On Rehearing.
[11] This court had the power ex proprio motu to put the case on rehearing that further consideration might be given to the decisions said by appellant to be applicable to the rulings on evidence, which we now specifically indicate. It may be that we should have done this in the first instance when it was thought not to be necessary.
[12,13] The question propounded to the witness R. H. Foshee was: “Do you know anything about whether or not she assisted in any way her husband in making and accumulating his property?” After objection and exception, the witness answered: “I could not say positively, but I am of the opinion that she did.” This was not responsive, being an expression of opinion of the witness. The only part of the answer that-*432was responsive was “I could not say positively.” The .opinion of tlie witness was not permissible or sought to be elicited. The court cannot be put in error for allowing a nonresponsive answer to go to the jury when there was no motion to exclude. Ward v. Lane, 189 Ala. 340, 66 South. 499; Mobile Light & R. Co. v. R. O. Harris Gro. Co., 17 Ala. App. 659, 661, 88 South. 55. For like reason the court will not be reviewed for permitting defendant’s question to the witness Smith: “Now do you know about Mrs. Howell assisting her husband in making and accumulating his property and his estate?” to be answered: “Yes, I saw her most every' day at work there, at work scrubbing and washing and cooking.” Ward v. Lane, supra; Mobile Light & R. Co. v. R. O. Harris Gro. Co., supra.
[14] Counsel for contestant (appellee) was permitted to ask Mrs. Howell this question: “This property that he did leave, and that he owned at the time of his death, did you do anything towards assisting him in accumulating that property or making it? Just tell the jury what it was, Mrs. Howell?” to which the plaintiff (appellant) objected and excepted to the adverse ruling of the couft. The witness answered:
“Well, I helped him in every way that I could; if there was anything that I could do in doing my own.work and in helping him I did it. I taken in sewing part of the time, and I got up, when he got to running his taxi, I got up all hours of the night to get him his supper when he came in at night, and I would get up before day every day to get him his breakfast before he left, and I helped him in every was [way] to make and save what we have. I have done my washing and ironing and scouring to help him to make what we had,”
This answer of the wife, made the basis of appropriate assignment of error and arguments of counsel, is the story of normal domestic life, in a household where harmony prevails, frugality is practiced, and there is mutual help between husband and wife, according to their circumstances. We may be pardoned in the observation that in this answer we are reminded of the “virtuous woman” (wife) of whom it is said of old:
“She seeketh wool, and flax, and wo’rketh willingly with her .hands.” “She riseth also while it is yet night, and giveth meat to her household.” “She is not afraid of the snow, * * * for all of her household are clothed. * * * ” Proverbs 31: 13, 15, 21.
That answer is declaratory of the state of feeling between the parties within a reasonable time before and to that when the will was made; and it had not the effect of asserting or declaring an equitable title to any of the household properties, nor of tracing the source of title to any of her husband’s properties. It was this -we sought to declare in our short statement (in the original opinion) that—
“Questions by defendant tending to show the relation existing between the testator and his wife * * * were competent” — citing Burney v. Torrey, 100 Ala. 157, 168, 173, 174, 14 South. 685, 46 Am. St. Rep. 33.
In that case the will was contested on the ground of “fraud and undue influence” in procuring a bequest or devise. The court said it was competent to show the relations between the parties, and makes the distinction between evidence tending to prove title in property and that merely showing the relations of the parties. Mr. Justice Coleman said:
“It was not competent to prove property in Mrs. Torrey by a declaration of Mr. Torrey to the effect that it was his custom when he purchased property to take title of alternate purchases in her name. It was competent to prove by legal evidence that he had provided for her, and the extent of the provision. It was also competent to prove that she assisted limn to make the property, and his declarations to this effect.” (Italics supplied.)
The relations of the parties, on the issue of undue influence, have ever been held a material inquiry. Wear v. Wear, 200 Ala. 345, 348, 76 South. 111; Hughes v. Hughes, 31 Ala. 519; Couch v. Couch, 7 Ala. 519, 42 Am. Dec. 602; Seale v. Chambliss, 35 Ala. 19, 22; Gilbert v. Gilbert, 22 Ala. 529, 58 Am. Dec. 268; Dawley v. Congdon, 42 R. I. 64, 105 Atl. 393, 395, 396; 40 Cyc. p. 1286. Analogy is contained in Griffin v. Working Women’s Ass’n, 151 Ala. 597, 605, 44 South. 605, 607, where the ground of contest was fraud; “the friendly relations that existed between the deceased and the proponent, who was his stepdaughter” were held to be “circumstances proper for consideration by the jury in determining the question” litigated.
