DISSENTING OPINION.
BOND, J.— This case was transferred to Banc upon an opinion written by me in Division One, which was not concurred in by the other members of that division.
My individual opinion contains a full statement of the issues and a complete synopsis of the evidence bearing on them.
*33The only isne presented by the present appeal, is whether the testator had mental capacity to make a will.
The case was here on a former appeal from a judgment in the trial' court against the will on the issue of undue influence.
On that trial the circuit judge of his own motion took away from the jury the issue of mental capacity and the contestant did not then except to that ruling, but abided judgment in his favor on the other issues. The defendants appealed from that- judgment and this court upon a review of that appeal decided there was no evidence tending to prove undue influence in the record and remanded the cause with directions to the circuit court to submit it to the jury upon the issues of mental capacity. On the second trial the contestant again had judgment against the will, from which the defendants have appealed to this court on the ground that there is no substantial evidence in the record justifying that judgment.
The contestant in this case is one only of the two grandchildren of the testator, whose remaining grandchild, his daughter, his two sons, and his wife are all defendants. The maker of this will was M. W. Anderson. It was written according to-his direction on the 29th of March, 1906'. Within a year thereafter he died at the age of 69.
He was twice married, his first wife dying in 1887, leaving two daughters, Nellie Harvey and Kate Turner, the latter dying before her father and leaving two sons, one of whom is the contestant in this case. Three years thereafter he married again. His second wife survived him, as did two sons born of that union, Henry Clay Anderson and M. W. Anderson, aged ten and fourteen years at the death of their father. His widow, his three children and one of his grandchildren are the defendants in this cause; the other grandchild is the solitary plaintiff.
*34The will of the testator gave his residence, household and kitchen furniture to the surviving wife and bequeathed to her a government bond for $10,000, and ■ some cash. The will then gave to each of his sons certain lands and personal property and bequeathed $5000 to each of his two grandsons, who were the sons of this deceased daughter, Mrs. Turner. The remainder of his estate is devised in equal shares between his wife and two sons and his daughter, Nellie Harvey. His wife was made executrix without bond.
The testator was born and reared in Jackson county, Missouri. He held various offices, and in 1889 was one of the organizers of the First National Bank of Independence and was its president at' the time of his death. He was a man of affairs, of great vigor of mind and body, until about ten years before his death, when he became subject to periodical attacks of epilepsy of both the slight and severe kind. In 1899, he placed himself under the treatment of a specialist in mental and nervous diseases, and in the following summer, accompanied by his family and his physician, he spent several months traveling abroad, and had no attacks of his malady during that trip. Upon his return he was accustomed to go to St. Louis every month and spend a week under the care of his specialist. This he continued until 1905,- when he considered himself well and ceased these visits. When he had an attack of the milder form he would not fall to the ground. When the attack was one of the severe kind he would fall and become unconscious. The doctors termed these two types of the disease to be little sickness and great sickness. Neither of them prevented him from going about unaccompanied, nor from transacting his business.
He had made a will prior to the one in controversy and had added a codicil to it. He called to see his attorney prior to the making of the present will with reference to some alteration of the disposition of his *35former will and codicil thereto. His attorney suggested to him that it would he better to make a new will. He thereupon gave the attorney directions as to the draft of the will and assisted in pointing out to him the location of the lands devised thereunder, and showed him some of the bonds bequeathed. After the will was drawn in accordance with his directions he took it home and kept it over night and brought it back, saying to his attorney that he wanted a clause put in the will to the effect that if it was contested by any legatee or devisee, the interest of such contestant should thereby lapse and become a part of the residuary devise in his will. This clause, was inserted and thereupon the testator and his attorney went to the office of Hr. Twyman, his family physician for many years, and at the request of the testator, these two became witnesses to the will.
The testimony of those two witnesses was that at the time, of the making of his will the testator was of sound and disposing mind.
I.
Before reviewing the testimony, it is proper to announce the rules of law governing cases like the present.
