#### Keating’s Appeal. [McCullough’s Estate.]

On the hearing of a petition for an issue devisavit vel non, under ? 41 of the Act of March 15, 1832, P. L. 146, the contestants offered evidence to show that the decedent, when he executed the alleged will, was over eighty years of age, and, both before and after the execution of the instrument, was very intemperate, almost daily intoxicated ; subject to hallucinations ; forgot the condition of his wife who was an invalid ; on one occasion denied that he had a sister, from whom he received a letter ; failed to recognize his nurse ; desired to sell valuable real estate to the stable boy, insisting that the boy had abundance of means with which to purchase, when in fact he had no money or property whatever ; denied the ownership of real estate belonging to him; allowed valuable securities to lie around loose, when previously he was noted for his vigilance and strict business habits ; and insisted that he had a large sum of money in bank when in fact he had only about one-third of that sum. The evidence of the contestants did not connect these acts with the execution of the instrument, and further showed that the decedent had, for a long time, had under consideration the making of the will, and numerous facts were given showing an intelligent comprehension of the matters embraced by the alleged will. The court refused an issue. *Held,*not to be error.

*Query,*whether a question, put to an expert witness, based upon a hypothetical case, which contains only a partial statement of the material facts embodied in the testimony, should be excluded, on a hearing in the orphans’ court.

In this case, the burden of proof was not shifted so as to make it necessary to offer evidence of the absence of undue influence, by the fact that the decedent made a stranger in blood, who occupied a confidential relation to him, *5his executor, and allowed him *$1,000*a year for twenty years, for his services, in addition to the customary commissions.

Nov. 1, 1888.

Appeal, No. 29, Oct T. 1888, of Catharine Keating et al., heirs of Michael McCullough, Jr., deceased, from a decree of the O. C. Allegheny Co., dismissing an' appeal from the Register of Wills, and dismissing a petition for an issue devisavit vel non, at Sept. T. 1887, No. 260.

The evidence, as it appeared from the testimony taken at the hearing upoh the appeal before Hawkins, P. J., appears by the opinion of the court below, and by the hypothetical case as corrected by the amended hypothetical case.

At the hearing, appellants offered to ask an expert witness the following hypothetical question:

“ Q. I ask your attention to a hypothetical case, which I will submit, as follows : A man 83 years of age, predisposed to mental disorder, of exceedingly nervous temperament and ungovernable temper, licentious practices and marked eccentricities, an imbiber of wine and beer in excessive amounts, the latter part of his life, was taken ill, three years before his death, with symptoms pointing to chronic diseases of the livér; after six weeks he partially recovers, but begins to take whisky regularly, and in large quantities, continuing it till death ; the excessive use of beer and wine, also, continuing until near the time of death; and, also, commences the use of opium in unknown quantities, ostensibly for the paroxysms of pain. From the constant use of alcohol, he is daily found deeply intoxicated. He takes food most sparingly, and sleeps very irregularly. The uninterrupted ingestion of alcohol predisposing its characteristic changes, sets up a morbid change in the nervous system, and particularly in the brain, as evidenced by the change of character and passion of the man. He becomes more irritable, flies into a rage on the slightest provocation, or without any, and heaps curses upon any one who may be around. He swears at a deceased priest, who had been his friend, and declares his intention of tramping his ghost, which delusion he attempts to carry into effect, storming around for upwards of an hour. 'When a sister, with her daughter and children, comes 50 miles to visit him, he gets into a terrible temper, and jumping out of bed at 10 o’clock at night, declares he will put her out of the house and is restrained from doing so with great difficulty. He afterwards makes them beneficiaries under his will ; bequeathing to herself and family a large portion of his estate. On another occasion, on being visited by the same sister and nieces, he refuses to see them; becomes profane and storms, cursing, swearing and denouncing each and every one of the children, and the sister, who are the beneficiaries in the will, and whom he never after-wards saw or communicated with. He threatens to burn the house and all within it. He is frequently seen gesticulating, soliloquizing and laughing, on the street cars, and at his house, and is seen reading newspapers upside-down. He insists that the family cow is *6not giving a sufficient quantity of milk, and demands that she shall be shot. This delusion lasts a week or more.

