This is a procéeding under the statute to probate, in solemn form, the will of one Samuel Heinbach, deceased. The plaintiff is the widow and (except for merely nominal bequests to decedent’s three children) the sole devisee under the alleged will. The defendants Jesse Heinbach, Naomi Summers and Edith Britton are the children and heirs at law of deceased, and William P. True is the administrator of the estate of deceased.
Samuel Heinbach made the alleged will in controversy on September 27,1909, and died in Ralls county, Missouri, on January 3,1910. When the paper writing in controversy (hereinafter for brevity we beg the question and call said paper a will, and designate Samuel Heinbach as the testator) was presented to the judge of the Ralls County Probate Court, it was rejected and probate thereof refused. Thereupon the plaintiff brought this action in the circuit court of said county, and being cast therein, appealed to this court.
The petition was in the usual form; no point turns either upon its form or contents; so we need not cumber the record with it.
*77The answer, after admitting the formal allegations of heirship of defendants, the death of testator, the rejection of the will by the probate court, and the appointment of defendant True as administrator, averred as affirmative defenses, lack of testamentary capacity in testator, arising from an unsound mind, superinduced by old age and the excessive use of intoxicants, and that the said will was the result of undue influence exerted upon testator’s mind in its alleged weakened state. But there was no sufficient proof adduced upon the latter point, so the learned judge nisi properly took this phase of the case from the jury, and thus it falls out of the case.
In the view which we are forced to take of the case, it will not become necessary to set out in detail the facts shown by the testimony of each of the several witnesses. The record is voluminous, containing as it does, over six hundred pages, and so we shall here content us with a sort of shorthand sketch of the salient facts in the case.
Samuel Heinbach, the testator, was a native of Indiana, where he married in 1872. Nine years later he abandoned his wife and children, of the latter of whom there seems then to have been two living, and came to Pike county, Illinois. Here at a point on the Mississippi River, about opposite the present village of Basco, he located himself and began to cut cordwood and do other work in the timber for a livelihood. One period of reconciliation with his first wife and family is shown, but whether this occurred within the nine years prior to 1881 or subsequent thereto and between the latter date and 1885, is dark and obscure in the record. There are both evidence and inferences in the record supporting either view. 'Likewise, it may be said in passing, there is some vague but hardly credible support for the view that his wife and family deserted him. But neither point is directly in issue or necessary to be Rifled on. We but refer to it in fairness.
*78When the final separation occurred (the date whereof is upon the .whole record exceedingly obscure), testator returned to the eastern banks of the Mississippi River, leaving his wife and young family in an indigent and poverty-stricken condition, and again took up his labors as a wood-chopper and a worker in the forests. For many years he lived with one Theodore Johnson and kept “batch,” as the witnesses express it in the vernacular. About 1888 testator moved across the Mississippi River to a point in Ralls county some three miles south of Hannibal, Missouri. There he and Johnson had purchased together as tenants in common a tract of land containing some fifty-two acres. Johnson married about 1887 and went to live on this land, and verbal partition (subsequently consummated by mutual conveyances before this cause of action arose) between him and testator of this land seems to have been had, after which testator lived alone on his twenty-six-acre tract, subsisting by the cultivation of his land as a truck-farm and the sale, of vegetables and produce therefrom.
In 1901 a large factory for the manufacture of Portland cement was constructed on a'tract of 1800 acres of land near, or immediately adjacent to, the said land of testator. Testators’ land thereupon came into demand as building sites for the houses of employees at this cement factory, and for sites for shops and store's, so that a small village, called Ilasco, grew up thereon. This land is the bone of contention here, forming as it does practically the whole estate of testator.
When testator and Johnson purchased the land in 1887, they paid only some ten dollars per acre for it, but when this case was tried the value of testator’s part of it was laid at from $12,000 to $15,000.
Shortly after the construction of the cement factory testator began to lease building lots (pursuant to a rough plat made by Jack Briscoe, then his agent, now *79of counsel for defendants)- on the basis, as a rule, of what the witnesses style “ground-rent” of one dollar per lot per month. There were something over a hundred of these leased lots (to be exact, 106) held by testator’s tenants upon leases- running from their several dates for ten, fifteen, twenty and twenty-five years, the ground-rent from which had for several years been bringing testator an annual gross income of from $1065 to $1120.