There are two kinds of insanity or mental derangement; first, that which is temporary or intermittent; this may arise from various diseases; second, that which is habitual or permanent, which however caused, deprives the subject of the power to contract during its continuance. The party who alleges the first sort in avoidance of an act, must bring his proof of mental incapacity to the point of time when the act complained of was done and must not stop at an earlier period, for there is no presumption of continuance of this kind of insanity. [Buswell on Insanity, sec. 190; Richardson v. Smart, 65 Mo. App. l. c. 19, and cases cited.]
*36On the other hand when the second sort (chronic insanity) has been proven, or admitted to have existed at any particular time, the law presumes its continuance, and a party who alleges that a subsequent act was done in a lucid interval, must prove that mental capacity existed at the time of the act. And this requirement is not discharged by evidence of sanity before or after the date of the act. But in making proof of sanity at the time of the performance of the act it is not necessary to show that the mind of the subject was restored to its original state. It is sufficient to prove competence on his part for the common purposes of life. [Creagh v. Blood, 2 Jones & La. T. 509; Buswell on Insanity, sec. 189.]
When a will is contested in this State, the defendants or the proponents of the will must prove its execution and that the testator was sane at the time and of lawful age. This establishes a prima-facie case in favor of the will and entitles it to probate unless the contestants shall adduce substantial evidence tending to prove mental incapacity of the testator or undue influence exerted over his mind, at the time of the making of the instrument. If such evidence be adduced by the contestants the issue raised thereby must be left to the jury. [Southworth v. Southworth, 173 Mo. l. c. 72, and cases cited.]
One is competent to make a will who understands the act he is performing, the extent and kind of property he owns, the manner in which he disposes of it, the beneficiaries of his will and the persons who are the natural object's of his bounty. Possessed of that degree of intelligence, a man may make a valid will under the laws of this State, although his memory may be impaired by sickness or old age, and he may have forgotten the names of persons formerly known or things said to him, “or may be incapable of making a contract or managing his estate.” [Benoist v. Murrin, 58 Mo. 307; Brinkman v. Rueggesick, 71 Mo. l. c. *37556; Couch v. Gentry, 113 Mo. l. c. 255; Farmer v. Farmer, 129 Mo. 530; Berberet v. Berberet, 131 Mo. 399 ; McFadin v. Catron, 120 Mo. 252; McFadin v. Catron, 138 Mo. 197; Cash v. Lust, 142 Mo. 630; Riley v. Sherwood, 144 Mo. 354; Fulbright v. Perry Co., 145 Mo. 432; Southworth v. Southworth, 173 Mo. l. c. 72; Winn v. Grier, 217 Mo. l. c. 454; Sayre v. Trustees of Princeton University, 192 Mo. 95; Weston v. Hanson, 212 Mo. l. c. 270 ; Hayes v. Hayes, 242 Mo. l. c. 169.]
The clear and complete proof of the mental capacity of the testator at the very time of the execution of the will in controversy, and the total absence of any evidence on behalf of the contestant to the contrary will entitle that instrument to be probated unless we can find, in the present record, some substantial evidence that the testator was afflicted with prior chronic and continuous insanity, and therefore presumptively insane at the time of its execution. If there is any evidence in the record which tends to establish such a state of mind, then there was a question for the jury, and this being a statutory and legal action their finding against the will is conclusive on us, since no errors are assigned as to the instructions of the court or admission of evidence. But it will not avail respondent in this case to point to evidence in the record tending to show that the testator prior to the making of his will suffered from temporary or intermittent insanity caused by epilepsy. For the rule is, that such malady is not presumed to continue, and that a party relying on it to defeat a will or contract, must bring proof that it was operative on the mind of the subject at the very time of the doing of the act, sought to be avoided.
There is not a gleam of evidence in this case that' the testator had a recurring attack of insanity arising from epilepsy or other cause at the time he executed his will, nor within several weeks of that event. If that instrument was executed by him when insane, then *38that fact must be a legal and logical deduction from some substantial evidence in this record tending to prove prior, general and continuous insanity on his part, of such a degree as to deprive him of the power to make any civil engagement or perform any rational act. This necessarily limits and narrows our view of the testimony to such parts of it as may tend to prove habitual and permanent insanity on the part of M. W. Anderson before making his will.
