82 Miss. 1 | Miss. | 1903
delivered the opinion of the court.
The court below properly refused instruction No. 2, asked by the proponents. It is not the law that the testimony of subscribing witnesses is entitled to any greater weight than that of other witnesses with equal opportunities for observation. The
We note the fact that the instruction is taken almost literally from the opinion of the court in Brock v. Luckett's Executors, 4 How. (Miss.), 482. But it is not always safe to take the language of a court arguendo, and use it literally in an instruction. Instructions must be suited to the facts of the particular case.
The court also properly refused instruction No. 3, asked for proponents. It is not the law that insanity of a testator at the time of executing a will is to be proved, where the issue is a purely civil one, beyond all reasonable doubt. The rule to the contrary is too well settled to require citation of authorities, and we disapprove of the ill-advised statement to the contrary in Mullins v. Cottrell, 41 Miss., 291, cited from an old English case in 3 Haggard’s Ecclesiastical Reports.
We think, however, that fatal error was committed by the court in the twelfth instruction for the contestants in telling the jury that they might, in determining whether undue influence had been used, consider “the reasonableness or the unreasonableness of the will,” without qualification or limitation. Here was a will which gave two-thirds of the estate to the only living daughter, one-third to the only living son, and nothing to two sets of grandchildren by two deceased daughters. The jury may well have been misled by the unqualified manner in which
.We have been very earnestly' urged to hold that the court should have given a peremptory instruction for the proponents. The facts in this case are so voluminous, and the value of the
Reversed and remanded.