From about the middle of September, 1905, down to the date of. testator’s death, he had an agent (at first, and from September or October, 1905, to October, 1906, said Briscoe, and thereafter till his death, one H. F. Fleurdelis), who collected his rents and for the most part prepared his leases and receipts, or, to be more exact, filled in the blanks therein, as both the receipts and the leases (for the major part) were upon printed blanks. But seven out of some fifty-six leases are shown by the proof as having been made prior to October, 1906, and presumably therefore by testator himself. In 1906 the latter procured by default a divorce from his first wife on the ground of desertion. This wife had then ten years before remarried, apparently without the prior formality of procuring a divorce from testator.
Testator, as far back as the witnesses are able to recall, was intemperate, and this -condition grew on him with the years and after dramshops became plentiful and liquor more convenient at Ilasco. Touching the fact of his excessive use of strong drink the witnesses are practically unanimous, differing for the most part only in the degree of sottishness which they attribute to him. Some of them say that in thirty years’ acquaintance with him they never saw him wholly from under the influence of intoxicants; still others say that he was the worst drunkard they had ever known; others yet, on the contrary, say they have sometimes seen him sober, once for a period of two *80weeks, continuously. Two physicians, one of them his family physician, say that he died of alcoholic dementia. One of these, testifying largely from the history of his case and partially hypothetically, says that this condition of dementia must have existed for as much as a year before his death, and it therefore included the time at which the will was made. Per contra, another physician, who had formerly likewise long been his physician, and with opportunities equal to any other witness in the case to know and observe his condition, swears that he was not a senile or alcoholic dement, but was of sound mind.
Nine lay witnesses swear positively that testator was sane; while five for the defendants are equally positive that he was not of sound mind. ' Some, at least of the latter, had reasons fairly well founded for the opinions they expressed.
Plaintiff prior to her marriage to testator was a widow of mature age; the relict of one Scott, sometime recorder- of Pike county. Her marriage to testator was but'a little over nine months old when the will was made and but a year had elapsed when testator departed this life.
The charge of undue influence properly fell out of the case for lack of proof to sustain it and we need not follow it further. Plaintiff, it may be said in passing, was, so far as the record before us shows, uniformly kind and attentive to testator, omitting for his care and comfort no wifely duty, though his filthy drunken condition often rendered the performance of these duties peculiarly onerous and revolting. Testator, as the proofs shows, fully appreciated plaintiff’s care and attention, and spoke of her uniformly with much love and kindness.
Testator talked loosely, possibly drunkenly, of the condition and financial states of his children. Many things he said of them as to their station in life and their comfortable situations were apparently false; *81but whether these statements were but the drunken, idle vaporings of intoxication, or whether they were the results of mental hallucinations, is utterly dark from the record. His son Jesse is wholly unaccounted for and whether, except for the purposes of this particular action, he be living’ or dead, we cannot ascertain from this record, though the showing is made that he had been absent, unheard of, for nineteen years when the case was tried. It is of sentimental value only and in nowise pertinent to or decisive of the legal questions herein involved that testator’s children, the defendants here, made no greater effort to find him (till he was dead) and aid and comfort him than he, on his part, made to find and assist them. Any, the least, effort on either side would indubitably have resulted in discovering the whereabouts of the other side.
Upon the trial of the case the court gave, among other instructions asked by defendants, this one, to-wit:
“Notwithstanding the jury may believe from the evidence that Samuel Heinbach was able to transact some business, signing leases, giving checks, receipts, yet unless the jury believe and find from the evidence that at the time of the execution of said alleged will, said Samuel Heinbach possessed a mind and memory sufficiently dear and unimp air ed to take into consideration all his property, and the persons who had a natural and reasonable claim on his bounty, if any, and the disposition he desired .to make of his property, then he did not have sufficient capacity to make a will and the verdict of the jury must be against said will. ’ ’
The jury by their verdict found that the paper writing in controversy was not the last will of decedent and plaintiff has appealed in due form.