In my divisional opinion I set out in extenso both the testimony of the experts and the non-experts relied on by contestant. There is no necessity to repeat that testimony. Dr. Hughes, the only one of the experts who gave the testator any treatment, testified fully as to the state of his patient until he ceased to come to him for further treatment. This expert stated in conclusion, to-wit: “Up to the time he quit, his mental faculties were good, normal. I didn’t see anything abnormal about him.” The other three experts simply gave their theories as to the nature of epilepsy as a disease. None of them stated that it was insanity and all of them conceded that an epileptic could, when not under the influence of the disease, act with intelligence and discretion, in any matter of private or public business. And this conclusion is also the result of universal observation and of the rules announced biy the textbooks as well as the decisions of the courts of last resort, here and elsewhere. A few of these will be noted.
In a case before the Supreme Court of Wisconsin it was shown that the testator made his will on the day after an epileptic fit, and within a few minutes after making the will he was taken with another fit, and died a day or two afterwards, and that court held that these facts did not show want of testamentary capacity, since it appeared he was in possession of his faculties when he executed the will. [In re Lewis’s Will, 51 Wis. l. c. 110.]
*39. So in Illinois it is said: “The proof of periodical epileptic attacks attended with convulsions, loss of consciousness, and the usual sequence of such attacks, or proof of temporary pneumonia supervening such an attack, with fever and delirium, is not such proof of insanity or lunacy as creates the presumption referred to in this instruction.” [Brown v. Riggins, 94 Ill. l. c. 569.]
Likewise in New York it was held: “But it was shown that he at times had epileptic fits, and after such a seizure he became, for two or three days, weak in mind as well as in body, so that’ he failed, at such times, to recognize his son-in-law and others. But when he recovered from such attacks his mind again became clear and strong, and he would resume his usual avoca' tions. The will iii question was made by him after one of these epileptic convulsions, and when no fact or circumstance is shown to exist bringing into doubt his ability to make a will. Without evidence of his want of capacity, at that time, or at a time near it, no case can be said to have been made out by the contestants. It is not disputed but that the testator went voluntarily and at his own suggestion to the county seat of Yates county, there to have prepared and executed his last will, and that he gave particular instructions in regard to the disposition which he desired to be made of his estate.” [In Rapplee’s Will, 66 Hun (N. Y.), l. c. 561.] To the same effect: In re Johnson’s Will, 7 N. Y. Misc. l. c. 224; 1 Underhill on Wills, sec. 112; Buswell on Insanity, sec. 190: Finally in our own State (the case of Wood v. Carpenter) the testator was over eighty years of age There was evidence that he had epileptic fits after making his will, and the plaintiff in the suit to contest his will and her husband, testified that he had these fits before the'will was executed. This court said that a verdict against the will was without any substantial evidence to support it and re*40manded the case with directions to establish the will. [Wood v. Carpenter, 166 Mo. l. c. 486.]
The correct rule is, that epilepsy is not in and of itself insanity, nor does it render its subjects incapable of normal and intelligent action except during the period of the seizures or at a time before or after, when the mind of the sufferer is still under the dominance of the disease. It may become insanity when, either from the violence and frequency of the attacks, or by complication with other ailments, it acquires sufficient power to destroy the mind of its subject. There is no evidence in this record that either of these conditions existed prior to the making of the will of the testator.
II.
Now as to the lay witnesses. Aside from New York and Massachusetts, and a few other eastern States, the American rule, like the English doctrine, is that nonexpert witnesses may .give their opinions as to the insanity of the maker of a will or of the defendant in a criminal proceeding. But they can only do so in connection with a statement of the grounds of their opinion, which must embrace “facts” existing within their knowledge and observation. They can express no opinion whether a hypothetical state of facts would be evidence of insanity. Neither can they express an opinion upon evidence which they have heard other witnesses detail. [Farrell’s Admr. v. Brennan’s Admx., 32 Mo. l. c. 334; State v. Erb, 74 Mo. l. c. 205; State v. Speyer, 194 Mo. l. c. 468; State v. Klinger, 46 Mo. l. c. 229; Cram v. Cram, 33 Vt. 15; 17 Cyc. 139, and cases cited.]
