A rehearing was ordered in this case after full consideration, the members of the Court who took part in the former decision being convinced that the questions involved deserve re-examination. This rehearing has been had, and we feel constrained to depart from some of the conclusions stated in the former opinion, which, while having the support of respectable authority, we find to be in conflict with some of the former rulings of this Court, which for the time escaped attention. For convenience we will consider the questions involved in the same order adopted in the former opinion.
1. The first question considered was whether counsel for the contestants abused his privilege in his opening state*237ment to the jury. On tbe former hearing tbe sitting members of tbe Court were impressed witb tbe view that tbe trial judge bad not sufficiently restricted contestants’ counsel in tbis case, but a fuller argument and examination have convinced us that tbe statements of counsel, both as to tbe propositions of law contended for in bis opening, and as to tbe facts which be expected to prove, were made in tbe utmost good faith. Tbe will offered for probate was made in favor of tbe relations of decedent’s husband, to tbe exclusion of her own nieces and nephews, and counsel for contestants referred to tbis fact, and claimed tbat it was an unnatural will, and tbat in such cases tbe law will draw an inference tbat tbe will was procured by fraud; and also argued, in tbe same connection, tbat tbe burden of proof in such cases would rest upon tbe proponents. Tbe question of undue influence was afterwards eliminated from tbe case by tbe trial judge. It is unnecessary to determine whether tbe contestants’ position on tbe law of tbe case was wholly sound or not, as counsel bad tbe right, under tbe rulings of tbe Court, to state in good faith bis claims as to tbe law, in so far as it was necessary to give tbe jury an understanding of bis theory. As was said in Fosdick v. Van Arsdale, 74 Mich, at page 305:
“Counsel have tbe right, both in opening the case to tbe jury, before tbe testimony to support their case is offered, and when closing tbe argument, after tbe testimony is in, to state to tbe jury that they claim tbe law to be thus and so.”
This ruling, it is believed, is in accord witb the general understanding of tbe profession, and certainly is no departure from tbe practice which has obtained at tbe circuit from tbe time of tbe adoption of tbe present rules of court. Tbis right would be nothing more than a mere shadow, or, worse, a dangerous snare, if, after counsel has *238taken his position in good faith, he is to be made the guarantor of his views of the law on every question presented, and, if in the end it should be found that he is mistaken on some point of minor importance, the judgment in his' favor is to be vacated for this reason. It must be an exceedingly plain case of an abuse of privilege which will justify the setting aside of the verdict on the ground of improper opening either in statement of the law or fact. Nothing short of bad faith or a gross misconception of what is admissible, resulting in bringing to the attention of the jury matters wholly irrelevant, and of a nature calculated to create so profound an impression that the charge of the court cannot eliminate the prejudice produced, will justify an appellate court in vacating a judgment on such grounds; and, in determining whether such an error has been committed, it is believed to be entirely safe to credit the jury with at least average intelligence. People v. Gosch, 82 Mich. 22; Porter v. Throop, 47 Id. 313; Campbell v. Kalamazoo, 80 Id. 655. Tested by this rule, we do not think any error was committed by counsel in his opening, either in stating the law or facts which he expected to prove. The statement of the facts expected to. be proved by Dr. Gallagher, quoted in the former opinion, was termed “extravagant.” A careful examination of the testimony actually introduced convinces us that the contestants made the proposition in good faith, and, although the proof of what was said was not as full as the opening statement, yet the substance of what was stated, namely, that Mrs. King mistook pills for flies, and mistook a fly for the pill, was testified to by the witness.
2. In the former opinion certain testimony was criticised as not in itself tending to show want of testamentary capacity. While this is true of the testimony quoted, yet a more full argument and citation of authorities convinces us that it was competent to show by witnesses that decedent *239was erratic, eccentric, rambling and disconnected in her conversation, flighty in her notions, unsettled; that her manner was excitable; that she could not comprehend connected conversation; that she ran about the house, screaming, with her dress open in the front, etc. These circumstances, of themselves, might not have been sufficient to show testamentary incapacity, but they were competent to be considered with the other evidences offered in the case for that purpose. It cannot be contended in this case that there was not enough testimony to justify submitting to the jury the question of mental incapacity, and, where this is the case, circumstances are often admissible which may co-exist with a perfectly sound mind. It seldom occurs that any one circumstance or act of a party will, of itself, show insanity. On the contrary, the judgment of his acquaintances, as well as of medical experts, must be and is made up from circumstances and acts trivial in themselves, but which, when considered together, carry conviction of mental unsoundness. Eeference is made to the case of Fraser v. Jennison, 42 Mich. 206, and language may be found in the opinion of the Court in that case which apparently gives some support to the contention of proponents. But we think this Court has never evinced the purpose of creating one rule of evidence which shall apply in will cases, but which is not to be adopted in any other. It is much better than that any such incongruity should become ingrafted in our law that it be left to the trial judge to guard carefully the rights of legatees by full and adequate instructions upon the degree of mental competency requisite to make a valid will, accompanied by any necessary caution against giving undue weight to circumstances which, while more consistent with insanity than sanity, yet may co-exist with either condition of mind. If it be the rule, as this Court has repeatedly held, that inferences from proven facts are to be drawn by the jury, *240and not by the court, it follows that in making proof of mental incompetency any fact which is more consistent with that theory than with the theory of mental soundness must be admissible, and the duty of drawing an inference therefrom is one which an appellate court should not undertake, but which rests with the jury impaneled in the trial court. As was said in Perrott v. Shearer, 17 Mich. 54:
“ When evidence is submitted to a jury, as bearing upon a certain point,- it is for them and not for the court to determine whether it tends to establish that point or not. Whether it does so, in their opinion, may depend, not alone upon that particular item of evidence, but upon that evidence considered in its relation to other evidence.”
