Aсtion to contest the will of ' Gr. M. Stephens, deceased. The petition contains two grounds of contest, mental incаpacity and undue influence. The issue of undue influence was withdrawn from the jury, and the cause was submitted on the issue of mental incapacity. The verdict and júdgment below sustained the will and contestant appealed.
The sole contеntion on appeal is that the court erred in giving defendants’ Instruction No.' 2.
The instruction reads as follows:
“The court instructs the jury that the words ‘sound and disposing mind and memoiy’ as used in these instructions, mean the ability to know and comprehend what one is doing and the general nature аnd éxtent of one’s property and the persons who reasonably come within the range of his bounty; and therefore, if the jury believe *250 and find from the evidence that G. M. Stephens, signed the- paper read in evidence as his last will, and that at thе time of doing so he had sufficient mind and memory to know that. he was disposing of his property by will, to whom he Avas giving it, and who camе reasonably within the range of his bounty, and the general value, nature, and character of his property, without the aid- of any other person, then he was of sound and disposing mind and memory; but by this is not meant the testator must, at the time of execution оf the will, be, able without aid or assistance to recall each item of his property, or the governmental desсription of each tract and parcel of land which he may oavii ; but in' that respect it. is only required that he have a. general independent, individual knowledge of these matters. And in this connection you are further instructed that old agе, physical weakness or imperfect memory caused by sickness or old age, or forgetfulness of the names of persons he has known, will not be sufficient to establish incompetency or to invalidate the will, provided/ you find that the deсeased had sufficient intelligence to fulfill the above definitions.” (Italics ours.)
Whether or not this instruction correctly defines “sound and disрosing mind and memory" we are not called upon to determine. Both parties assume that it does and we Avill so treat it. The only complaint made against the instruction is that the part thereof which we have italicized is misleading, argumentative and a comment on the evidence.
In answer to the complaint .made against this instruction respondents say that the instruction Avas taken from Andrew v. Linebaugh,
The instruction under review first defines, “-sound and .disposing mind and memory” then tells the jury that old age, physical weakness or imperfect memory caused by sickness or old age, or forgetfulness of the names of persons he has known, will not be sufficient to establish incompetency or to invalidate the Avill, provided the jury find that deceased .had sufficient intelligence to fulfill the definition of a “sound mind” as defined in other parts of the instruction. Such аn instruction is clearly argumentative and a com-" ipent on -the evidence. Besides it is • misleading in, that it is calculated tо cause the jury to believe that it could not consider old age,
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physical weakness, imperfect memory, sicknеss, etc., in determining whether or not deceased had a “sound and disposing mind and memory” as defined in other parts- of the instruсtion. At least the instruction was calculated to minimize the effect of plaintiff’s evidence. Similar instructions have been condemned by this court en banc for the same reasons which now prompt us to hold the instruction in the instant case рrejudicially erroneous. In Post v. Bailey,
“This is a correct statement of an abstract rule of law. As embodied in the instruction, however, its effect was to minimize, if not wholly destroy, the effect of plaintiff’s evidence. The issue as submitted under plaintiff’s рrincipal instruction was whether the testator ‘had sufficient understanding to comprehend the nature of the transactiоn that he was engaged in, the value and extent of his property, the number and names of the person who were the nаtural objects of his bounty, and their deserts with reference to their conduct and treatment of him, and had active mind and mеmory enough to retain all such facts in his mind without the aid of others.’ Now practically all the evidence offered by рlaintiff for the purpose of showing that the testator did not have such a mind and memory dealt in some way with his ‘old age, physical weakness, or imperfect memory caused by sickness or old age,’ etc. Yet the court told the jury in effect thаt all of these things signified nothing.”
The same ruling was made in a banc opinion in Hartman v. Hartman,
Respondents contend that the vеrdict and judgment was for the right party and for that reason the case should not be reversed even though the court should hold the instruction to be erroneous.
Respondents, defendants below, did not seek to withdraw the issue of mental incapаcity from the jury, but voluntarily requested instructions submitting that question to the jury, thereby conceding that the evidence touching that questiоn was substantial, and made that issue one of fact to be determined by the jury. The rule invoked can have no appliсation where, as here, the instruction assailed was calculated to minimize, if not destroy, the effect of plaintiff’s еvidence on the vital and only issue submitted to the jury.
For the error in defendants’ Instruction No. 2 the judgment should be reversed and cause remanded. It is so ordered.