Beck, P.-J.
(After stating the foregoing facts.)
Exception is taken to the following charge of the court: “ He may bequeath his entire estate to strangers, to the exclusion of his wife and children, but in such case the will should be closely scrutinized and upon the slightest evidence of aberration of intellect or collusion, or fraud, or any undue influence or unfair dealings, probate should be refused.” This was excepted to upon *617the ground that the portion of the statute quoted has application where the testator bequeaths his estate to strangers, while in the will under consideration the bequests and devises were to his wife and children; that it placed a burden upon the plaintiffs greater than that placed upon them by the law. This charge was error. The testator did not leave his property to strangers, but to his wife and children. And there was evidence introduced to show that the value of the bequests to some of the legatees and devisees was greater than that bequeathed to others. In the case of Credille v. Credille, 123 Ga. 673 (51 S.E. 628" court="Ga." date_filed="1905-08-03" href="https://app.midpage.ai/document/credille-v-credille-5574484?utm_source=webapp" opinion_id="5574484">51 S. E. 628, 107 Am. S. R. 157), a question very similar to that here raised was decided. In that ease it was said by Chief Justice Eish, who rendered the opinion of the court: “ One ground of the motion for a new trial alleges that the court erred in. giving this instruction, the assignment of error being that the facts of the case did not authorize it, and that it tended to prejudice'the case of the propounders in the minds of the jury. We think a new trial should have been granted upon this ground of the motion. The testator did not leave his property to strangers, but to his son, Florence, and his wife and children; and the strict rule, that upon the slightest evidence of aberration of intellect, or collusion, or fraud, or any undue influence or unfair dealing, probate of the will should be refused, which is applicable to cases in which a testator leaves his property to strangers, to the exclusion of his wife and children, should not have been given in charge. The contention that if there were error, it was harmless, as the evidence showed that the testator did not leave his property to'strangers, and therefore the jury would understand that this rule or principle was not applicable to the case before them, is in conflict with the decision of this court in Wetter v. Habersham, 60 Ga. 193.”
Another ground of the motion for new trial contains an exception to the charge of the court on the ground that the court charged the provisions of law contained in sections 3834, 3841, and 3842 of the Civil Code; and the three sections which the court read to the jury as part of his instructions are as follows: § 3834. “ The very nature of a will requires that it should be freely and voluntarily executed; hence, anything which destroys this freedom of volition invalidates a will; such as fraudulent practices upon testator’s fears, affections, or sympathies, duress or any undue in*618fluence, whereby the will of another is substituted for the wishes of the testator.”' § 3841. “ Eccentricity of habit or thought does not deprive a person of power of making a testament; old age, and the weakness of intellect resulting therefrom, does not, of itself, constitute incapacity. If that weakness amounts to imbecility, the testamentary. capacity is gone. In cases of doubt as to the extent of this weakness, the reasonable or unreasonable disposition of his estate should have much weight in the decision of the question.” § 3842. “An incapacity to contract may coexist with a capacity to make a will; the amount of intellect necessary to constitute testamentary capacity is that which is necessary to enable the party to have a decided and rational desire as to the disposition of his property. Iiis desire must be decided, in distinction from the wavering, vacillating fancies of a distempered intellect. It must be rational, in distinction from the ravings of a madman, the silly pratings of an idiot, the childish whims of imbecility, or the excited vagaries of a drunkard.” . If there was any evidence to show that the testator was mentally incapable of making a will, or that it was not freely and voluntarily executed, or that there were any fraudulént practices upon the testator’s fears, affections, etc., then it was not error to give those three sections in charge. They are not excepted to upon the ground that there was no evidence to authorize the charge. The grounds of the caveat allege testamentary incapacity and the exercise of’ undue influence by certain of the legatees.
The other excerpts from the charge excepted to are not erroneous for any reason assigned.
Other grounds of the motion for new trial, in varying forms, raise the contention that the verdict in the case is without evidence to support it and is strongly and decidedly against the weight of evidence. These grounds are not passed upon, as the judgment of the court below refusing a new trial is reversed upon other grounds of the motion and the case remanded for another hearing.
Judgment reversed.
All the Justices concur.