On Petition for.Rehearing.
Myers, C. J.— On petition for a rehearing appellants have favored us with an earnest and able brief to sustain their views on the questions involved in this appeal. First, our attention is called to matters sought to be presented but not considered in the opinion; secondly, that other questions were erroneously decided. We did omit to notice some of the alleged errors argued by appellant in the belief that none of them would warrant a reversal of the judgment; and, furthermore, the questions decided seemed to be all that were really de*431batable. Moreover, the unnoticed questions on the evidence, strictly speaking, were not properly presented.
The learned counsel for appellant know that it has been affirmed and reaffirmed many times by this court,' and the Appellate Court, that Rule 22 requires briefs to be so prepared that each member of the court majj pass upon each question relied on without looking to the record. Chicago, etc., R. Co. v. Wysor Land Co. (1904), 163 Ind. 288, 294, 69 N. E. 546; Price v. Swartz (1911), 49 Ind. App. 627, 97 N. E. 938; Chicago, etc., R. Co. v. Newkirk (1911), 48 Ind. App. 349, 93 N. E. 860; Repp v. Indianapolis, etc., Traction Co. (1915), 184 Ind. 671, 111 N. E. 614. For instance, appellants complain of the ruling of the trial court in admitting certain evidence, but in their brief they fail to set out the objections urged to the trial court, and seem to be content with referring this court to the page and line of the record containing more than 1,400 pages, where the objections so made may be found. Without the record it would be impossible to know the character of the objections, or the reasons assigned for excluding or admitting certain evidence. But in view of the zealous insistence of counsel and on the theory that counsel have made a good-faith attempt to comply with the rules, we have taken the time to examine the record in the particular instances and will pass on these questions.
Appellants submitted twenty-one interrogatories and appellee nineteen, all of which were answered by the jury. It is conceded that all answers harmonize with the general verdict. The point is made that the interrogatories submitted by appellees “did not ask the jury to find specially upon particular questions of fact, but called for mere matters of evidence.” Appellants then insist that by this means the jury was misdirected and misled as to the issue it was called upon to try, and also *432influenced, controlled and guided to return an erroneous verdict.
4. 12. As circumstances bearing upon a testator’s mental condition or testamentary capacity at the time of making his will, evidence is admissible tending to show: the amount, situation, condition and value of his property; the number and names of his children or persons who are the objects of his bounty; the treatment of such persons toward the testator and his treatment of them and the relations existing between them; that he could keep in mind such facts, and the manner in which — and to whom — his property was to be distributed; that he had capacity to comprehend the nature of the business in which he was engaged. Ditton v. Hart (1910), 175 Ind. 181, 93 N. E. 961; Burkhart v. Gladish (1890), 123 Ind. 337, 24 N. E. 118; Staser v. Hogan (1889), 120 Ind. 207, 216, 21 N. E. 911, 22 N. E. 990; Kenworthy v. Williams (1854), 5 Ind. 375; Brelsford v. Aldridge (1908), 42 Ind. App. 106, 84 N. E. 1090; Dunaway v. Smoot (1902), 23 Ky. L. Rep. 2289, 67 S. W. 62; Howard v. Coke (1847), 46 Ky. (B. Mon.) 655. Thus it will be seen that the field of investigation in such cases takes in a wide range, largely within the discretion of the trial court. Remsen, Preparation and Contest of Wills 380; Barbour v. Moore (1894), 4 App. D. C. 535; Barbour v. Moore (1897), 10 App. D. C. 30, 45; In re Mason’s Will (1908), 82 Vt. 160, 72 Atl. 329. Consequently the bounds of interrogatories are only limited to findings less than an issue, and of greater dignity than evidence. Our Code §572 Burns 1914, Acts 1897 p. 198, provides that the jury may be required to “find specially upon particular questions of- fact,” thereby intending such findings shall be less than an issue, yet material and substantive facts. Manning v. Gasharie (1866), 27 Ind. 399, 409; Gates v. Scott (1890), 123 *433Ind. 459, 24 N. E. 257; O. M. Cockrum Co. v. Klein (1905), 165 Ind. 627, 74 N. E. 529; Ft. Wayne Cooperage Co. v. Page (1908), 170 Ind. 585, 84 N. E. 145, 23 L. R. A. (N. S.) 946.
