— Appellees brought this action to contest the validity of the alleged last will of William A. Tate, who died on February 8, 1914, leaving appellees and appellant Fannie Kirkendall as his only children, and appellant Gilly A. Tate, his widow. The will in contest is dated September 19, 1895, and 'its validity is assailed on the statutory ground of “unsoundness of mind.” §1, Acts 1911 p. 325, §3154 Burns 1914.
A trial by a jury resulted in a verdict in favor of appellees, and over appellants’ motion for a new trial the court adjudged the will null and void. In this court the only error assigned is the overruling of the motion for a new trial. The reasons in support of the motion most insistently urged are that the verdict is not sustained by sufficient evidence and is contrary to law.
1. The allegation of “unsoundness of mind” in the complaint challenged the testamentary capacity of the testator to make a will. Blough v. Parry (1896), 144 Ind. 463, 490, 40 N. E. 70, 43 N. E. 560; Teegarden v. Lewis (1895), 145 Ind. 98, 40 N. E. 1047, 44 N. E. 9; Wiley v. Gordon (1913), 181 Ind. 252, 104 N. E. 500.
2. *4253. *424The general verdict in favor of appellees amounted to a finding that William A. Tate, on September 19, 1895, did not have testamentary capacity. Warren Construction Co. v. Powell (1909), 173 Ind. 207, 212, 89 N. E. 857; Indianapolis Traction, etc., Co. v. Klentschy (1906), 167 Ind. 598, 79 *425N. E. 908, 10 Ann. Cas. 869. At this point, in view of the earnest contention of counsel for appellant, we are only concerned in being satisfied that there is some evidence to support the verdict. In this class of cases the facts are for the jury, and a question of law does not arise on the evidence to affect the verdict, unless there is no evidence to sustain an element without which the verdict cannot stand. Republic Iron, etc., Co. v. Berkes (1903), 162 Ind. 517, 70 N. E. 815; Thompson v. Beatty (1908), 171 Ind. 579, 86 N. E. 961.
4. A careful review of a great number of cases reported in this, as well as in other jurisdictions, compels the conclusion that nearly every will contest case has its distinctive and often influential features, bearing upon the ultimate question of testamentary capacity, and for that reason each case, to a great extent, is controlled by its own particular facts and circumstances. Usually the difficulty lies in being able to mark the border between reason and insanity,, or, in other words, to fix the point where capacity ends and incapacity begins. As said in Matter of Carver’s Estate (1893), 3 Misc. Rep. 567, 23 N. Y. Supp. 753: “The law does not, of course, attempt to define any particular grade of mental ability or acumen necessary to qualify one to make a will. Wills are made by all classes of people in every station of life and under almost every conceivable set of circumstances, by persons of weak intellect and by those of magnificent ability; sometimes in the midst of life and business prosperity, at other times in extremis or while overwhelmed with-adversity; hence it is impossible to formulate any precise rules applicable to any particular case.” In Teegarden v. Lewis, supra, at page 101, this court said: “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 *426those 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 ?”
In the case at bar it appears that the testator had four living children by a deceased wife, and one child by his surviving wife. His second wife, Gilly A. Tate, appellant herein, at the time of their marriage, had four children, all now dead except one, and a one-third interest in 160 acres of land, and some other property. For a time after their marriage they lived on that farm, and then moved to a rented farm, and then to an eighty-acre tract, which he bought, and later to a home in Kokomo, all of' which he owned at the time of his' death. The Tate children lived at home and worked on the farm as members of the family until they were past twenty-one years of age.
4. 5. 6. Again referring to the .fixed standard of testamentary capacity for will-making purposes, the testator must have been mentally capable of comprehending and understanding his act and all the conditions that would enter into its rational performance, as well as understanding his choice between one disposition and another, and must have had capacity not only of comprehending the extent of his property and the .nature of the claims of those whom he excluded from participating in his property, but of deliberately forming an intelligent purpose of excluding them. True, testator may have been mentally unsound. He may have been a person possessed of delusions or monomania, but unless it appears that these or such unsoundness in some manner entered into the making of the will, or that his mental capacity was below the standard fixed by the adjudicated *427cases, an action to contest on the ground of unsoundness of mind must fail. Wiley v. Gordon, supra; Burkhart v. Gladish (1890), 123 Ind. 337, 24 N. E. 118; Humphrey v. Mottier (1911), 48 Ind. App. 469, 96 N. E. 38.