“ Upon the visit of a favorite niece, a sister of mercy, who, from childhood, had been a constant visitor at his house, and had always been treated by him with the greatest respect and affection, previously, he addresses her profanely and damns her prayers, rejecting all offers of sympathy and affection.

“ On a visit of another niece, a sister of charity, he refuses, absolutely, to see her, and makes outcries of indignation so as to attract the whole household. This person he afterwards makes a considerable beneficiary in his will, though he never saw her after-wards.

“ Pie turns on the natural gas in his room, allowing it to roar and escape, without lighting it.

“ On receipt of a letter from his sister, six weeks prior to his death, about February 21st, he totally foi'gets her existence, and denies that he has such a sister.

“ He speaks, on several occasions, about his wife, asking why she did not come to him, forgetting that she was totally paralyzed and helpless, in an adjoining room, and that she had been in that condition more than a year.

“ He fails to recognize his nurses, mistaking them for other people.

“Starts to go out, on a cold winter morning without shoes, or buttoning up his coats.

■“ Desires to sell valuable properties to the stable boy, insisting that said boy had abundance of means with which to purchase, when, in fact, the boy had no money or property, whatever.

“ In conversation with his business partner, forgets and denies the ownership of a valuable piece of real estate, belonging to him.

“ On receipt of two negotiable notes, for the purchase money of the crucible works, sold to his business partners, said notes being for *$26,000*or 27,000 each, he forgets the existence of said notes, permits them to lie loosely around his chamber, although he has previously been noted for his vigilance, and strict business habits and system. Also, forgets the existence of a note, in favor of his invalid wife, for a large amount.

“ On receiving a fresh pitcher of water from the pump, he persists that it is from the boiling kettle.

“ He insists that he has $250,000 in the Bank of Pittsburg, when, in truth, he has but one-fourth that amount.

“ He imagines that the breathing of his wife, in the next room at midnight, is that of Mr. Arensberg, his partner, who really was not in the house at the time.

“ Through his last sickness, the prevailing delusion is, that he is caressing and fondling a baby in his arms, and that he sees it before him.

*7“ He often sits before the fire, laughs and talks to himself, and squares off with his fists at imaginary beings.

“ Immediately after his rude treatment of relatives and friends, he indulges in foolish laughter thereat.

“ Upwards of a month preceding his death, a marked change sets in. From being abusive, austere and terrorizing his whole household, he becomes childish, submissive and tractable.

“ Fi'om being neat, tidy, clean and exacting in his habits, he becomes uncleanly, forgetting to wash his hands for a week or 10 days.

“ Instead of eating his food, has to be fed by the nurse, childishly asking her to share the food with him.

“ From being arbitrary and intolerant of the presence of the nurse or any person in his sick chamber, either day or night as company, or in attendance, and especially denying permission to any one to sit up with him, to minister to him during the night during his sickness, when actually necessary, he submits to the presence of attendants and acquiesces in their administration, and allows them, through indifference, to sit up at nights in his room.

“Judging from your experience and knowledge in such cases, do the facts and symptoms detailed in the hypothetical case indicate a sound or unsound mind?”

Objected to, for three reasons. 1st. Because no ground has been laid for the introduction of secondary evidence with respect to the competency of Michael McCullough on March 5, 1887.

2. Because the proposed hypothetical question contains allegations as to facts of which there is no testimony nor a pretense of it.

3. Because the hypothetical question omits and makes no reference to material facts that have been testified to in connection with the issue.

4. The inquiry in this case is not as to whether or not Michael McCullough had a sound or unsound mind; and as incompetent and irrelevant generally.

Objections sustained. Exception [2.]

Appellants then proposed to submit the same hypothetical case, and ask additionally this question : “ Please state whether, in your opinion, the person, in the condition described in the .hypothetical case, was sane or insane.” Objected to for the same reasons as before. Objections sustained. Exception [3].

Appellants then proposed also to ask the question whether or not the person described in the hypothetical case was competent to make a will or to do any act requiring memory, judgment and deliberation. Objected to as before. Objections sustained. Exception [4].