13. 14. Looking to the interrogatories before us, Nos. 9, 10 and 11, calling for the specific declarations of William A. Tate made before and after the time of making his will, were clearly improper, for the reason that they call for matters of evidence. No. 16, as to whether William A. Tate appreciated and understood the legal effect of the paper purporting to be his will, was not a proper interrogatory. Ditton v. Hart, supra, 186.
15. The remaining interrogatories, fifteen in number— referring to William A. Tate’s owning eighty acres of land and some personal property on the date he made his will, September 19, 1895, and to his being the father of appellees, children by his first marriage, of whom the three sons remained at home on said land and helped to cultivate and improve it until they were twenty-one years of age; to the value of -the land at the time of the trial; to the time, three and one-half hours, required in the preparation of the will, and during that time he made no mention of any of his children, nor spoke of their deserts or treatment toward him; to these children as being at all times considerate and respectful of their father, who had expressed great love and affection for them before September 19, 1895, and thereafter until the time of his death — were not all objectionable. Ten of these interrogatories were properly submitted, while the others cannot be approved, yet when all are considered in connection with those asked by appellants and the answers thereto, which showed beyond question testamentary incapacity, we must conclude that appellants’ contention cannot be *434sustained. The interrogatories which we do not approve did not affect the others to the extent of making them all vicious, nor were they, within themselves, of that importance as to influence the jury to an erroneous verdict.
16. *43516. *434We shall next consider the rulings of the court on the admission of testimony. A non-expert witness first testified to an acquaintance with the testator covering the last six or seven years of the latter’s life, and to having nursed him while ill in the fall of 1913 for about six weeks, and again for about that length of time immediately before his death. He was then asked to detail various conversations had between them. During the course of his examination along this line, over appellant’s objection on the ground that the question called for declarations of the testator which were not relevant to the issue and were too remote, -and after counsel for appellees stated that their purpose was to qualify the witness for an opinion as to the mental condition of the testator, he was allowed to answer that during one of these conversations, in 1913, the testator said that his stepson was “a snake in the grass,” and by some trick or turn was after his children’s property. In another conversation Tate said that he was thankful that he had made his will so that his children would get all that belonged to him; in another, that he had acquiesced in Mrs. Tate’s children having all her property, and he wanted his property to go to his children. These statements were voluntarily made in the course of various conservations and to one not interested in the testator’s estate. In this connection our attention has been called to Runkle v. Gates (1858), 11 Ind. 95; Vance v. Vance (1881), 74 Ind. 370; and McDonald v. McDonald (1895), 142 Ind. 55, 41 N. E. 336, where it is held that statements of a testator are not admissible in actions of contest upon the ground of fraud or undue in*435fluence. The basis for this ruling does not obtain where the contest is upon the ground of unsoundness of mind, for the reason that in the former class of cases the declarations or statements are used as direct proof of the fact of fraud or undue influence, or as proof that the fact asserted did occur, and are inhibited by the hearsay rule, unless admitted as part of the res gestae; while the latter class of cases involves a consideration of many circumstances from which the ultimate fact may be inferred. Consequently, on the ground of necessity, the courts have recognized and adopted an exception to the hearsay and remote rule, which permits all utterances and conduct of the testator to be brought to the attention of the court or jury trying the issue, not for the purpose of proving the truth of the particular declarations or statements, but, from them,' the condition of the testator’s mind at various times for use as a basis for inferring his condition at the time the instrument was executed. Under the exception noted and for the purpose stated, the conduct of the testator may be shown before and after the testamentary act. Bower v. Bower (1895), 142 Ind. 194, 41 N. E. 523; In re Estate of Wharton (1907), 132 Iowa, 714, 109 N. W. 492; Watson v. Anderson (1847), 11 Ala. 43; Spencer v. Terry’s Estate (1903), 133 Mich. 39, 94 N. W. 372; 1 Alexander, Wills §361; Haines v. Hayden (1893), 95 Mich. 332, 347, 54 N. W. 911, 35 Am. St. 566. One reason for this rule, as said in the case last cited, is that “it very rarely occurs that this state of mind can be shown by declarations -made at the very moment of the execution of the will.” But the exact time which may be covered by either of these periods is largely within the discretion of the trial court, or as sometimes said “that issue must, of necessity, evoke an inquiry of the broadest range.” Bower v. Bower, supra, 199; 1 Alexander, Wills §361; Moore v. McDon*436ald (1887), 68 Md. 321, 339, 12 Atl. 117; Johnston v. Johnston (1912), 174 Ala. 220, 226, 57 South. 450; In re Estate of Lefevre (1894), 102 Mich. 568, 61 N. W. 3; 1 Wigmore, Evidence §233.
