Evans, C. J.
Hannah Hendershott died in April, 1904. She had never been married, and she left surviving her collateral heirs only. On January 22, 1898, when seventy-one- years of age, she executed the will involved in this controversy. On that date her sister, Mrs. Dunloff, was living in the State of Ohio. This sister had been a helpless invalid for many years, and had been cared for in the home of her daughter, Lydia Spiers, the proponent herein. - The testatrix devised her entire estate, consisting of about $7,000, to the use of her invalid sister and the daughter. On February 23, 1898, the deceased executed another will, and entered into a contract with one Calvin Gruwell whereby she agreed in substance to devise her entire estate to him in consideration of care and support during the remainder of her life. On October 13, 1898, she executed a revocation of all wills theretofore made. In November, 1898, a guardian was appointed for her by the district court of Cedar County, and he instituted litigation on behalf of his ward to set aside the contract with Gru-" well. After the death of the testatrix', the will of February 23, 1898, was offered for probate, but its probate was successfully contested. Thereupon the proponent presented for probate the will now under consideration. The contestants resisted the probate on the alleged ground of undue influence and mental unsoundness, and that the will *450was duly revoked by tbe instrument of Ocober, 1898. Tbe proponent attacked the instrument of revocation on the ground that it was obtained by undue influence, and, by a later amendment, on the ground of mental unsoundness. The verdict of the jury sustained the validity of the will, and the court entered judgment accordingly.
The testimony on behalf of the contestants tended to show that the testatrix began to fail bodily and mentally some time prior to January, 1898; that her disease was senile dementia; that it was progressive, and that she constantly grew worse up to the time of her death. The testimony on behalf of proponents tended to show that prior to January, 1898, she had lost some of her former vigor, bodily and mental, but that she was fully competent on January 22, 1898, to make a will, and that she did make it in accordance with a previous purpose of long standing. It tends also to show that after this date, and especially in the summer of 1898, she failed mentally to a marked degree, and that in October of that year she was mentally unsound. We will consider the errors specified by the appellants in their order in the presentation of argument, as near as may be.
1. Evidence: opSñonerof unsoundness: foundation: discretion. I. The first three errors assigned relate to the opinion of nonexpert witnesses, and we will consider them together. Mrs. Vincent testified for the contestants, and testified to a certain conversation she had with the testatrix wherein the testatrix said that her chickens had been stolen. She also tes# 4 4 tified that she noticed a difference m her conversation and actions, and that her housekeeping was not as careful as it used to be. Contestant’s counsel.put to her the following question, which was ruled out by the court: “Judging from what you say, and from what you saw there, and what you stated of Hannah’s action and conversation, what would you say as to whether she was of sound or unsound mind?” The witness Cogshall, a bank cashier^ was *451permitted to testify to certain conversations with the testatrix wherein she expressed a belief that some of her certificates of deposit had been stolen, and that the witness noticed a difference in her actions. lie was permitted to testify without objection to the effect that he thought she was of unsound mind on February 23, 1898. Thereupon contestants’ counsel put to him the following question: “What do you say as to whether she was of sound or unsound mind during all the time you have testified about in regard to certificates and other matters in the bank?” Also the further question: “From what date would you say she was of unsound mind, in your judgment?” These questions were ruled out as incompetent. The rule is that nonexpert opinion of mental unsoundness must be based strictly upon facts and circumstances, which are first detailed by the witness. In other words, the jury must know the very facts and circumstances upon which the opinion is based. While some latitude of discretion may be permitted to the trial court as to the form of the question, yet if the trial court refuses such latitude, it furnishes no legal ground of complaint.. The question propounded to Mrs. Vincent required her to base her opinion not only upon the facts testified to by her, but also upon what she “saw.” The question, therefore, was not in strict compliance with the rule.
2. Same Some latitude, also, must be permitted to the trial court to’ determine whether the facts testified to by the witness are sufficient to base an opinion of . mental unsoundness thereon. The facts testified to by Mrs. Vincent were very meager for that purpose, and the question was so close that we think it was clearly within the discretion of the trial court to permit or refuse an opinion of mental unsoundness to be based thereon. The questions propounded to the witness Cogshall lost sight entirely of the nonexpert character of the witness, and they were put in the same form as though the witness *452shad been an expert. There was no error, therefore, in the ruling of the court. In re Will of Norman, 72 Iowa, 84; Severin v. Zack, 55 Iowa, 28.
