed by legal conclusions. Whatever the test, we think it clear that its existence, or non-existence, may be found and stated as a question of fact. That special verdicts should find the facts, and should not state conclusions of law, is not doubted or questioned, but the contention here, as we have said, is as to whether the finding that the intestate “was of unsound mind” is a statement of fact, or involves a conclusion of law, and invades the province of the court. Our statute, R. S. 1894, section 2726 (R. S. 1881, section 2556), withholds from persons of unsound mind the power to make a testamentary disposition of property, while it is provided by section 2724, R. S. 1894 (section 2554, R. S. 1881), that “Every contract, sale or conveyance, of any person while of unsound mind, shall be void.” By judicial construction, the latter section has been held to mean that such contracts shall be void, if executed by those adjudged to be of unsound mind, and voidable only, if executed by those who are unsound but not so adjudged. Boyer v. Berryman, 123 Ind. 451; Copenrath v. Kienby, 83 Ind. 18; Fay v. Burditt, 81 Ind. 433; McClain, Gdn., v. Davis, 77 Ind. 419; Freed v. Brown, 55 Ind. 310; Nichol v. Thomas, 53 Ind. 42; Somers v. Pumphrey, supra; Musselman v. Cravens, supra; Redden v. Baker, Gdn., 86 Ind. 191; Davis v. Scott, 34 Ind. 67.
By section 2714, R. S. 1894 (section 2544, R. S. 1881), the phrase “unsound mind,” it is declared, “shall be taken to mean any idiot, non compos, lunatic, monomaniac, or distracted person.” Yet, it has been settled that one who is of unsound mind, suffering from delusions or being a monomaniac, may make a valid *103contract or a will, if such malady do not enter into or control, to some extent, the execution thereof. Wray v. Wray, 32 Ind. 126; Durham v. Smith, 120 Ind. 463; Burkhart v. Gladdish, supra; Harrison v. Bishop, supra; Lowder v. Lowder, supra; Kenworthy v. Williams, 5 Ind. 375; Clark Cont., p. 266.
In Wray v. Wray, supra, the lower court instructed the jury that “it is not necessary to prove the grantor totally insane, that is, of unsound mind as to all subjects; a man may be sane upon some subjects, and of unsound mind upon others. He may be sane upon all other subjects, and yet afflicted with a delusion upon one which would amount to insanity as to that one.” This court said of that instruction: “One who seeks to set aside a contract on the ground of insanity must show that it was the offspring of mental disease,” and held the instruction to have been correct.
In Durham v. Smith, supra, an instruction was as follows: “Furthermore, I instruct you that a person who is of unsound mind is incapable of making a valid will, and if there is unsoundness of mind, it is not necessary for the contestant to show that such unsoundness had anything to do with the manner of disposing of the property. In such a case the will is invalid, whether it is shown that the nnsoundness of mind had, or had not, affected the character of the testament.” The instruction was condemned,-upon the last proposition therein stated, and it was held that the words “unsound mind,” used in the instruction, were used “in their broadest sense, including every species of defectiveness and impairment of the mind.” It was said, further, of the instruction: “In short, this charge recognizes but two conditions of the human mind, one sound and capable of doing all acts, and the other unsound and incapable of doing any act; that a person is responsible for all his acts, or not re*104sponsible for any of Ms acts. This is an erroneous theory of the law. Trumbull v. Gibbons, 51 Am. Dec. 253; Clark v. Fisher, 19 Am. Dec. 402; Jackson v. King, 15 Am. Dec. 354, and note. 363.”
Some of the cases speak of that defective or impaired condition of mind, which will not avoid a will or contract, as partial unsoundness of mind. Such partial unsoundness of mind, as recognized by the law and as stated in the cases we have cited, if it enter into and control the execution of the will or contract so that the will or the contract may be said to be the offspring of such imperfect or impaired condition, will be held, under the statutes quoted above, to invalidate such will or contract. In other words, partial insanity is an unsoundness of mind which is within the statutory declaration, if it controls the execution of the contract against the rational will and judgment of the party. If it do not so control, while nevertheless the condition is that of unsound mind, the instrument or act is valid. We are lead, therefore, to the conclusion that the jury might, under the evidence, have returned the finding they did, and with good faith and accurate judgment have found the intestate to have possessed testamentary capacity, or the ability to make a valid contract upon the tests we have stated. Such a conclusion is made possible by the rule that unsoundness of mind may exist, and yet not affect the testament or the contract. If we should consider the question with no other lights before us, it would be seen that such a verdict leaves the court, whose exclusive office it is to pronounce judgment, in darkness as to whether the unsoundness of mind found, is that which enforces the legal conclusion that the transaction in question is valid or voidable. We have no doubt, however, that the ultimate fact is not stated in the verdict. If it had been returned, that the *105intestate, at the times in question, was so impaired in mind that he could not act with discretion in relation to the ordinary affairs of life; or that from such impairment, he had not the power to comprehend the subject of the contract, its nature and probable consequences, and to act with discretion in relation thereto; or that he was unable to know the extent and value of his property, the number and names of those who were the natural objects of his bounty, their deserts with reference to their conduct and treatment towards him, their capacity and necessity, and had not sufficient active memory to retain such facts in mind long enough to have a will prepared and executed, we would then have a statement of the ultimate facts. Upon such a finding, the courts could apply the law and direct a judgment.