Appellants then made the following proposition:

“ We propose to amend the hypothetical case. First, as to the third paragraph: The sentence, ‘ from the constant use of alcohol, he is daily found deeply intoxicated,’ we make to read, ‘ from the constant use of alcohol he is almost daily found intoxicated.’ And then to strike out the second sentence after that, to wit, ‘ The uninterrupted *8ingestion of alcohol predisposing its characteristic changes, sets up a morbid change in the nervous system, and particularly in the brain, as evidenced by the change of character and passion of the man.’ In the paragraph referring to the amount of money he deposited in the Bank of Pittsburgh, we change the words ‘one-fourth’ to ‘ one-third,’ and we add to the hypothetical question this, ‘.and is found, at least a month previous to his death, to be in a serious condition, suffering from sorosis of the liver.’

“ And then we propose to ask this expert witness on the stand the same questions that were asked consequent upon the hypothetical case in its condition before these changes.”

Objected to for the same reasons as before. Objections sustained. Exception [5.]

Appellants then proposed to ask an additional question, based upon the hypothetical statement, to wit, whether or not the party described had, in his opinion, organic disease of the brain.

Objected to for the same reasons as before. Objections sustained. Exception [6.]

Another witness being on the stand, the following offer was made:

By Mr. McClung, for contestants : “ We propose to prove by the witness on the stand [Mrs. Ann McCullough, widow of Charles B. McCullough], and others, that, some eighteen or twenty years ago, Mr. Charles B. McCullough having failed in business and being unfortunate in his habits, his family was practically taken charge of by Michael McCullough, the decedent, his half brother; that they were placed in a house of Michael McCullough, to which the witness has referred and which she spoke of at times as her house, but gave her no deed or other writing which secured her title to it; that she, with her family, was permitted, for fifteen or sixteen years, to live .in that house, free of rent; that, in addition, the family was largely, almost wholly, provided for by Mr. McCullough, his bounty being the chief and almost only source of support; that the relations between the families were intimate and friendly, and that, upon his death, this family was left entirely without means of support and in imminent prospects of absolute want. To be accompanied with evidence of the fact that Michael McCullough, Jr., some years before his death, objected to his wife making any provision in her will for this family, saying that he proposed to provide for his own relations.’.’

Objected to. First, because, with respect to the issue now being tried, the testimony offered is both incompetent and irrelevant; and, second, because, in law, the witness is incompetent to testify with respect to any gift from Michael McCullough, deceased.

By Mr. McClung: “ We do not propose to show a gift.”

By Mr. Dalzell, for proponents: “ You have an action of ejectment pending for this house? ”

By Mr. McClung: “ We propose to add that there is an action of ejectment by these trustees for this very house.”

*9By the Court: “Objection sustained. It might be competent, taken with evidence of undue influence.”

By Mr. McClung: “ I prefer to put the offer in a little more general form so as to be certain to have your Honor’s idea of it, and I propose simply to prove that the relations of this lady’s family to Michael McCullough were intimate and friendly up until the time of his death, for the purpose of enabling the court to judge as to the naturalness or unnaturalness of the provisions contained in this will.”

Objected to as incompetent and irrelevant.

By the Court: “ Is there any evidence that there were not friendly relations ? Would not the presumption be that they were friendly ? ”

By Mr. McClung: “ Then I will add to the offer also that we propose to prove that this family were actually dependant upon the bounty of Mr. McCullough and that he had for years prior to his death supplied their wants — educated the children and looked after them generally.”

By Mr. Dalzell: “The same objections as before.”

By the Court: “ I think it is not competent.” Exception [7].

The evidence admitted tended to establish the facts asserted in the hypothetical case and the amended hypothetical case, as well as those stated in the opinion of the court below.

The Court dismissed the appeal, in the following opinion, by Hawkins, P. J. :

“ This proceeding was instituted on behalf of certain next of kin to contest the validity of an instrument of writing dated March 5, 1887, purporting to be the last will of Michael McCullough, deceased, on the alleged grounds of, I, undue influence, 2, fraud, and, 3, testamentary incapacity. The contestants admitted the execution and thereupon assumed the burthen of proof. They offered no evidence to sustain their allegation of undue influence or fraud, and that offered in reference to testamentary incapacity is, in the opinion of this court, insufficient.