3. wills• mental evidence: photographs, II. The proponent was permitted, over objection, to introduce in evidence a photograph of the deceased which was shown to have been taken shortly after the will question was made. It is argued that this was improper and prejudicial. Some of the witnesses on behalf of contestants had undertaken to describe the appearance of the testatrix, and that she was “thin and poor.” If her physical appearance was a proper subject for consideration, a photograph might naturally be of some aid. Appellants bring to our attention some authorities which look with much disfavor upon photographs as instruments of evidence. Such has not heretofore been the attitude of this court, and we think the authorities in question greatly exaggerate the danger of the use of photographs, and the reasons urged for their rejection do not appeal to us as sound. It is argued that the jury should not be permitted to determine the mental condition of the testatrix from the appearance of her photograph, and this is clearly true. The offer of it did not purport to be for such purpose. Appellants could have asked for an instruction on that feature if they had so desired. It was only one item of evidence bearing upon the physical appearance, and the degree of emaciation. It may be conceded in this case that a photograph had very little function to perform. We are unable, ourselves, to see wherein it could subserve much use to the proponent, and it is clear to us that it could work no prejudice to the contestants. Its admission or rejection was within the fair discretion of the trial court,, and appellants have no legal ground of complaint at this point.
*4534. Evidence: testimony on former trial: transcript. *452III. The contestants offered in evidence a transcript of the testimony of witnesses Michner and McClelland .given on the trial of the contest of the will of February *45323d. It is urged that, inasmuch as the will of the same testatrix was involved in that case, it should be deemed the same proceeding as the present case, and that the transcript of such evidence was therefore admissible. The abstract shows that an objection was sustained to this offer, but it does not disclose to us what the objection was. Assuming a proper objection, it was properly sustained. Appellants rely upon section 245a, Code Supp. 1907. This section renders such transcript admissible “on any retrial of the case or pro'ceeding in which, the same were taken.” Such transcript can be used only in the same case, and upon a “retrial.” Walker v. Walker, 117 Iowa, 609; Wiltsey v. Wiltsey, 122 Iowa, 423. The present contest of the will of January 22d is not a retrial of the contest of the will of February 23d. That.contest went to final judgment. No retrial thereon was permitted. The invalidity of the will of Feb- ■ ruary 23d was determined therein. That question is not involved in this trial. There was no error in this ruling.
5. Wills: mental capacity: limitation of evidence as to time: conclusion of subscribing witness. IV. Errors 6, 7 and 8 are argued together. Proponent put the following question to William Mather, one of the subscribing witnesses: “My question was, do you consider her of sound or unsound mind ? A. I considered her to be' of sound and disposing mind at that time.” Contestants duly objected to both question and answer. Three grounds of objection are urged here. It is urged that the question was in the present tense. This objection is met by the fact that the answer was in the past tense.
It is further urged that no time was fixed. The question indicates a reference to a previous question which is not set forth in the abstract. We think the answer fairly indicates a reference to “that time” the will. as the time of making
It is also urged that the answer was a mere conclusion *454of the witness. It was a conclusion in the sense that it was the opinion of the witness. lie was a subscribing witness, and his opinion, as such, was admissible in support of the mental capacity of the testatrix. Parsons v. Parsons, 66 Iowa, 754; Hertrich v. Hertrich, 114 Iowa, 643.
6.Same: hypothetical question. Appellants urge objection also to the form of hypothetical question put to the witness, Dr. Baker. It is too lengthy to be here quoted. The principal objection urged is that it recited facts not proved. To this it is sufficient to say that there was evidence hat/* • i i tending to prove all of the facts recited, and this is all that is necessary to justify their incorporation in a hypothetical question. If a party incorporates in a hypothetical question facts not proved by the evidence to the satisfaction of the jury, he does so at his peril. If his facts fail in the opinion of the jury, the expert opinion based thereon must fall to the ground. Appellants were entitled to an instruction to that effect, if they had asked-it. The court properly permitted the hypothetical question.
7. Will: undue influence: evidence. V. The trial court withdrew from the consideration of the jury the issue of undue influence, on the ground that the evidence was wholly insufficient to support the allegation. The only evidence which appellants point out in the record which they claim tends to prove undue influence is that of the subscribing witnesses, William and Charles Mather, .to the effect that they vrent to the home of the testatrix more than once, for the purpose of making such will, before the will was finally drawn. William Mather wrote the will at the home of the testatrix. This was in pursuance of a request on the part of the testatrix, made a considerable time previous to the date on which the will was made. She did not want the fact to gain publicity. He took with him his brother, Charles Mather, to be a subscribing witness. They were distant relatives of the testa*455trix. According to their testimony, the will was drawn precisely in accordance with the wishes of the testatrix, and without any advice on their part, except as to the formalities. The beneficiaries named in the will were resident in Ohio, and the Mathers were personally unacquainted with them. So far as appears, they were wholly without motive to obtain the execution of a will in favor of these beneficiaries. There was no other evidence in the case on the issue of undue influence. The trial court was clearly right in withdrawing the issue from the consideration of the jury.
8. Wills: mental unsoundness: evidence. VI. It appears from the record that in November, 1898, one Smith was appointed as guardian for the testatrix. As such guardian he brought an action against Calvin Gruwell to set aside a contract made be- .. tit ...... • tween him and the deceased, which action was prosecuted to a final decree in his favor. The contestants offered in evidence the record of the proceedings in that case,' including the pleadings and judgment. They were first admitted and then stricken, and appellants complain of such ruling. It is urged in argument that the judgment in that case was an adjudication of the mental unsoundness of the testatrix on February 23d. If that be conceded, it avails the appellants nothing. It is not claimed that it was an adjudication of mental unsoundness on January 22d. The proponent joins the contestants in the claim that some time after January 22d the testatrix was mentally unsound. The ruling of the court was therefore proper.