Whether an inference of insanity can be legally drawn from the facts stated by- a lay witness as a foundation of his opinion, is always a question of law which must be determined by the court. This being favorably ruled, then the court is warranted in per*41mitting the ease to go to the jury upon the testimony of such witness, and it becomes the exclusive province of that body to determine whether or not the inference of insanity ought to be drawn. If any other rule could obtain then it would logically follow that a suit contesting a will on the ground of mental incapacity would be referable to the jury upon the.mere opinion of an ordinary witness that the testator was insane, although no such inference could legally arise from the facts stated by the witness as the basis of his opinion. None of the lay witnesses testified to a single act or circumstance from which an inference of permanent insanity on the part of the testator could be drawn under the tests fixed by law to determine that state. Their testimony and its utter inadequacy is set out in my divisional opinion on file in the records of this court. Neither does the opinion of the majority point to any testimony in the entire record which tends to show in the remotest way that the testator was permanently insane before making his will. Under that state of facts the only possible theory on which contestant would have been entitled to go to - the jury, is that his evidence tended to prove that the testator was temporarily insane at the time he' made his will. Not only is there no evidence of this contention in the record but there was no pretence in the argument or brief that any such evidence was adduced on the trial of the cause, and the learned opinion of the majority admits there was none in the following statement contained therein referring to the effect of an epileptic seizure temporarily incapacitating the subject, to-wit: “In this case contestant put in no proof showing that the will was made at such particular time; contestee’s (proponents of the will) proof affirmatively shows to the contraryOn this undenied state of this record and under the settled law as to the necessity of proof that the .subject of temporary mental incapacity must be shown to have been in that condition at the very time *42of the making of the will, there was no case for the jury and the learned circuit judge ruled correctly when, of his own motion, and until compelled by this court to do otherwise, he took away from the jury the issue as to mental incapacity.
The sum and substance of all the testimony for contestants, as quoted and summarized in my divisional opinion, is that Mr. Anderson, the testator, was affected with the ordinary symptoms of epilepsy; he was sometime forgetful of persons and absent-minded and he displayed feeling when visiting his sister and niece and he did not have the full bodily and mental strength which characterized him before his epileptic seizures. But there is not a particle of evidence that he was unable, at other times and when free from the antecedent or consequent effects of his illness, to act rationally in the common things of his life; to make intelligent contracts; to collect interest; to look after and conserve his estate; to travel without any attendant on trains and street cars; to take care of his personal safety; to drive buggies; to carry purchasers to his farm for tlie purposes of selling’ them cattle and to transact his usual business at all times, except when’ under the sporadic and transient effects of epilepsy. The evidence is undisputed that these occasional seizures did not prevent him from making contracts and business deals during the latter years of his life and for nearly a year that he lived after making his will. The entire testimony shows beyond the shadow of a doubt that his spells were evanescent, infrequent, and not of the most violent type, and that they did not impair his ability to bear in mind with perfect distinctness on the 29th of March, 1905, when he made his will, the names of all his children and his grandchildren and all others, who were the natural objects of his bounty, and the full extent and values of his property and the manner in which he was dividing it among the benefiqiaries of his will. There is nothing in the record that tends to *43show that, for weeks before and after this time, he had experienced an epileptic attack of any nature whatever. I have been unable to find in this record any explanation of the action of the jury in breaking this will other than their possible opinion, that the testator, whom the evidence shows was in full possession of testamentary capacity at the time he made it, should not have devised less of his estate to his two grandchildren (only one of them being a contestant) than he gave to his own living children and his surviving wife. The statutes of this State, and the law of England since the 32nd of Henry VIII, have given to every citizen the right to malee a will of his land and property and to discriminate therein against anyone of the natural objects of his bounty. I think the verdict in this case is in palpable contravention of the Statute of Wills and the settled rules of law governing the submission of cases to juries, and that the judgment should be reversed and the will probated. Hence I am constrained to dissent to the learned opinion of the majority of the court.