“ Testamentary capacity was thus defined by the supreme court in a recent case, Wilson *v.*Mitchell, 101 Pa. 495 : ‘To sum up the whole in the most simple and intelligent form — were his testator’s mind and memory sufficiently sound to enable him to know, and to understand the business in which he was engaged at the time when he executed his will? ’ [Stevens *v.*Vancleve, 4 Wash. C. C. 262 : Lowe *v.*Williamson, 1 Green Ch. 82.] Neither age, nor sickness, nor extreme distress or debility of body will affect the capacity to make a will if sufficient intelligence remains. The failure of memory is not sufficient to create incapacity, unless it be total, or extend to the immediate family or property. The want of recollection of names is one of the earliest symptoms of the decay of the memory ; but this failure may exist in a very great degree, and yet ‘ the *10solid power of the understanding ’ remain. Van Alst *v.*Hunter, 5 Johns. Ch. 148. ‘Very often a disposing mind needs very little power of reflection because it has but little to reflect about. The work of reflection has been performed before, and, when the time of making the will comes, memory alone is wanted in order to dictate the results. Wills, written in extremis, are not necessarily, and perhaps not often', first thought out and arranged then. And though the testator’s mind might be very dull when called to subjects in which he took no interest, it might not be at all so on the subject of his will, which, it is very apparent, he was quite desirous of making. He might take no interest in medical attendance which he regarded as hopeless, and yet wake up fully to the performance of the duty of making his will. If, when he dictated the will, his mind and memory were active enough to enable him to understand and direct the business in which he was engaged, he was not intestate. That witnesses should differ very widely in their opinion of a testator’s competency, is not at all surprising, and, generally, this is no impeachment of the honesty of any of them. Much of this difference arises from the fact that the witnesses do not measure testamentary capacity by the same standard. Few of them either know the legal standard, or have taken interest enough in the question to settle any definite standard in their own mind, and hence their opinions are necessarily changeable, and are very apt, even unconsciously, to take their direction from the interest felt in the persons litigating the question: ’ McMasters *v.*Blair, 29 Pa. 298. ‘A witness,’ said Mr. Justice Paxson, in Eddey’s Ap., 109 Pa. 406, ‘ must know what testamentary capacity means before we can attach any weight to his testimony, else no man’s will would be safe.’ In Wilson *v.*Mitchell, supra, ‘ Dougall [the testator] had lived over one hundred years before he made the will, and his physical and mental weakness and defective memory were in striking contrast with their strength in the meridian of his life. He was blind, not deaf, but healing impaired; his mind acted slowly; he was forgetful of recent events, especially of names, and repeated questions in conversation; and sometimes, when aroused from sleep or slumber, would seem bewildered.’ He gave half of his estate to strangers in blood. On the trial, numerous witnesses testified that he was, in their opinion, incapable of making a will. The supreme court held that the court below had' rightly withdrawn the question of testamentary capacity from the jury because ‘a case should not be submitted where the evidence is so insufficient that the court ought not to sustain the verdict.’

“ This statement and illustration are deemed sufficient to show the measure of testamentary capacity adopted by the supreme court, and by which the present controversy is to be determined.

“ Michael McCullough died on March 22, 1887, past four score years of age, leaving a widow, but no legitimate lineal heirs, and an estate valued at the sum of $485,777.45, of which $266,977.45 was *11personal property, and $218,200 was real estate, including about 80 houses. He was a man of strong will, nervous temperament, and given to occasional violent outbursts of passion. Until the beginning of his last illness, January 8, 1887, he went, with rare exceptions, to business before 7 o’clock in the morning; was scrupulously neat about his person, was a regular drinker, and, latterly, was given to talking and gesticulating to himself when alone. This much seems to be conceded.

