#### Rose Furlong, Appellant, v. Thomas Carraher.

1 Undue Influence: evidence Evidence that the son of a testatrix, a woman of advanced years and rather weak of mind, took charge of her farm and the personal property kept thereon, and largely directed the disposition of the same while his mother was living, is not sufficient to show undue influence over the mother in the execution of her will, it not appearing that the son had anything to do with the making of that instrument.

2 Evidence: *Opinions of subscribing witness.*In a contest over a will on the ground of mental incapacity to make a will, it is not competent to ask a subscribing witness what was the testator’s “capacity to make a will,” as such question calls for a decision of the whole case.

3 Same. A question calling for the opinion of a subscribing witness to a will, as to the condition of the testator’s mind, based upon the testimony given by him before the jury, is not competent where-the witness has not testified to any facts tending to prove unsoundness of mind, and this, though a subscribing witness may, if asked, give his belief as to testator’s mind, without stating the grounds of the belief.

4 Use of transcript: *Exclusions waived.*Where, by agreement of parties, the testimony of a witness taken on a former trial is read in evidence, all rulings excluding evidence when offered on the first trial are waived.

*493
      *Appeal from Polh District Court.-*— Hon. C. A. Bishop, Judge.

Saturday, May 20, 1899.

This is a contest over the probate of the will of Bridget Carraher, deceased. The plaintiff and contestant alleges that the testatrix was not of sound and disposing mind at the time the will was executed, and that the same was procured through the undue influene of defendant, who is a son of the deceased. There was a trial to a jury, resulting in a directed verdict for defendant, and plaintiff *appeals.*

— Affirmed.

*J ames Nugent*and *W. A. Connolly*for appellant.

*F. W. Dodson, A. A. McLaughlin,*and *W.*A. *Spurrier*for appellee.

Deemer, J.

*494
      1
      *493— Bridget Carraher was seventy-five years old at the time of her death, which occurred on or about February 9, 1894. Her husband died eight or nine years ago, and the management of the property devolved upon Thomas Carraher, a son. On October 21, 1898, Mrs. Carraher made a will, by which she devised a house and lot to one daughter; two hundred dollars and her bedding and clothing to another; two hundred dollars to plaintiff, who is yet another; and the residue and remainder of her property to defendant, Thomas Carraher, who was also charged with the payment of all just debts and funeral expenses. It. is this will which plaintiff contests. A careful consideration of the evidence leads us to the conclusion that, while the testatrix was feeble in body, and somewhat weak of mind, yet that she had a sound and disposing mind and memeory. Any other conclusion would be without sufficient support in the evidence, and hence the trial court did not’err in holding that *494the deceased bad sufficient mental capacity to enable ber to execute tbe will. Tbe evidence as to undue influence is not sufficient to justify a verdict in favor of contestant. Tbe most that can be said for it is that defendant, who bad charge of tbe farm and tbe personal property kept thereon, largely directed tbe disposition of tbe prop-ery while bis mother was alive, and dictated tbe course that should be pursued with reference thereto. This was largely because be bad charge of tbe farm, and bad conducted tbe business from tbe time be was old enough to look after such matters. There is no evidence whatever tending to show that be bad anything to do- with tbe execution of tbe will, or that be bad any knowledge thereof until some time after it was made. Tbe duty of tbe trial court 5n such cases is well understood, and we are of opinion that there was no error in directing tbe verdict.

2 II. One of tbe subscribing witnesses to tbe will was asked this question: “Q. Now, from what you have testified here before this jury, what do you say as to tbe condition of ber mind at tbe time she executed this will, — whether she was in such mind as to understand tbe effects of tbe will upon her property and ber children? What would be your judgment on that?” It was objected to as incompetent, irrelevant, and immaterial, and for the- further reason that tbe witness has not testified to sufficient facts to entitle him to give an- opinion as to ber mental capacity. The court sustained tbe objection. Again, this same witness was asked: “Q. Now, I renew my question, Mr. Blanchard: From what you have testified to of ber actions and conduct on tbe occasions when she was getting these wills drawn, what do you say as to ber mental capacity to make a will, and to know tbe effects upon ber children and ber property?” To which defendant interposed tbe same objection as theretofore made to a similar question to this witness. This objection was also sustained. Tbe last question was clearly incompetent, for tbe reason that the witness is called upon to decide *495tbe whole case. *Pelamourges v.*Clark, 9 Iowa, 1; Rogers Expert Testimony, p. 41. Tbe first question does not call for tbe condition of tbe testatrix’s mind at tbe time tbe will was executed, based upon tbe fact that witness was one of tbe subscribing witnesses, but asks for bis opinion as to tbe condition of ber mind, based on tbe testimony given 3 by bim before tbe jury. As be bad not stated any facts tending to disclose unsoundness of mind, tbe court correctly sustained tbe objection. Had tbe witness been asked tbe simple question as to tbe testatrix’s condition of mind at tbe time tbe will was executed, it should have been answered, for it is a well-settled general rule that a subscribing witness may state bis belief as to tbe testatrix’s condition of mind without first showing grounds on which that belief is based. Scbouler Wills (2d ed.), section 181; *Parsons v.*Parsons, 66 Iowa, 1.54; Greenleaf Evidence, section 4 440. Tbe testimony of one John M. Day, another subscribing witness, given upon a former trial, was, by agreement, read in evidence on this trial. He was asked a question somewhat similar to that propounded to tbe other witness. Tbe court trying tbe case when tbe evidence was taken sustained tbe objection. What has already been said answers tbe complaint made of tbe ruling on this evidence. There is this additional thought, however which is conclusive, and that is that tbe evidence of Day, as taken upon tbe former trial, was read by agreement of tbe parties on this trial. Under this agreement, all rulings excluding evidence were, of necessity, waived. There was no way in which tbe rulings made at tbe prior trial could be corrected, for tbe witness was not present to give evidence. We have already said that tbe trial court was right in directing tbe verdict, and need only add that tbe evidence adduced, viewed tin its strongest light, does no more than create a suspicion of undue influence. It is not sufficient to justify a verdict for tbe contestant. Tbe judgment is therefore AKFiemed.