Other facts, if such shall become necessary, will be found set forth in the opinion.
*82I.- Counsel for plaintiff in the assignment of errors in their brief set out thirteen different reasons why the judgment below should be reversed. Coming to a critical examination of them we conclude that in all fairness and clarity these alleged errors may all be considered under four heads; more especially so since, for what seems to us fatal error, we are forced to reverse and remand the case. So, we shall discuss these assignments under four heads, which include all points briefed.
Incapacity of Testator: Sufficient Evidence. The.first contention made is, that there is no sufficient evidence of unsounctness of mind producing testamentary incapacity to take the case to the jury. We will consider briefly whether this is so. The rule is now well and abundantly settled that a will contest (and this action though technically an action under our statute to probate a rejected will in sol-
emn form, is yet in the last analysis but a will contest) is an action at law and the rule that as an appellate court we may not interfere where there is substantial evidence to sustain the verdict of the triers of fact, prevails and concludes us. [Roberts v. Bartlett, 190 Mo. l. c. 695; McFadin v. Catron, 138 Mo. l. c. 227; Naylor v. McRuer, 248 Mo. l. c. 458; Hill v. Boyd, 199 Mo. l. c. 448; Turner v. Anderson, 236 Mo. 523; Knapp v. Trust Co., 199 Mo. l. c. 663.]
In the case of Naylor v. McRuer, supra, Division Two of this court, quoting largely from Roberts v. Bartlett, supra, said:
“As a court of errors in a case of law, as a contest of a will case under our statute is, we are not required to pass upon the credibility of the witnesses and the weight of the evidence, if the evidence be substantial; these considerations are relegated to the triers of fact.
“This doctrine is said in Roberts v. Bartlett, 190 Mo. l. c. 695, to be well settled in this State. In this behalf the language of Gantt, J., in the case above *83cited, is pertinent: ‘The rule of practice is well settled in this State, that a will contest is an action at law, and this court will not reverse the judgment because the jury found against the weight of the evidence, but that this court will examine the record to see if there is any testimony to support the finding, and where there is no evidence whereon to base the verdict, the judgment will be reversed. [State ex rel. v. Guinotte, 156 Mo. l. c. 520, 521; McFadin v. Catron, 138 Mo. 227.]’ ”
"When we have recourse to this rule in the instant case we see that there was adduced substantial evidence of testator’s testamentary incapacity. We have in the statement of the case briefly referred to the number of witnesses who testified for and against his sanity, and also briefly to the general trend of their testimony. The learned court nisi was right in taking from the jury the issue of undue influence, and he was also right in refusing to take from the jury the question of testamentary capacity. Since the case, however, must be reversed and remanded for other reasons below set out, we will not here cumber the books or hamper a retrial with a resume of the evidence. Suffice it to say, that while the testimony in our view was by no means conclusive or satisfying on the question of the soundness or unsoundness of testator’s mind, it yet being substantial, and partially by reason of this very inconclusiveness, made out a case to be resolved upon proper instructions by the triers of fact alone. We disallow this point then, and say that if upon another trial the testimony as to lack of mental capacity to make a will shall prove as strong as that in the record before us, the case should be left to the jury upon this question.
*84Interest of Witness: Attorney’s Contract of Employment. *83II. Counsel for plaintiff made most strenuous efforts to put in evidence the written contracts of employment made between defendants Edith Britton and *84Naomi Summers of the one part and one of defendants’ counsel upon the other. The court below refused to allow these contracts of retainer to go to the jury, upon the theory, it may be, that however much light these instruments might or might not throw upon the defendants’ state of mind, they were of no probative weight in determining whether testator was sane or insane at the time he made the will in controversy.
It is urged by plaintiff’s learned counsel that these contracts ought to have been admitted in evidence for the reason that Mr. Jack Briscoe, one of the attorneys for defendants, was a witness in the case, and since his testimony shows that his services were procured by Mr. J. O. Allison, also of counsel, and the one with whom the contracts were made, the contents of these contracts would thus show the interest of the witness Briscoe in the result of the action.
