Will Contest. This is a proceeding instituted by the heirs at law of Neis Johnson to contest the validity of an instrument purporting to be and duly probated as his will. Prom a verdict and judgment for proponents plaintiffs appealed.
The petition alleges that (1) Johnson lacked testamentary capacity, (2) the will was the product of undue influence and (3) Johnson did not understand English and did not sign the instrument "as and for his will, understanding and knowing the terms and contents thereof."
On the trial there was ample evidence warranting a verdict in favor of the will, but there was also evidence for plaintiffs tending to prove the allegations of the petition.
The principal question presented concerns the correctness of instructions given for proponents, as fol-' lows:
“Gentlemen of the Jury: (1) If you find and believe from the evidence that the instrument of writing mentioned in the petition and offered and read in evi*534dence in this case was signed by Neis Johnson by making his mark thereto, as his will, in the presence of two witnesses and that the witnesses subscribed their names to such instrument, in his presence and at his request and that at the time of signing such instrument of writing said Neis Johnson was twenty-one years -old or more and had at such time intelligence and mind sufficient to understand the act he was performing, the property he possessed, the disposition he was making of it, and the persons and objects he was making the beneficiaries of his bounty, then your verdict should be that such instrument of writing is the will of said Neis Johnson.
“ (2) The court instructs the jury that if you find from the evidence that the witness Bachland and Uttenberg were sent for by Neis Johnson, the testator, to act as witnesses to his will, and that they were present in the room where the will was written for the purpose of 'witnessing it, that such will was written and prepared in the presence of said witnesses and said testator, and read over to said testator and he said he was ready to sign it and he did sign it by making his mark to his signature in the presence of said witnesses and it was then passed over to the said witnesses Bachland and Uttenberg and the certificate on such will they were required to sign was read over to them in the hearing of said testator and in his presence and' the witnesses there in the room in the presence of the testator, signed their names to the will where they were directed and shown by Mr. Fly, then such acts constitute, in effect a request from said Neis Johnson the testator that such witnesses sign the will and you should so find.”
Sufficiency of Evidence. 1. Preliminarily it may be stated that the suggestion the evidence does not support the verdict has not sufficient basis in the record to justify a detailed statement of the facts. The . , . scrivener, the attending physician, one of 'the attesting witnesses and others testified directly to *535the sanity of Mr. Johnson. The evidence to the contrary, while sufficient to take the case to the jury on that issue, was not convincing and it is not surprising it did not convince the jury. There was direct evidence to support a finding that the will was duly signed, published and attested; the testator being of the requisite age, this made a prima facie case. [Avaro v. Avaro, 235 Mo. l. c. 429.] The fact that one of the attesting witnesses expressed doubts as to Mr. Johnson’s sanity and did not remember being expressly requested to attest the will was of little consequence in view of the above mentioned testimony and the further fact that there was much evidence tending to show that Mr. Johnson sent for the witnesses for the express purpose of making a will, that in the presence of the witnesses he directed the disposition made of his property in the instrument, had the witnesses act as interpreters, the discussion concerning the will being carried on in a language the witnesses fully understood and the instrument being re.ad over to him in their presence he said he was ready to sign and did sign it, understandinglv, and it was then handed to and attested by them in' his presence. When the instrument was offered for probate both witnesses gave the customary evidence as to due execution and the sanity of the testator. In these circumstances subsequent doubts of one attesting witness as to Mr. Johnson’s sanity and his failure to recall an express request to attest the will fall far short of' a showing sufficient to justify the trial court in directing a verdict against the will. [Hughes v. Rader, 183 Mo. l. c. 701, et seq.]
It may be added that while there was some evidence Mr. Johnson did not understand English sufficiently to comprehend the meaning of the instrument after it had been drawn up in that language, there was abundant evidence that he did understand its meaning and that it was drawn following directions he had given in *536Swedish to the attesting witnesses which they interpreted for the benefit of the scrivener.
2. (a) With respect to the first instruction it directs a verdict in case the jury find certain facts but, entirely ignores the issue as to undue influence.