In the case at bar appellants insist that there is no evidence from which the jury could fairly infer that the testator at the time the will was made was of unsound mind within the meaning of the statute. The record shows that sixteen nonexpert witnesses, after testifying to various conversations, 'business transactions, and describing his appearance, stated that in their opinion William A. Tate, on the date the will was made, was a person of unsound mind. Among the facts — but by no means all — upon which they based their opinion we find the following statements: A few years before the will in contest was executed the testator was exceedingly ill, and thereafter never regained his strength or former appearance. At the time of the execution of the will and afterwards he was not able to work; complained of not being able to sleep; was nervous; would cry without any reason apparent to those about him; had a sad look in his eyes; at times would sit for a considerable time and refuse to talk or answer questions, without any known cause. His talk was disconnected, and he would repeat conversations at short intervals apart to the same party; was emotional, irritable, easily angered; took his daughter to Kokomo and went home without her, and had to be reminded of the fact before remembering that she had gone to town with him; claimed a turkey and hog said not to be his; was three and one-half hours with a scrivener in the preparation of his will, and at no time during its preparation did he mention his daughter Emily or his son Joel. The scrivener who prepared his will was not certain whether he mentioned his sons John and Amos. It *428also not only appears in evidence that there was no estrangement between the testator and any of his children, but that from his conversations both before and after making his will he seemed to be very appreciative of them. He frequently spoke of having made his will, talked about it, and pretended to state its contents, but his statements in- that respect were not in keeping with the wording of the instrument. The will itself, after the introductory clause, consists of five items, ranging from nineteen to forty-five words each. The first item of the will gives all of- his property to his wife; the second item, to his wife to “be used for her own especial benefit so long as she shall live”; the third item permits the sale of all personal property “remaining at my decease and not taken by my wife”; the fourth appoints his executor; the fifth is the preamble to the signature.
The will was introduced in evidence, and the scrivener testified that he had prepared it from the .information received from the testator. The will itself bears evidence that at first he wanted his wife to have all his property, and then only for life; and again, that his personal property should be sold, except that taken by the widow. The fact that the scrivener was three and one-half hours-in determining and preparing the char-, acter of the will desired, together with the finished instrument, was before the jury for inference, with other evidence, however, bearing upon the question at issue. Breadheft v. Cleveland (1915), 184 Ind. 130, 108 N. E. 5, 110 N. E. 662.
7. *4298. *428Appellants insist that the opinion of the witnesses could have no greater weight than the facts upon which it was based. That statement is correct, and the jury was so instructed, and we may add that the evidence to support the verdict is weak, but we cannot say as a matter of law that there is
*429no evidence or inferences to be drawn therefrom to sustain the verdict. When the question turns, on the weight of the evidence, our judgment must give way to that of the jury. Danville Trust Co. v. Barnett (1915), 184 Ind. 696, 111 N. E. 429; Bever v. Spangler (1895), 93 Iowa 576, 61 N. W. 1072.
9. This court has held that we are not at liberty to wholly reject opinion evidence as to the mental condition of the testator at the time of making his will, for the reason that the witness may draw conclusions from the appearance and acts of a person which cannot be fully and accurately described in words but which are nevertheless a reliable basis for his opinion. Barr v. Sumner (1915), 183 Ind. 402, 411, 107 N. E. 675, 109 N. E. 193. As said in Connecticut Mutual Life Ins. Co. v. Lathrop (1884), 111 U. S. 612, 619, 4 Sup. Ct. 533, 28 L. Ed. 536: “The extent to which such opinions should influence or control the judgment of the court or jury must depend upon the intelligence of the witness, as manifested by his examination, and upon his opportunities to ascertain all the circumstances that should properly affect any conclusion reached.”
3. 8. After full consideration of the record in this case, we are of the opinion that the question on the evidence of testamentary capacity of William A. Tate, at the time he signed the will in controversy, was for the jury and not a question of law for the court. With these observations it will be sufficient to say that we are not authorized to reverse the judgment on the ground that there is no evidence to support the verdict, or that the verdict is contrary to law.
*4306. 10. *429Appellants claim that instruction No. 8 given to the jury at the request of appellees was erroneous for the reason that it authorized a finding in their favor, *430if, on the date of the execution of the will, William A. Tate was a person of unsound mind. It is true that any unsoundness of mind may not warrant the setting aside of a will, unless such unsoundness entered into, or affected it. Standing alone, we do not approve this instruction, for the reason that it might have misled the jury, but in connection with other instructions wherein unsoundness of mind was fully defined, it was harmless. Burkhart v. Gladish, supra.
11. The action of the court in refusing to give to the jury certain instructions tendered by appellants is also properly presented by the motion for a new trial. The rulings of the trial court in this regard must be sustained. Thirteen of the instructions tendered by appellants were given. These, with others, clearly stated the law as to every feature of the case in a manner not to be' misunderstood by any ordinary person.
We are convinced that the specifications presented for our consideration in the motion for a new trial do not show available error, and the judgment is therefore affirmed.