That the facts indicated are such as should be returned, is we think, very clearly illustrated by applying the rule necessarily adopted by the trial court in its charge to the jury, in a case where a general verdict is to be returned. There the court would group one or more such sets of facts and direct the jury that, in the event of the evidence establishing such facts, it would- be their duty to return a verdict in favor of the party asserting the unsoundness of mind. That such facts are not merely evidentiary, is made plain by rule that the court would not be permittéd to apply the evidence for the jury, in delivering instructions. It is made plain, from the further rule, that a witness could not be permitted to state, as evidence, any one of the facts so suggested. The witness might give instances from his observations of the person whose mind was in question, and he might be permitted to state his opinion, as a.n expert or as a non-expert, upon the soundness or unsoundness of such mind, but, in that event, the jury would be the judge *106of the degree of unsoundness. Hamrick v. State, ex rel., 134 Ind. 324. If a general verdict were pronounced, it would be upon finding the degree of unsoundness and applying the law as charged, concerning the degree essential to the validity of the instrument. If a special verdict were required, the degree of unsoundness only would be returned, and the court, would apply the rules, otherwise charged to the jury, and determine whether such degree of unsoundness was within the measure of the law, which required the contract or will to be set aside.
In the case of Perkins v. Hayward, 124 Ind. 445, was laid down a rule for determining when the return is a conclusion or the statement of an ultimate fact. When it is not possible to do more than state the conclusion, without violating the rule forbidding the statement of evidentiary facts, such conclusion may be stated as of necessity. When there is no standard by which it may be determined, as a pure matter of law, what facts will establish the issue, the inferential fact or conclusion is necessary to come from the jury.
In Todd v. Fenton, 66 Ind. 25, a will was contested upon the issues of unsoundness of mind, undue execution, duress, fraud, and undue influence. The court refused interrogatories asked by the defendants and substituted the following, the answers to which we copy:
“Was Elizabeth Todd of sound mind, at the date of the execution of the paper writing in contest, namely, on the 19th day of July, 1869?
“Ans. She was of unsound mind.
“2. Was the paper writing duly executed?
“Ans. It was duly executed.
“3. Was Elizabeth Todd under duress, at the time she signed the paper writing?
“Ans. She was not.
*107“4. Was said paper writing procured to be made by said Elizabeth Todd, by fraud?
“Ans. It was.
“5. Was the paper writing procured to be made by Elizabeth Todd, by undue influence? If so, by whom?
“Ans. It was; by Joseph Todd and I. N. Todd.”
The court said of the interrogatories: “They were no more particular than if the'court had directed the jury to say whether they found for the plaintiff or the defendants, on each of the several grounds of contest * * *. To state the matter a little differently, the effect of the interrogatories was simply to require the jury to specify whether or not each of the several grounds of contest was made out.” It was held that such interrogatories and answers were not findings, “upon particular questions of fact to be stated in writing,” as the statute required. One of the rejected interrogatories, which this court held should have been given, was as follows: “At the time said Elizabeth Todd signed said will, did she have mind and memory sufficient to understand the ordinary affairs of life; and to act with discretion therein? Did she know her children and grandchildren, and have a general knowledge of the estate of which she was possessed?” This court said of the interrogatory: “It was directed to matters of fact concerning which evidence had been given, and not to matters of evidence,” and it was held that such facts were the proper subjects of inquiry. So we may say in the present case, that to find that the intestate was of unsound mind is not only, in effect, but a general verdict, but deprives the court of its prerogative and denies its right to pass upon the legal sufficiency of the facts. It has been held, in numerous cases, that the quantum of mental capacity requisite to the performance of a valid act *108is a mixed question of law and fact. Farrell’s Admr. v. Brennan’s Admx., 32 Mo. 328; Runyan v. Price, 15 Ohio St. 1; DeWitt v. Barley, 17 N. Y. 340; Gibson v. Gibson, 9 Yerg. 329; Henerick v. State, etc., supra; Buswell Insanity, 174.
Without decisions this question is so manifest as- to admit of no doubt. It is therefore not for the jury to return the legal conclusion in a special verdict, and it has performed its whole duty in returning the facts whereon the court may pronounce the law.
That a complaint may be sufficient which alleges unsoundness of mind generally, is not at variance with our conclusion, has been held in cases of negligence, conversion, former adjudication, etc. Conner v. Citizens’ etc., R. W. Co., 105 Ind. 62; Pittsburg, etc., R. W. Co. v. Spencer, 98 Ind. 186; Louisville, etc., R. W. Co. v. Balch, 105 Ind. 93; Nickless v. Pearson, 126 Ind. 477.
There are other questions in the record as to the burden of proof and the form of the judgment, but these will probably not again arise.
In our judgment, the ends of justice will be best subserved by a new trial of the issue between the parties, rather than by ordering judgment on the special verdict. For the error above found, the judgment of the circuit court is reversed, with instructions to grant the appellants’ motion for a venire de novo.
McCabe, J., did not participate in this case.