9. same: instructions. VII. Complaint is made of a number of instructions. Appellants attack the instructions in detail, and complain of their omissions. In instruction 5, the trial court instructed the jury that if contestants had shewn mental unsoundness or disease in testatrix on or prior to January 22d, then the burden was upon the proponent to show that the will was executed *456at a time when the testatrix understood the nature of the transaction. It .is argued here that the court failed to explain more in detail what were the requisites of mental capacity to make a will. This question was fully gone into, however, by the court in instructions 8 and 9. Appellants complain of these latter instructions on the alleged ground that they are inconsistent. We do not find them so. Instruction No. 9 does involve some repetition, but the two instructions together are in practical accord with instruction No. 4 requested by the contestants themselves. They fully supply the alleged omissions complained of in instruction No. 5.
10. Willsofeprov£íons: instructions. VIII. In instruction No. 11 the court instructed the jury that, if they found “that there was inequity or inequality in the provisions of the will, you may consider the same determining the mental capacity ^Ie testatrix at the time of the execution Q£ ^ Instruction No. 12 advised the jury, however, that every person of testamentary capacity had a right to make a will as he saw fit, no matter how unusual or unreasonable, and that, if they found that the testatrix in this case had sufficient mental capacity, they would have no right to defeat her will on the ground of unequal provisions. Instruction No. 13 was to the effect that unreasonable provisions are not of themselves sufficient to warrant a finding that deceased was of unsound mind, but all such matters might be considered with other facts and circumstances in determining her mental condition. It is argued that instruction No. 12 eliminated the question of unreasonable provisions from the consideration of the jury, and that it was inconsistent with the other instructions on that subject. The point is not well taken. The three instructions, together, correctly stated the law in that regard. *45711. ' capacity|ul?dfims:hip: presumption.
*456IX. The trial court permitted the contestants to introduce in evidence the record of the guardianship proceed*457ings whereby a guardian was appointed for the testatrix in November, 1898. Instruction No. 14 instructed the jury that they might consider such evidence in determining the mental con-¿itíon of the testatrix at the time of making the will, and at the time of the alleged revocation. Appellants complain of the instruction, in that it failed to state to the jury that the appointment of such guardian was presumptive evidence of mental incapacity to make a will. Granting the contention that the order of the appointment of guardian created a presumption of mental incapacity on the part of the testatrix to make a will, such legal presumption could not relate back to a time antedating the proceeding resulting in such appointment. The appointment of a guardian did create a presumption of mental incapacity as of that time, and the fact was proper for the consideration of the jury on the question of mental incapacity as of the time the will was made, but the legal presumption as such could not relate back to the date of the will.
12. inconsistent findings. X. It is contended that the verdict is without support in the evidence. This contention is twofold: First, it is said that the evidence is conclusive of mental unsoundness of testatrix on January 22, 1898. Second, if this be not so, then it is said that, . . if the testatrix had mental capacity to make the will of January 22d she necessarily had capacity to execute the revocation on October 13th.
Neither contention can be sustained. The real contest in the case was over the question of fact, whether the mental disability of the testatrix had progressed to such a stage on January 22d that she was incapable of making an intelligent and valid will. The evidence was in conflict on that question. There'was sufficient support in the evidence .for a verdict either for or against the validity of the •will, so far as the mental' capacity of the testatrix was *458concerned. The jury found against the contestants on that question. Practically all the testimony on both sides tended to show progressive mental unsoundness up to the date of the death of testatrix.
Contestants put in evidence the record of the proceedings for the appointment of a permanent guardian. These proceedings were commenced about the time the revocation was executed. The final order was entered therein in November of the same year. The probative force of these proceedings necessarily bore more heavily upon the execution of the revocation in October than upon the execution of the will in the January previous. The evidence abundantly justified a finding of a material difference in the mental condition of the testatrix'in October, as compared with January. We can not say, therefore, that the verdict is without support in the evidence, nor that any inconsistency is involved in finding the will valid and the revocation invalid.
We do ncrt overlook the argument of appellants that they never pleaded that the testatrix was of unsound mind at the time she executed the revocation; but that, on the contrary, they pleaded the revocation as a valid instrument. However, the whole tendency of their evidence was that the mental condition of testatrix was bad in January and still worse in October.
The foregoing covers the principal points urged by the appellants as grounds for' reversal. Other and minor errors are argued. What we have already said is decisive of all questions presented, and we will not pursue the argument in further detail. The fighting ground of the case was in the field of fact, and we find nothing in the record which would justify us in interfering with the verdict of the jury.
The judgment below must therefore be affirmed.