The record shows that Mr. Briscoe had no contract based upon the contingency of recovery. In fact, he denied having any contract with anyone, but testified he was assisting as counsel because Mr. J. O. Allison told him he wanted him (Briscoe) to assist in the matter. Previous to the answer of Briscoe last above, he had answered, when inquiry was made as to whether he had any interest in the controversy, that he was “an attorney in. the case.” It is too plain for discussion that the contents of the contracts offered could throw no light upon the issue before the court. This issue was devisavit vel non and it turned wholly upon the mental condition of testator on the 27th day of September, 1909. The contracts were not made till January, 1910. Likewise in the light of the facts as shown by the testimony of Mr. Briscoe, since (he says and it is not denied) he had no contingent contract with either the defendants or Mr. Allison, but was merely in the case because Mr. Allison had asked him to assist in the *85matter (inferably, upon an implied agreement that Allison should requite him upon quantum merwt), how could the contents of the contracts of defendants with Mr. Allison, whether the same were fair or unconscionable, affect the testimony of Briscoe? He had already said in effect that he was an interested witness, because he had admitted he was an attorney in the case. Without his admitting interest the jury would have known he was an interested witness from the observed fact that he was of counsel. Conceding that as a general rule the interest of any given witness in the outcome of a case, or the bias or prejudice of such witness for or against either party litigant, may always be shown for the purpose of affecting the credibility of. such witness (3 Chamberlayne on Ev., sec. 1785; State v. Miles, 199 Mo. l. c. 546), it is yet fairly clear that under the facts here the rejected evidence was at most cumulative upon the point of the interest, in the case of Briscoe who, electing to become a witness as well as counsel, admitted an interest in the result of the case, which interest the jury would have noticed without his admission. The contents of these contracts had no other relevancy to this case outside of the exceedingly dim light they cast in a far-fetched way upon Briscoe’s admitted interest herein. Since this interest was frankly admitted and since, even if it had been denied, the jury doubtless.would have observed it, and known of it, and weighed it, nevertheless, and since it is not only good business but good human nature for a lawyer to feel an interest in the result of the cases in • which he or she is counsel, we are not disposed to say that the court erred in refusing to permit these contracts to be offered in evidence. So far as we are able to see the only effect of the contents of these contracts bipon the jury would have been to bias their judgment by prejudicial means. In passing, and looking by and large to the whole record in this case, we are constrained to say that had half as much effort been made *86upon the trial to frankly develop the actual facts as was made to inject hurtful prejudice into the minds of the jury, we might possibly have been able to ascertain' from the record the real condition of the testator’s mind and so might, perhaps, have been able to obviate a reversal of the case. As the record is we cannot conclude either way, and must needs reverse for error.
Depositions. III. It is contended by plaintiff that the court should have permitted plaintiff to offer the copy of the deposition of one Mrs. Mary Smashey, since the record discloses that the witness Neil Smashey testified that his wife Mary was ill, under the care of a physician and unable to appear personally and testify. "When learned counse? for plaintiff offered to read an alleged carbon copy of Mrs. Smashey’s deposition he did not identify her as being the Mary Smashey who, the proof showed, was too ill to appear. But as this from the whole record clearly was known both to counsel on both sides and to the court and as no objection to the offering was made for failure to show identity, we would not be able to excuse the trial court’s action on this ground alone. But since counsel have not seen fit to copy the refused deposition into the record, we are unable to say whether the refusal to admit it was error or not. We are not permitted to assume the existence of reversible error from the mere allegation of its existence; the law is •that hé who alleges error must prove error. Besides (and on this ground the action of the court nisi was entirely right), the record shows that counsel for plaintiff merely made profert of an alleged carbon copy of Mrs. Smashey’s deposition, saying, in so offering such copy, that he was unable to find the original. Counsel for defendants objected to the offering of-the copy of this deposition. Plaintiff’s counsel expressed himself as being unable to state whether certain interlineations which he stated he found upon the carbon copy *87had been made thereon by the witness, or made before the witness Mrs. Smashey signed this copy. Since there is no showing that the original deposition was lost, no inquiry having been made of the proper custodian thereof, and since no effort was made to'supply this document as provided by statute (pretermitting the weightier and sufficient objection that this deposition is absent from the record), we hold that the court below was right in refusing to allow the alleged copy of the deposition to be offered.