Undue Influence: Instructions: Evidence. There was some evidence tending to show the folfowing facts: Lafgran, the residuary legatee, was not related to Mr. Johnson by either blood or marriage but had lived near him for many years and had worked for him at times and was aiding him to some extent during the early days of his last illness; a short time before the will was executed Lafgran took Mr. Johnson to his own home, the latter’s condition having become such that he could not care for himself; at this time Mr. Johnson was very' sick, his wife had died some ten days previously, he was seventy-five or eighty years old and quite feeble, both in body and mind, before he became ill; from the time of his removal to Lafgran’s home until the will was made and thenceforward until his death he was cared for in Lafgran’s family, though there was no evidence that Lafgran personally waited upon him or acted as his nurse; on the morning of the 16th of March Lafgran went for Back-land, Uttenberg and Fly, the two former being attesting witnesses and the latter the scrivener who drew the will; during the time the will was being prepared Lafgfan was in the room with Mr. Johnson and upon the latter’s saying, he would keep some of his property as he would need it when he got well there was some evidence'Lafgran went to the bedside and explained in the Swedish language that the will would not operate like a deed but would only take effect at death; that while the will was being drawn and after Backland had talked with Mr. Johnson for some time in Swedish and had said that he “couldn’t drive nothing into his head,” Lafgran went to the bedside and talked with Mr. Johnson and said, “Didn’t you promise you would give me *537a lot to bring you here and take care of you?” and Mr. Johnson said: “Yes, I want you to have something for taking care of me; ’ ’ that Backland touched Lafgran on the shoulder and told him he mustn’t talk that way and Lafgran replied:. “I was telling him what I ought to have;” that Lafgran then told the scrivener what to write. There was, also, evidence Mr. Johnson at the time was mentally as well as physically weak and •feeble.
The estate was worth, above debts and funeral expenses, about $3000, and of this Lafgran was given all but $700, of which sum plaintiffs, who are Mr. Johnson’s nephews and nieces and -only living relatives, were given $100 each. There was some evidence plaintiffs were and had been on friendly terms with their uncle.
Question for Jury. It is true there was a great deal of evidence contradicting and explaining that recapitulated in so far -as it possessed any sinister significance whatever> but this fact does not constitute an answer to the contention that the evidence stated was sufficient to take the issue of undue influence to the jury. It may be conceded that the weight of the evidence seems from the record to be with proponents and yet this does not meet the question raised. That question is not whether this court thinks it. would find against undue influence on this record nor whether, from the record, it thinks the jury ought to have found against it if the issue had been properly submitted. In legal effect the trial court’s action was equivalent to telling the jury there was no substantial evidence of undue influence which they had a right to believe and; equivalent to instructing them to find for proponents on that issue. [Crum v. Crum, 231 Mo. l. c. 636.] Plaintiffs had not abandoned but were insisting-upon the submission of the issue and it is clear, when the evidence stated is measured by the applicable rule (Carl v. Gabel, 120 Mo. l. c. 295, et seq.; Teckenbrock v. Mc*538Laughlin, 209 Mo. l. c. 550, 551; Gibony v. Foster, 230 Mo. l. c. 137; Cowan v. Shaver, 197 Mo. 203) that the court was in error in ignoring it and practically excluding it from the jury by the first instruction given at proponents’ instance. It was the jury’s province to pass on the conflicting evidence on the issue of undue influence and this the trial court did not permit them to do. Since every known living relative of Mr. Johnson was made a legatee the requirement in the first instruction that he must be found to possess sufficient mental capacity to understand “the persons and objects he was making the beneficiaries of his bounty” closely enough approximated the usual and therefore safer formula.
Testator's Understanding of English. (b) There was substantial evidence on both sides of the question whether Mr. Johnson understood English well enough to grasp the mean-l°^ the instrument he signed and whether, in fact, he did understand that instrument and understand it to«be a will and that he was executing it as his will when he signed it and it was attested. The evidence was entirely sufficient to warrant an affirmative finding, but there was substantial evidence to the contrary. In view of this fact instructions one and two in so far as they ignored this last mentioned evidence are erroneous. In the circumstances, a mere capacity to understand was not all that was required. The jury should have been required to find that as a fact Mr. Johnson did understand. Nor, in the circumstances, unless he in fact understood, would the facts predicated in the second instruction have the effect ascribed to them. The rule laid down in Hughes v. Rader, 183 Mo. l. c. 701, et seq. and Walton v. Kendrick, 122 Mo. 504, is sound enough but does not, on the evidence in this record, warrant an assumption in the instructions that Mr. Johnson understood the will as written in English. [Miltenberger v. Miltenberger, 78 Mo. 27.] In this connection instructions given at the instance of plaintiffs sufficiently required a finding of *539the fact that Mr. Johnson did understand the- will but the result was a conflict which could only tend to confusion.
3. So far as concerns the suggestion that Mr. Johnson’s intent was that Lafgran’s right to take under the will should be conditioned upon his paying over a specified sura to an orphan’s home it is only necessary to say that the sixth instruction given for plaintiffs sufficiently covered that issue. [Cowan v. Shaver, 197 Mo. l. c. 212, et seq.]
The judgment is reversed and the cause remanded.
Brown, C., concurs.PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.
All the judges concur — Woodson, J., in the result.