“ The admission, by contestants, of the execution of the paper propounded as the last will of Mr. McCullough raised a presumption of his testamentary capacity, and shifted on them the burthen of making out such a case as would justify a verdict in their favor. If they failed in this, an issue would be useless and must be refused. That these contestants have failed to make out such a case as ought to be submitted to a jury, seems clear. They offered a large amount of testimony to show that, by reason of long continued and excessive use of intoxicants and narcotics, Mr. McCullough had become incapacitated from making a will at the date of the paper propounded here. Admit the truth of their testimony in regard to the acts of Mr. McCullough, his excessive use of intoxicants and narcotics, his stupor, his flightiness and his violent outbursts of passion, still there runs all through it, not only immediately before and after, but on the very date of executing this paper, indubitable evidence of testamentary capacity. This will readily be seen from the following extracts:

“ Dr. McCann, who was the consulting physician during McCullough’s last illness, testified that, although Mr. McCullough was in a stupor on February 16, he ‘seemed to answer questions intelligently’ on the 18th. Miss Egan, who had been Mrs. McCullough’s companion and housekeeper for 20 years prior to Mr. McCullough’s death, and was one of the two witnesses upon whom contestants mainly relied, testified: ‘Mr. McCullough had spoken frequently about the will of February 20, 1887, and told me those gentlemen [presumably his attorney and his witnesses] were coming, and told me to get a little table and some writing materials, and came into the parlor a couple of times to ask me the names of some of Mrs. Craite’s daughters — the one that was in the convent and another — and made no secret of his will.’ Being examined in reference to the execution of the will of March 5th, she said that she did not know it then, but ‘ supposed it was something of that kind, of course;’ and when Mr. McCullough and counsel came out of the room and told her what provision had been made for her, expressed her thankfulness and made no suggestion of incapacity on the part of Mr. McCullough. In reference to an interview on March 17, 1887, with Mr. McCullough, she testified: ‘Well, says I, have you made any provision for me ? and he said, I have not, but I intend to. Well, says I, you are a sick man and what is the use putting it off. If I get nothing except what is in Mrs. McCullough’s will I will be *12on the street; and he said, that is so, Mary; I am glad you reminded me. And now, he says, when Mr. Arensberg comes you bring him in and you come in with him; and I did so when Mr. Arensberg came; that was the next Friday evening. But I asked Mr. McCullough, says I, you have been talking to me for a long time about a piece of property on Penn street, and, says I, you seemed to dwell on it so much, and I thought you intended giving it to me, says I; if it made no difference to you I would rather have the property than the money; and he says, that is so, Mary, that will be all right.’ When Arensberg came, the matter was discussed, and in the course of it Miss Egan inquired about the disposition of the homestead. Mr. McCullough said, ‘ Mary, I can’t give you two houses.’ Mr. Arensberg finally suggested an annuity in place of the house, which was agreed to by Miss Egan, and Mr. McCullough said: ‘ Arensberg, will you have Kerr [his attorney] here at seven in the morning? I will get up and make another will.’ On the next evening, the 18th, Mr. Kerr came, and a check was signed by Mr. McCullough upon which Miss Eagan subsequently received $5,000. On the 19th, Miss Eagan reminded Mr. McCullough of a promise which he had made Father Gregory, of $10,000 for.a school. Mr. McCullough expressed his willingness to do so, and signed a check for that amount in favor of Father Gregory, with a comprehension, as Miss Egan testifies, of the act. The next evening this check was destroyed, with Mr. McCullough’s consent, and another substituted, upon which both Miss Egan and Miss Devlin, his nurse, were witnesses. Miss Egan testified that she had always said that, when Mr. McCullough would get his mind on one subject, he would talk rationally, but his mind would wander off; and that, on March 17th, he was still in condition to make disposition of his affairs when his attention was directed to them.

“ Miss Devlin was the other witness relied on by contestants. She was a professional nurse and attended Mr. McCullough in his last illness. She testified that, in February and after she gave Mr. McCullough morphine pills whenever he asked for them, without the prescription or knowledge of the attending physician, thus, being a professional nurse, showing either gross carelessness or a belief in his intelligence ; that, in the middle of February ‘ she could advise him, talk to him on anything;’ that, about March 1, after Mr. Arensberg had made a visit, Mr. McCullough had said, ‘the other day, when Arensberg was here, he offered me $75,000 for the crucible works [in which he was a partner], and to-day he says I am to get only $50,000 ’ [which he afterwards got]; that, after Mr. Kerr and the witnesses to the will of March 5 had left, Mr. McCullough had told her he had just made a will; that, on March 18, she said to Mr. McCullough, ‘You promised Father Gregory $10,000.’ He said,‘Did you hear it?’ ‘I said, “Yes.” “Well,” he said, “ remind me of that,” and in the morning I said to Mr. McCullough, “ I promised to remind you of a check you promised *13to sign for Father Gregory,” and he thought awhile and said, “ Did you hear me promise thát? ” I said “ Yes.” So, he said, “ Where is Mr. Cushing ? ” [one of the witnesses to his will.] So I told Miss Egan to send for Mr. Cushing, and she did. Mr. Cushing wrote the check and I signed the check [as witness], thinking that the man was competent to sign a check.’ Miss Devlin further testified that, within two or three days of Mr. McCullough’s death, he had signed a check in her favor for $1,000, upon which she received the money, and that, since his death, she had repeatedly and falsely declared that he was ‘ sensible to the last.’,