Likewise, plaintiff contends that the court erred in refusing to admit in evidence the deposition of Mrs. Ola Gregory. In this the court was also right. No showing was made as to the whereabouts of Mrs. Gregory at the time her deposition was offered. Pier deposition shows that she resided at Ilasco, which place the record abundantly shows is in Ralls county and only some ten miles or less distant from New London where the trial' occurred. This being so, it was incumbent on plaintiff, as a condition precedent to the admission of this deposition, to first show some one of the conditions under which section 6411, Revised Statutes 1909, permits a deposition to be offered. This plaintiff did not do.
Some controversy arose as to an alleged non est return upon a subpoena for this witness. But neither such subpoena nor the sheriff’s return thereon was offered. While under the statute we scarcely see the pertinency of this controversy, since it turned upon the question of whether a non est return (which was not offered) upon a subpoena (likewise not offered), the body of which may or may not have been written by counsel, but which was signed and sealed by the clerk (or his deputy), is a sufficient showing under section 6411, supra, to admit a deposition to be read without further proof of the absence of a resident witness from the State. We fail to see how it would be, or how the return on any subpoena, however written *88or issued, would of itself alone be a sufficient showing under our statute. Here it was incumbent upon plaintiff as a condition precedent to the offering of the deposition of this resident witness, to show either that the witness was without the State, or, being within the State, that she had gone to a greater distance tiran forty miles from the place of trial, without the consent, connivance or collusion of plaintiff.
IY. The serious question in the case is the contention that instruction numbered three is erroneous. This instruction we set out verbatim in the statement of the case.
Instruction on Incapacity. Appellant contends that said instruction three is a comment on the evidence and that it presents an erroneous definition of testamentary capacity. Taking the last objection first, and pretermitting for £he moment the question of the alleged comment on the evidence, if any, in this instruction, as well as the question of how far such comment serves to render bad the attempted definition, we conclude that even if the definition of the sufficiency of the soundness of mind which is meet for will-making, falls short of that given in the books, yet plaintiff was not hurt by it. The lack of sufficiency of definition was here in her favor. Testator, even if we concede all that plaintiff says of it, was by this instruction allowed to make a will though his mind lacked some of the elements of soundness — some of the tests prescribed in the adjudged cases. [Turner v. Anderson, 236 Mo. l. c. 544; Crum v. Crum, 231 Mo. l. c. 638; Holton v. Cochran, 208 Mo. 314; Roberts v. Bartlett, 190 Mo. l. c. 699; Naylor v. McRuer, 248 Mo. l. c. 462.] So, if the test of mental capacity as prescribed by this instruction fell so far short of being correct as to be erroneous, the error was clearly one in plaintiff’s favor and she is in no position to complain. [Naylor v. McRuer, 248 Mo. l. c. 463.] She was upholding the will. *89If the instruction permitted testator to make a valid will while possessing less soundness of mind than the law allowed, plaintiff was not hurt and so she may not complain. This is what we said in the case of Naylor v. McRuer, supra, while there approving the definition of mental capacity commensurate with testamentary capacity at set out in Turner v. Anderson, 236 Mo. l. c. 544. So much for the criticism of the definition of testamentary capacity as found in said instruction three.
But the point that this instruction is a comment upon the evidence, we think is well taken. Besides, two other criticisms may well he lodged against it. It picks out.but three isolated items of business shown by the proof to have been transacted by testator and ignores other contracts made largely or wholly by him, to-wit, the purchase of a house and lot from Dr. Tutt, and the purchase of a piano on a contract' of time-payment by installments, as also other business papers executed, to-wit, divers dramshop bonds. All these.things are shown by the proof to have been done by testator within the period during which Dr. Detweiler says he was a senile dement. We are not holding that such specific mention of all of the business, acts of testator would have cured this instruction. We may he permitted to doubt this. This fact„d°es> however, lend much color to the charge that the instruction comments upon the evidence.