The foregoing authorities are supported by Mr. Schouler, in the fifth edition of his work on Wills, etc., vol. 1, pp. 291, 292, § 242. It is there said:
“So, too, is it admissible to prove that former wills or former testamentary plans embodied a different purpose, as tending to show whether or not the testator has understandingly and of his own free will changed his settled plans in favor of the present arrangement; while the justice or injustice of that arrangement, the natural or unnatural character of the will offered for probate, may open a wide inquiry into family circumstances; for evidence tending to show the relation of a testator to the natural objects of his bounty, the feelings he entertained towards them, and their pecuniary condition, bears upon the issue of undue influence as well as of capacity. Beaubien v. Cicotte, 12 Mich. 459; Staser v. Hogan, 120 Ind. 207, 21 N. E. 911, 22 N. E. 990; Melanefy v. Morrison, 152 Mass. 473, 26 N. E. 36; Crocker v. Chase, 57 Vt. 413; In re Davis’ Will, 73 N. J. Eq. 617, 68 Atl. 756. Evidence showing through what line of relatives, or from what sources, the fortune bequeathed was derived, or favors received, may have a bearing upon *433the natural or unnatural character of the disposition. Glover v. Hayden, 4 Cush. (Mass.) 580; Patterson v. Patterson, 6 Serg. & R. (Pa.) 55; Oxford v. Oxford, 71 S. E. 883, 136 Ga. 589; Smith v. Keller, 98 N. E. 214, 205 N. Y. 39; Dudderar v. Dudderar, 82 Atl. 453, 116 Md. 605 (draft of a former unexecuted will).”
The case of Smith v. Smith, 174 Ala. 205, 56 South. 949, is relied upon by appellant. There the testatrix was the mother of contestants, living with some of her children, and estranged as to other children. Evidence was admitted that at a previous time contestants contributed through their labor to the purchase of the lands of testatrix owned by her at the time of her deáth. This was held to be error on authority of Winston v. Elliott, 169 Ala. 416, 419, 53 South. 750. In the latter ease the holding was that the equitable title to lands of which testator died seized and possessed might not be shown to be in contestants by reason of their contributions to the purchase, nor might the source from which testator obtained the money to buy same be shown. The court said:
“Whether the equitable title belonged to the testator, or to the heirs of his deceased wife, was a question that the probate court properly declined to try, on the contest of the probate of the will. It appears that this very question was pending in another court for trial.
“The court admitted evidence as to the declarations of the testator, made shortly before the execution of the will, that a part of the property disposed of was purchased with money belonging to his first wife, and who was deceased, and who was the mother of contestants, and other declarations that the property belonged to his children, the contestants. The court properly declined to admit declarations of the testator, made long before the execution of the will, and before he had any thought of disposing of the property by will, as to where he obtained the money with which he purchased the property, and as to whether or not he acquired it from his first wife.”
The principle decided was that the equitable interest of contestants in the lands of testator may not be shown. No such inquiry was instituted by the answer of Mrs. Howell, who merely answered as a good housewife similarly situated should be able to answer. Its only tendency was to show the true relation of the parties. It tended to show the mutually dependent' relation of husband and wife, as the latter faithfully did her part in relation to the former, under the circumstances as from time to time were presented, in the course of conduct of their domestic affairs and relations, and in their mutual self-help in discharging the duties of life, and in the accumulation for the exigencies of old age.
In Barnett v. Freeman, 197 Ala. 142, 145, 72 South. 395, 396, it is merely said:
“The fact of how the testatrix acquired her property or how much she may or may not have contributed to the purchase of same by her deceased husband, or the reasons or motives that led her to make the will of 1910, as it was not being contested, had no legitimate bearing upon her mental status when executing the will under contest, which was made five years thereafter.”
The facts recounted in the Barnett-Freeman Case, sujjra, had no tendency to show the relations of the parties litigant at the time of the execution of the later will of 1915, which was being contested on grounds of undue influence. And Johnson v. Johnson, 206 Ala. 523, 91 South. 260, contains merely the statement that there was “no error in denying contestants’ effort to trace the source or sources of the estate left by the testator." (Italics supplied.)
A natural and reasonable construction of this evidence, or reasonable inferences to be drawn therefrom, was merely that the wife was dutiful, industrious, and frugal. Her answer to the question was a story of the domestic harmony that no doubt prevailed in that family, and of the discharge of the respective duties of husband and wife. The evidence in question had not the effect of showing that the wife participated in the purchase or acquisition of specific properties of the husband, nor to point to the source of title to the properties sought to be devised and bequeathed.. It was merely a picture of the domestic relations that existed between the testator and his- wife. The relations of the parties before and at the time of the making of the will were material. This answer of Mrs. Howell was her shorthand rendition of her discharge of her duties to him, and to the full extent of their domestic, affairs and the necessities thereof, in their mutual efforts for existence and the acquisition of property to meet the coming winter of old age; and it tended to show the duty of the husband and his natural inclination to discharge his obligation in making his last provisions for the wife.
In the case of Smith v. Smith, supra, the objectionable evidence for contestants was that “their labor” contributed “to the purchase of the land owned by the mother at the time of her death and at the date of the execution of the instrument” propounded for probate. In the instant case, to use the language of the witness, it was merely that the witness Foshee “could not say positively,” but “was of the opinion” that the wife assisted the husband “in making and accumulating his property” that was not responsive to the question propounded; and that the witness Smith saw Mrs. Howell “most every day at work * * * scrubbing, washing, and cooking,” and which was likewise not responsive to the question. Mrs. Howell’s statement was merely that of the good wife, helping the husband in “every way” she could; taking in sewing a *434part of the time; washing, ironing and scouring; cooking for him early and late; helping him “in every way,” and all the while saving “what we have * * * to help him make what we had.” Such were the declarations of the harmonious relations of the husband and wife (within the rule of Burney v. Torrey, 100 Ala. 157, 14 South. 685, 46 Am. St. Rep. 33), rather than the objectionable inquiry of the source of title condemned in the foregoing authorities. The rule of these cases should not be further extended and applied to a reversal of this case.
The application is overruled.
All the Justices concur.