In Wessels v. Beeman, 87 Mich. 489, it was said:
“We have frequently held that the tendency of the testimony to prove a certain fact is exclusively for the jury, and it is error for the circuit judge to add the weight of his opinion as to what it tends to prove, when there is a dispute in the testimony upon a point.”
In Blackwood v. Brown, 32 Mich, at page 107, it was said:
“What certain statements tend to prove, or the weight to be given them, are proper questions for the jury, and the court cannot instruct them as to the weight or importance to attach to any particular part of the testimony. To do so would be but usurping the proper province of the jury.” See, also, Hayes v. Homer, 36 Mich. 374.
As was stated in the former opinion, several witnesses were permitted to express an opinion as to the mental capacity of Mrs. King to make the will in question. It was strenuously insisted upon the argument for a rehearing that the witnesses in question showed their competency to speak upon the question, and that the weight to be given to their testimony was for the jury. The language of the Court in the former opinion upon this subject was too broad in excluding the testimony of the witnesses *241Austin, Hanley, French., and Weitz. Their testimony, as has been stated, was competent to be judged by the jury, and, upon fuller consideration, we are not inclined to hold that, as matter of law, it was not competent to take their opinion, although their opportunities for judging as to her capacity were certainly not such as-to entitle their testimony to any great weight. But we are all of the opinion that the testimony of the witness John Scott did not show that he had such an opportunity of judging of Mrs. King’s mental capacity as entitled his opinion to be received as evidence.
It is contended on behalf of the contestants that the jury are to be made the judges in all cases of, whether the acquaintance of the witnesses with the party whose sanity is in question was such as to entitle their opinion to weight. In any case where they have shown sufficient acquaintance with the party as to render their opinion of any value whatever, this is undoubtedly true, and it can be said on behalf of such a rule as is contended for that it is one more easy of application to particular cases than that which we believe to be the more correct rule; which is that in any given case the trial judge should, as a preliminary question, determine whether there is any basis shown by the testimony of the witness for an opinion. In Beaubien v. Cicotte, 12 Mich, at pages 502, 503, it was said:
“The general doctrine is that all witnesses speaking from observation must, as far as possible, state such facts as they can give as the basis of their opinion. This rule does not require them to describe what is not susceptible of description, nor to narrate facts enough to enable a jury to form an opinion from those alone. This would be impossiblé; and, if it could be done, there would be no occasion for any opinion from the witnesses. * * * But, if witnesses were not compellable to state such facts as are tangible, there would be no means of testing their truthfulness. When they - state visible and intelligible *242appearances and acts, others who had the same means of observation may contradict them, or show significant and explanatory facts in addition; and if their story is fabricated, or if they describe facts having a medical explanation, medical experts may detect falsehood in inconsistent symptoms, or determine how far the symptoms truly given have a scientific bearing. But, from the nature of things, no rule can be laid down declaring zvhat amount of acquaintance or what opportunities are necessary to enable an observer to be a witness. There are cases of insanity open to the slightest scrutiny, while others defy the keenest search. But no testimony can be of any real value unless it appears the witness had adequate means and opportunities for forming some conclusion.”
In White v. Bailey, 10 Mich, at page 163, Mr. Justice Campbell said:
“Until the facts were shown, it could not be determined whether the witness was competent to form any opinion whatever, or Avhether there was room for any inferences not within the unaided good sense of the jury. Had the witness been fully examined concerning his means of observation, and also concerning the facts he actually observed, it is possible that the question put, although somewhat too broad in form, might not have been legally objectionable; and it does not seem to have been objected to on this account. But, standing alone, it was certainly immaterial what opinion any person had formed upon the condition of the deceased, because there was no legal basis shown on which it could be rested.”