17. In cases like this it is now well settled that a nonexpert witness may express his opinion as to the mental condition of the testator after detailing to the jury his personal knowledge of the testator, which may include the latter’s gestures, his appearance and conduct, his memory, his deportment, his conversations and declarations, his business dealings, and any other act of commission or omission considered by him in forming an opinion of the testator’s mental condition. Swygart v. Willard (1905), 166 Ind. 25, 76 N. E. 755; Bower v. Bower, supra; McCoy v. Jordan (1904), 184 Mass. 575, 69 N. E. 358; Montana R. Co. v. Warren (1890), 137 U. S. 348, 353, 11 Sup. Ct. 96, 34 L. Ed. 681; 1 Wigmore, Evidence §228. The court or jury is thereby apprised of the reasons relied on by the witness to sustain his opinion, which go to the jury for whatever they are worth. The probative force of such narrated circumstances' and opinion must necessarily depend upon how inseparably connected they are with the precise time of the making of the will. The application of such evidence and its only purpose should be carefully placed before the jury by a proper instruction, as was done in this case. Returning to the declarations to which objections were made, it would seem to us that when they are considered in connection with the other evidence forming a chain back to the hour of the testamentary act, together with the announced purpose of counsel when introducing it, and the instructions given, we cannot say the trial court abused its discretion in the particulars mentioned. 3 Chamberlayne, Mod. Law of Evidence §1918. Olmstead v. Webb (1895), 5 App. D. C. 38, 52.
*43718. Complaint is made on the admission of certain evidence tending to prove the valúe of testator’s property at the time of his death, and in permitting appellees to introduce in evidence the inventory of the personal estate of the testator made by his executor. This inventory was made up of various items of personal property totaling in value $485. The value of testator’s property at the time of his death was not in issue, and could have no bearing or relevancy to the question at issue. The evidence was therefore on a collateral matter. The inventory was nothing more than an ex parte statement, and within the hearsay rule. Barricklow v. Stewart (1904), 163 Ind. 438, 72 N. E. 128. This evidence having been admitted, the question is, Was it harmful?
19. There is no evidence of property value on the date the will was executed. For aught that appears from the evidence the value of his property on the date of the will may have been as much or more than it was at the time of testator’s death. However, it does appear, incidentally, that he owned an eighty-acre tract of land and some personal property. At the time of his death he owned the same land, which was worth $200 an acre, and in addition a house and lot in Kokomo, of the approximate value of $2,000, and the personalty heretofore mentioned. These valuations, thrown into the case as they were, could not have influenced the jury one way or the other upon the single issue, clearly defined by the instructions. Our attention has been called to'the case of Savage v. Bowen (1905), 103 Va. 540, 49 S. E. 668. The issue in that case was whether the will in controversy was, in fact, the last will of the testator. The court held that proof of enhanced value of the property was irrelevant, and calculated to divert the minds of the jury from the real issue, yet the case was not reversed for that error alone. *438The instructions, when taken together, proceeded upon a theory not warranted by the evidence, and were therefore held to be erroneous. In this case we must assume that the jury was composed of men of average intelligence, and more or less acquainted with the general condition of the country and its effect upon the value of land generally. They were bound to know in the ordinary course of events that the eighty-acre tract of land was much more valuable in February, 1914, than it was in September, 1895, and it could not be expected that they would act entirely free from the impressions thus obtained, evidence or no evidence of value. After a full consideration of this entire record, from every angle suggested or which occurs to us, we are not persuaded that the error in question was prejudicial, or that we Avould be justified in reversing the judgment for this cause alone. Wyse v. Wyse (1898), 155 N. Y. 367, 49 N. E. 942.