“John Kennedy,the coachman,testified that,on March9,1887, four days after the making of the will, Mr. McCullough had ordered the carriage; had directed witness to drive him to the city, up Grant street to Washington; had gotten out of the carriage and directed witness to wait for him; had gone three squares alone, and subsequently sent for witness to bring the carriage and take him home.

“ These facts show at least an intelligent comprehension of the business in hand on the part of Mr. McCullough. They occurred before and after the execution of the will, and they constitute part of contestant’s case. There is no competent evidence tending to show that Mr. McCullough did not have testamentary capacity at the date when the will was executed. Miss Egan does not furnish any evidence of the fact, if it existed, although she had access to the room before and was actually in the room immediately after the execution. Miss Devlin also had access before and after the execution, but furnishes no competent evidence from which testamentary incapacity can be inferred. No other witnesses were produced who claimed to have had any knowledge of Mr. McCullough’s acts and condition on that day. The evidence offered as to incapacity before and after that day is answered by the evidence of capacity.

“ The testimony shows that testator had long had under consideration the making of his will, and that; when he made the will of February 20th, he had inquired concerning the family of his sister, Mrs. Crate, no doubt with a view to the disposition of his estate. In the present will, Mrs. Crate and her daughters are made the principal beneficiaries, and therefore required less reflection than if radical changes had been made, and less capacity. McMasters *v.*Blair, supra.

“ Mr. McCullough created a trust for 20 years and directed that, in addition to the ordinary commissions, his trustees should receive $1,000 per annum. It was suggested, in argument, that this threw the burthen of proof on proponents to show the circumstances under which this provision was made. The answer to this is two-fold: 1. The contestants admitted the execution of the will and assumed the burthen of proof voluntarily. 2. The provision made here is for compensatipn and may never be earned, and, consequently, cannot be an element in the probate. The compen*14sation given by law is regarded by many as inadequate and often with reason; and trusts are known to have been refused upon that ground. The estate here is large, and the trust involved large responsibility, and Mr. McCullough might very reasonably make an extra allowance.'

“ The court is, therefore, of opinion that the contestants have failed to make out a case which should be submitted to a jury. The appeal and application for an issue must be dismissed.

“ During the course of the hearing, the contestants submitted a hypothetical case upon which they proposed to take the opinions of experts. To this, objection was made by proponents, and the objection was sustained for the reason that the hypothetical case, containing only a partial statement of the material facts embodied in the testimony offered on behalf of contestants, the opinion of experts could be of no value to the court. It may be conceded that, in common law courts, a hypothetical case, even though in the opinion of the court containing only a partial statement of the material facts proved, must be submitted to the jury, and the reason is that it is the province of the j ury exclusively to determine what are the facts and consequently the value of the expert testimony. But here the court is judge of both facts and law and should pass upon the question at once. Being of opinion that the hypothetical case submitted is but partial, it would be but waste of time to admit experts to testify.

“ The court deemed it the better practice to hear no rebutting evidence on behalf of the proponents. The contestants’ right of trial by jury depended upon their making out a case which, in law, could be submitted to a jury; and, whether they should succeed or fail in this, was really the only question for the court ; and further testimony by way of rebuttal seemed unnecessary. The court accordingly, suo motu, declined to hear it.”

The court entered the following decree :

“And now, to wit, Nov. 23, 1887, this matter came on to be heard, upon appeal from decision of register, in admitting the last will, &c., of Michael McCullough, Jr., deceased, to probate, and petition for an issue to the court of common pleas, and answer thereto, and testimony taken, and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed that the petition and appeal be dismissed, at the costs of the appellants, said costs to include the costs of'Arthur Kennedy, stenographer in this case.” [1.]