This ruling, of necessity, implies that, before the witness is permitted to express an opinion, he must testify to something in the appearance of the party which is sufficient at least to justify the inference of incompetency. It may be a question of some difficulty to determine in all cases whether a witness has shown himself competent, nor do we intimate that he may not be able to state to the jury his opinion, after showing that there were acts and appearances of the party which he is unable to describe to the jury, but which left an impression upon his mind; but in *243the absence of this, and where the testimony of the witness only goes the length of showing acts which are entirely consistent with sanity, and which have not the slightest tendency to show insanity, it would be a dangerous rule which would permit his opinion to be received.
3. It was stated in the former opinion that the testimony relating to the insanity of Mrs. Kings’ sister and niece ought not to have been received. Upon fuller argument, and a careful examination of the former rulings of this Court, we are satisfied that the case of People v. Garbutt, infra, has settled this question, and therefore hold that this testimony was admissible as tending to show an hereditary taint of insanity in deceased, and that its weight was for the jury. People v. Garbutt, 17 Mich. 9. See, also, State v. Simms, 68 Mo. 305; Baxter v. Abbott, 7 Gray, 71.
4. We adhere to the view expressed in the former opinion that the question to Dr. Draper was incompetent. This question was:
“ Assuming that Exhibit B, hereto annexed, is a true record as far as it goes, what, in your opinion, must have been the condition of «Abigail Williams, the patient, from the time of her admission to her death?”
The record, which is set out in the former opinion (88 Mich. 584), speaks for itself. If inferences are to be drawn from it, they are to be drawn by the jury. The witness, in answer to the question, testified to certain conclusions based upon the assumed fact that the existence of any pronounced delusions or paroxysms of excitement would have been noted in the record. It was specially objected that the proper foundation had not been laid for this question. This objection was well taken. It did not appear that the witness had any knowledge of the methods employed of keeping these records at the time Abigail Williams was an inmate of the asylum.
5. As the case must go back for a new trial, it is hardly *244necessary to consider at any great length the competency of the hypothetical questions referred to in the former opinion. It is quite evident, however, that the witness had in mind, in giving his' answer to the second question, elements which were embodied in the first. We are satisfied that the criticisms made of these questions in the former opinion were somewhat too stringent, and that it is unsafe to lay down any rule which excludes any portion of the actual history of the case of which evidence has been given as incompetent, for the reason that these evidences, by themselves, have no tendency to support the claim of insanity. A cross-examination, by sifting out-such facts, will elicit the true grounds of the expert's belief, and enable the jury to judge of the reasonableness of the conclusions. It also follows from this view that it was competent to call the attention of the witness to such acts as were claimed by the proponents to show sanity,, and to take the opinion of the witness as to whether the-existence of these facts, together with those claimed to have been proven by the contestants, was inconsistent with the claim of insanity of the testatrix.
6. It appears by an examination of the record that the-Mix letters, offered in evidence, and which were excluded, were not written by the witness under examination. The rnlirig of the circuit judge excluding them was therefore correct.
7. We still adhere to the view that the cross-examination of Mrs. Mix was too much restricted, and that the questions put to her should have been permitted. As was said in the former opinion, the testimony of this witness was such as to justify a very broad latitude of cross-examination, and the question, namely, whether a banquet was given by a elub to which her son belonged, and at which her husband made a speech, and whether Mrs. King-attended the banquet, was certainly entirely proper. It was an *245important fact, if true, that Mrs. King was able to attend .and participate in the banquet.
8. In the former opinion it was stated that the burden of proof was upon the contestants both upon the question of mental capacity and undue influence. This is undoubtedly true as to the latter. This statement was not ■essential to the determination of the case, and was not made upon the full examination of the subject that would ■doubtless have been given it had it been deemed important to the decision of the case. Undoubtedly, the statement is supported by many authorities, blit it is not in accordance with the rule in this State, and, in order that the profession may not be misled by this statement, we take th§ earliest occasion to correct it. It was held in Aikin v. Weekerly, 19 Mich. 482, upon a review of the earlier authorities of this State, that the burden of proof upon the question of mental capacity rested with the proponent throughout the case. This rule was followed in McGinnis v. Kempsey, 27 Mich. 363, 373, and has become so firmly established as the law of this State that we do not feel justified in overthrowing it. See, also, Beaubien v. Cicotte, 8 Mich. 9; Taff v. Hosmer, 14 Id. 309.
The order reversing the judgment should stand, but it will be modified in so far as it relates to the costs of the •court below. Judgment will be entered reversing the judgment below, with costs of this Court, the costs of the •court below to abide the event of a new trial. No costs will be awarded to either party on this rehearing.
McGrath and Long, JJ., concurred with Montgomery, J.