20. 21. It is also insisted that the court erred in admitting testimony tending to prove admissions of Gilly A. Tate after the death of testator and not within the presence or hearing of her coappellant, Silas A. Ramseyer. Ramseyer is the executor of the Tate estate and is not otherwise interested. Under this state of facts the executor is not to be regarded as taking beneficially but only as accepting, duties. Livingston’s Appeal (1893), 63 Conn. 68, 78, 26 Atl. 470. Gilly A. Tate was the sole, beneficiary under this will, and her admissions as to the mental capacity of the testator are receivable, since they affect her interest only. Wallis v. Luhring (1893), 134 Ind. 447, 451, 34 N. E. 231, Ann. Cas. 1918A 1067; 40 Cyc 1289; 1 Schouler, Wills §195.
Appellants challenge other rulings of the court in admitting testimony and in refusing to strike out certain answers. We have carefully considered each of these *439specifications, and have concluded that no sufficient reason is pointed out requiring us to hold that reversible error in any of these particulars is shown.
22. It is also insisted that one of appellee’s counsel in his argument to the jury was guilty of prejudicial misconduct. The alleged misconduct is exhibited to us by a bill of exceptions, whereby it is made to appear that the misconduct consisted in counsel arguing to the jury certain statements of the testator as though admitted to prove an ultimate fact not provable under the issue in this case; that is to say, the issue was not what distribution he intended to make of his property but whether or not he had mental capacity to do what he did. The statements counsel sought to pervert were admitted not for the purpose of proving an intention on the part of the testator but as pertaining to his conduct or mental activities as observed by his associates or acquaintances. Such statements were in evidence for no other purpose, and when counsel attempted to otherwise apply them, it was the duty of the trial court, upon request of counsel for appellants, to set the jury right by explaining to the jury the exact purpose and only reason for the admission of such evidence.
23. Appellees say the alleged misconduct was invited by one of appellants’ counsel in his argument to the jury. If this be true, the facts in justification should appear in the bill of exceptions, not for the purpose of justifying.one wrong by another but for the purpose of placing the reviewing court as nearly as possible in the position of the trial court. No such showing is made, and the question is here upon the facts stated in the bill to be considered in the light of the facts disclosed by the record.
*44024. 25. *439When the misconduct of counsel arose, two methods of procedure were open to appellants if they would reserve any question for review: (1) To promptly interpose *440and state their objection, if reasonably required, to the objectionable language or argument, and request the court to so instruct the jury as to counteract any harmful effect of such language or argument, and if granted, and such instruction was not sufficient to cure the error, follow such action by a motion to have the submission set aside; (2) to promptly object to the improper language or argument of counsel, and move to set aside the submission, stating reasons why the harm done could not be cured by any action the court might take in the matter. Of course, an exception must be reserved to all adverse rulings thus obtained. Appellants occupy the position of having properly objected to the argument claimed to constitute misconduct, with a ruling against them properly saved with an additional right to move that the submission be set aside, of which latter privilege they failed to avail themselves, thereby holding a point in reserve to undo the verdict if unfavorable. This failure will be regarded as an admission that the alleged improper argument did not furnish ground sufficient to set aside the submission. Consequently, appellants are in the attitude of coming to this court and asking that a judgment be reversed on account of an alleged error occurring at the trial of the cause which would not warrant the withdrawal of the case from the jury. The question of misconduct was again called to the attention of the trial court by a specification in the. motion for a new trial. The disposition of that motion carries with it the assumption that the court, upon a re-examination of the matter, concluded that no harm was done appellants by the ruling in question. Nor are we convinced that appellants’ position can be sustained.
Answering appellants’ insistence that we were in error- in holding that there was sufficient evidence of testamentary capacity to take the case to the jury, it *441is proper to say that we did not attempt to set out in our opinion all the evidence in the case, nor did we attempt to draw all the inferences which the evidence admits. At the earnest request of counsel, we have taken the time to again carefully examine the evidence, which discloses the record of a man’s life so completely and minutely that it is apparent that upon a retrial of the case nothing of serious import could be produced in addition to what is here presented.
If we were to weigh the evidence, our finding would probably be different than that of the jury; but such is not our province, and we decline to do so.
The petition for a rehearing is overruled.
Note. — Reported in 116 N. E. 417, 119 N. E. 716.' Wills: what constitutes capacity or incapacity to make, L. R. A. 1915A 443; see under (4-6) 40 Cyc 1004-1006.