Its effect is to utterly destroy with the jury whatever probative force exists in favor of sanity, and arising from the proven facts that testator did the several acts and items of business which we mention and also those which the instruction recites. Plaintiff was entitled to the full benefit of this proof. But this instruction says to the jury that even though testator was able to transact the business mentioned, all these acts went for naught in the scale of sanity, unless the jury went further and found that he “possessed a mind and memory sufficiently clear and unimpaired to take into con*90sideration all his property, and the persons who had a natural and reasonable claim on his bounty, if any, and the disposition he desired to make of his ■ property.” Both the letter and the spirit of this instruction are opposed to the well-settled rule of law in this State that a man may be mentally capable of making a will when he is mentally incapable to make a contract. [Brinkman v. Rueggesick, 71 Mo. 553; Crossan v. Crossan, 169 Mo. 640; Giboney v. Foster, 230 Mo. l. c. 134; Knapp v. Trust Co., 199 Mo. l. c. 663; Roberts v. Bartlett, 190 Mo. l. c. 696; Hamon v. Hamon, 180 Mo. 685; Crowson v. Crowson, 172 Mo. l. c. 702.] This instruction tells the jury in effect that though the testator might have been mentally capable of making a contract it did not follow that he was mentally capable of making a will It may not have followed in truth, either as a medical of a legal corollary, but plaintiff in so doubtful and dark a ease as this was entitled to have the jury consider all of the acts of business testator did in connection with all other facts and circumstances of the case in order to throw light upon the questions of whether when he made his will be understood he was doing so; whether he understood the nature and extent of his property; whether he knew all persons who reasonably came within his bounty and who were the natural objects thereof; whether lie understood to whom he desired to give his property and to whom he was giving it and whether he was able without the aid of others to retain these facts in mind long enough to make Ms will.
We feel no manner of doubt as to the error in this instruction and need not pursue this inquiry further. The case of Archambault v. Blanchard, 198 Mo. l. c. 422, where, we are told an almost identical instruction was given, is called to our attention. We find that such an instruction practically identical with this one was given in the above case and that neither counsel' nor this court criticised it. But even a casual reading *91of that case shows that this instruction (numbered 8, and appearing on page 422 of the reported.case) was never approved either expressly or impliedly; for after the instructions were set out in the statement of the ease, none of them was ever afterwards mentioned in the opinion, and the case was reversed and remanded with directions to probate the will, because there was not sufficient evidence to take the case to the jury. It therefore never became necessary to mention this instruction. But it is peculiarly unfortunate that this instruction should have been set out in the statement of the Archambault case, as the doing so may well have misled, as it undoubtedly did here mislead, both counsel for defendants and the learned trial court in this case.
Since for this error this case must be retried, we may here say that instruction two for defendants seems, a correct and fair statement of the law. [Turner v. Anderson, 236 Mo. l. c. 544; Naylor v. McRuer, 248 Mo. l. c. 462; Crum v. Crum, 231 Mo. l. c. 638; Holton v. Cochran, 208 Mo. l. c. 410; Goodfellow v. Shannon, 197 Mo. l. c. 280; Knapp v. Trust Co., 199 Mo. l. c. 663; Hamon v. Hamon, 180 Mo. l. c. 701; Current v. Current, 244 Mo. l. c. 437; Farmer v. Farmer, 129 Mo. l. c. 538.] We see no reason for defendants asking three instructions, however, each defining testamentary capacity, in different terms. If it should become necessary, and counsel are so advised, to refer more than once to the definition of testamentary capacity, it would simplify matters to refer aptly to the definition already given. However, if such reference does not suffice, at least three dissimilar, and therefore, to an extent misleading definitions, should not be given. One should be selected and adhered to.
For the reasons set out the case should be reversed and remanded, to be retried in accordance with these views. Let this be done.
Walker, P. J., and Brown, J., concur.