ON PETITION FOR REHEARING. Appellants have filed their petition for a rehearing of this cause. In support thereof they have filed a forceful, insistent and ingenious brief.
Appellants direct the most of their brief to an attack upon instruction No. 9 of the instructions tendered by appellee and read to the jury by the court upon the trial of this cause. 6. The instruction is as follows: "I instruct you further that if you find by a fair preponderance of the evidence in this case that David Talbert, at the time his alleged will was executed, lacked mental capacity necessary to make a will, as defined in these instructions, then it will be your duty to find for the plaintiff in this case. It is not necessary for thetestator to be lacking in all the elements necessary *Page 393 to testamentary capacity in order that his will shall be void. (Our italics.) Complaint is made especially of the portion thereof italicized. The court read to the jury 48 separate instructions, thereby covering the law on each phase of the case. By instruction No. 5 tendered by appellee, and read to the jury, and of which no complaint is made, the jury was told that: "Persons are regarded as having sufficient mental capacity to make a will when they have mind and memory enough to know and grasp, at the time of making the will, the extent and value of their property, the number and names of those who are the natural object of their bounties, their deserts with reference to their conduct towards them, their capacities and necessities, and to retain these facts in their memory until a will is executed." In instruction No. 13 tendered by the appellee and read to the jury, it was told that the court had not attempted to embody all the law in the case in any one instruction, and that in construing any single instruction, it should be considered in connection with all the other instructions given and in harmony therewith. There is no complaint made of this instruction. We said in our original opinion, and still adhere to that statement, that an examination of all the instructions given, when considered together, fails to disclose that they were prejudicial to appellants.
An examination of instruction No. 9 does not warrant the construction which appellants seek to have this court place upon it, nor do the authorities which they cite sustain them. 7. The jury was told that if it found by a fair preponderance of the evidence that, at the time of executing his alleged will, the testator lacked mental capacity, necessary to make a will, as defined in the instructions, then it could find for the plaintiff (appellee). The court was not instructing on the question of unsoundness of mind in general, but was *Page 394 calling attention of the jury specifically to mental capacity to make a will as explained in other instructions. Then the court further explained that it was not necessary for it to find that the testator was lacking in all the elements necessary to testamentary capacity in order to make his will void. That is to say, that if the jury found that the testator was lacking in one or more of the essential elements constituting testamentary capacity, then it would be justified in setting aside the will. It is not the law that the testator may make a valid will if he possesses one, two or three of the essentials of testamentary capacity, but he must possess all of them, they are not stated in the disjunctive but in the conjunctive, and if one of them is lacking to such a degree that it incapacitates him in the making of his will, then the will would not be valid. Bundy v.McKnight, Exr. (1874), 48 Ind. 502; Lowder v. Lowder (1877), 58 Ind. 538; Lamb v. Lamb (1886), 105 Ind. 456, 5 N.E. 171; Cline v. Lindsey (1887), 110 Ind. 337, 11 N.E. 441;McReynolds v. Smith (1909), 172 Ind. 336, 86 N.E. 1009;Crawfordsville Trust Co. v. Ramsey (1912), 178 Ind. 258, 98 N.E. 177. Furthermore, if the appellants desired a more specific instruction, it would undoubtedly have been given if tendered.
Complaint is also made of instruction No. 7, tendered by appellees and read to the jury. We do not think the court committed reversible error in giving this instruction.
In the case of Cline v. Lindsey, supra, Zollars, J., in affirming a case where it was held that an instruction was erroneous, expressed the opinion of our Supreme Court in this language: "It is settled by a long line of decisions by this court, that in civil cases all of the instructions given should be considered together, and in connection with each other, and that if, thus considered, the law of the case is correctly stated, and the case is *Page 395 fairly and intelligently presented to the jury, the judgment will not be reversed because any one of the instructions, taken alone, may not be sufficiently full, or may contain incorrect statements. . .
"The record in no way shows that such insane delusions, etc., if any there were, did not prompt the will and enter into it. If they did, upon appellants' theory of the law, the will was invalid, and they were not injured by the instructions. As we have before said, it must affirmatively appear by the record, not only that error intervened, but also that the party complaining was, in fact or presumably, injured by the error. But it cannot be correctly said, that taking all of the instructions together, the case was placed before the jury as contended by counsel. It is not stated in any instruction, that if the testator was laboring under insane delusions which did not at all prompt, enter into, or affect his will, the will would be invalid."
Petition for rehearing overruled.