The opinion of the court was delivered, May 19 th 1870, by-
Agnew, J.The looseness with which feigned issues are so often formed is a source of frequent regret, which we had occasion to notice last year in a case from Luzerne county. This case is another instance. The only issue presented by the pleadings is whether the writing was the last will and testament of Christian Bitner. But this presented no issue of fact. It might not have been his last will for various reasons, of law and fact, as want of due execution, revocation, duress, insanity, &c. Such an issue withdraws the will from the exclusive jurisdiction of the register *361or Register’s Court, and commits it to the Common Pleas which has no jurisdiction except to try issues of fact only sent to it for a trial by jury. The register’s precept in this case sent two issues of fact to be tried, to wit: the insanity of the testator and the undue influence of the three sons. The defendants should have1 replied these matters to the plaintiffs’ declaration so as to raise the direct issues of fact sent to be tried. The Court of Common Pleas and the jury would then have had the issue directly in view.
The plaintiffs asked the court to charge that there was no evidence of undue influence on part of the three sons, and the court afflrmed their point. The insanity of the testator was therefore the only question left to be decided by the jury. The unsoundness of mind which was set up to destroy the will was not total insanity, but a special form of it, which, while it left the mind of the testator capable of many acts of apparent soundness, led him to form erroneous views of the character and conduct of his sons Joseph, Henry and Jacob, resulting in an insane delusion as to them, entering into the composition of his will. In order to understand the course of the trial, and solve the errors assigned, it is necessary to notice the allegations of fact constituting what has been termed the theory of the cause. It was asserted, and proof was given to show, that Christian Bitner had been insane at two periods of his life beginning in 1838 and in 1848, and that this insanity had developed an unnatural and disturbed condition of mind which had changed his character, and affected his conduct to such an extent, as to evidence a delusion of mind in relation to the three sons named, and produce a causeless antipathy toward them.
If a mild, amiable, quiet and modest man should become insane, and afterwards, though recovered so far as to transact his own business with apparent discretion and judgment, and in many things to appear to be in his right mind, yet should evidence a total revolution in his character, and become irritable, suspicious and harsh toward his children or some of them, become exceedingly vulgar and obscene in his conversations, outraging all sense of decency in the presence of his family and of strangers, and should exhibit the most foul desires and disgusting lechery toward his own daughters and other females; it would be difficult to ascribe such a revolution of character and such conduct otherwise than to the precedent insanity which had thus developed an unnatural, morbid and unsound condition of mind. Such an unsoundness would not be inconsistent with an apparent right use of the faculties in many respects, and yet might strongly influence his conduct toward those against whom he exhibited these new traits of character. In an inquiry into an unsoundness of this kind, it is evident that the testimony ought not to be confined within a very narrow range, but that all those things which tended to show that the character of the man had changed since his attack of insanity *362should be received in evidence. Hence in the case of one who had been mild, amiable and modest, irritability, harshness, passion, suspiciousness, vulgarity, obscenity and openly avowed lechery would all tend to the same point in the proof that his insanity had left the mind in an unsound and unnatural condition. These remarks dispose of the first, third and fourth bills of exception, which are not sustained. As to the second, it is only necessary to say that the testimony of Dr. Suesserott exhibits such an acquaintance with the testator, his habits, conduct and conversations for a long period of years, as to make his opinion competent to be given to the jury. The fifth error needs no comment; it was not error to reject the declarations of the testator of his own charities. From what- has been said already as to the only issue in this cause, the questions of undue influence, revocation and the effect of setting aside the will were not before the jury, and therefore the answers to the 1st, 2d and 3d points of the plaintiffs were immaterial.
The fact that a man’s will is unaccountably contrary to the common sense of the country is not sufficient, ipso facto, to set it aside. The testator’s will is the law of his property. Rut certainly that which outrages common feeling, and displays a want of ordinary natural affection, is a fact to be considered along with other evidence on the question of unsoundness or delusion of mind. The assignments of error to the plaintiffs’ fourth point and the defendants’ fourth point are not sustained. We discover no such inconsistency in the answer to the plaintiffs’ fifth point as could injure the plaintiffs. The second clause of the answer, to wit: “ if Mr. Bitner was not the victim of any delusion,” was evidently said by way of recalling the attention of the jury to the true question of fact before them. And if we should examine the answer critically, an intelligent consciousness of the nature and effect of an act, is not plainly inconsistent with the existence of a delusion leading to and producing the act; so as to leave the jury in doubt of the meaning of the court. Christian Bitner might have been perfectly conscious of the nature of his testamentary provision, and aware that its effect was to disinherit the three sons, and yet laboring under a delusion of fact as to their conduct, which led him to consider and do the thing he contemplated, consciously and with intelligence.
The answer to the sixth point of the plaintiffs is disposed of by what we have already said upon the questions of evidence. We discover no error in it.
The plaintiffs’ seventh and eighth points required the court to say in case the facts were found as stated in the point, that the will was not void and must stand. But this the court could not do without narrowing the question of insanity to the precise state of the facts stated in the point. The field of the facts was broader and embraced questions of actual unsoundness of mind and per*363verted feelings and affections, which may have shared in the production of the will, even though Christian Bitner might have had the grounds of fact influencing his testamentary disposition as stated in the points. We cannot say, therefore, that the court erred in the qualifications introduced into the answers^' especially in view of the explicit and clear instructions contained in other parts of the charge.
As to the remaining assignments of error to the answers to the defendants’ points, and to the general charge, we need say nothing more. Almost all the judge said appears to have been excepted to, perhaps with the view of bringing to our notice the entire spirit and scope of the charge. -But although the mind' of the judge appears to have inclined strongly to the belief that the testator was influenced by morbid feelings, and was unjust to his three sons, Joseph, Henry and Jacob, we are not able to discover from the charge that the case was presented to the jury in such an unfair and one-sided manner as to mislead them. Very strong expressions of opinion on the facts are tolerated, indeed sometimes may be necessary. Even entire accuracy in the statement of facts may not be attained; yet, when the case is left fully and clearly to the jury under instructions not calculated to mislead, we are not in the habit of reversing. Finding no material error in the record, the Judgment is affirmed.