*The assignments of error*specified, 1, the decree of the court as above, quoting it; 2-7, the rulings on the evidence, quoting the bills of exceptions, as above; and, 8, the refusal of the court to decree an issue to the common pleas.

*A. M.*Brown, with him N *A. McClung,*and *Charles F. McKenna,*for appellants.

An issue should be awarded unless the court, upon a review of the testimony, would be bound to set aside a verdict *15against the will as contrary to the manifest weight of the evidence. DeHaven’s Ap., 75 Pa. 337; Knauss’s Ap., 114 Pa. 10.

The right of trial by jury, upon issues devisavit vel non, should be liberally construed. The contestants in this case having presented testimony which fairly raises a reasonable doubt of the validity of the will, and upon which a jury might find against its validity, an issue should be granted.

Counsel may put a hypothetical case, bearing a more or less strict resemblance to the case as made out by the respective parties, and get the opinion of the expert upon that. Such a method leaves the jury at liberty to say whether the facts claimed by the one side or the other have actually been made out, and, also, whether the case put by counsel resembles the one in hand as thus made out to such an extent as to warrant them in giving weight to the opinions pronounced thereon. 5 Am. L. Rev. 428, 435, title, Expert Test.; First Nat. Bank of Easton *v.*Wirebach’s Ex’r., 106 Pa., 37; D. & C. Steamboat Co. *v.*Starrs, 69 Pa. 36; Best on Evidence, Am. Ed. 1883, 496; U. S. *v.*McGlue, 1 Curtis, C. C. 9 ; Tingley *v.*Cowgill, 48 •Mo. 291; Fairchild *v.*Bascomb, 35 Vt. 335 ; Bishop *v.*Spining, 38 Ind. 143 ; Wright *v.*Hardy, 22 Wis. 348 ; Rogers Exp. Test., ed. í883, pp. 3, 8, 9.

There is no - distinction between the orphans’ court and the common pleas, under this Act. The proceeding, being statutory, the orphans’ court is to be considered, practically and strictly, as a common law court. The court does not in this case have the power of a chancellor to disregard the finding of a jury.

The court erred in assuming that because the signature to the alleged will was admitted to be the handwriting of the testator,— therefore the contestants assumed the burden of proof.

Where a will is made by an old and infirm man, in favor of a stranger, who occupies a confidential relation to him, there must be affirmative proof of absence of undue influence. Cuthbertson’s Ap., 97 Pa. 163 ; Boyd *v.*Boyd, 66 Pa. 283 ; Wilson’s Ap., 99 Pa. 545 ; Krepps *v.*Krepps, 4 Brewster, 38; Frew *v.*Clarke, 80 Pa. 170.

*John*Dalzell, with him *Wm. Scott, Geo. B. Gordon*and *W. C. Moreland,*for appellees.

The attesting witnesses having made the necessary proof before the register, soundness of mind upon the part of the testator at the very moment of the will’s execution, and its proper execution, became established as a judgment of the law. Egbert *v.*Egbert, 78 Pa. 326. The burden of proof was upon the contestants. Ib.

Solicitations, however importunate, cannot of themselves constitute undue influence. Trost *v.*Dingier, 118 Pa. 269.

Undue influence has been carefully defined-and its effect considered in Thompson *v.*Kyner, 65 Pa. 368; Eckert *v.*Flowry, 43 Pa. 46; McMahon *v.*Ryan, 20 Pa. 329; Tawney *v.*Long, 76 Pa. 106.

*16The provision made for Arensberg was for conpensation and may never be earned. The testator might very reasonably make an extra allowance for the large responsibility involved. This ruling of the court is sustained by Stokes *v.*Miller, io W. N. C. *241;*Harrison’s Ap., 100 Pa. 458; Snyder *v.*Bull, 17 Pa. 59.

No' testimony was offered tending to show that testator, when sober, was not possessed of mental capacity, or showing drunkenness, hallucination or mental weakness on March 5.

Drunkenness is not, per se, testamentary incapacity. The burden of as to its existence at the time of executing the will, is upon contestants. Schouler on Wills, