The contestant alleged that the testatrix was mentally incapable of making a valid will, and that the will was procured by the duress and undue influence of the proponents. The record presents no evidence which would warrant a jury or a court in finding that the testatrix was mentally incapable of disposing- of her property by will. Her advanced age and physical infirmities when the will was executed were not alone sufficient to prove such total disability mentally. Evidence as to her mental and physical condition at the time the will was made was admissible, however, on the issue of undue influence, for what would not be improper influence over a^ person in sound health might be held improper as to a person in feeble mental and physical condition. The court instructed fully on the issue of actual mental capacity, and therein erred, for the reason we have already stated, and for the further reason that such issue was practially abandoned by the contestant. Stein v. City of Council Bluffs, 72 Iowa, 180. The • instructions were duly excepted to when given, and it was not necessary to again except, or refer thereto in the motion for a new trial. Ellis v. Leonard, 107 Iowa, 487.
The instructions relating to the testatrix’s prejudice against her grandsons, who were not parties to the records were not prejudicial to the proponents, for if the will was the will of the proponents, rather than of the testatrix, it entirely fails. • The will was
The judgment is REVERSED.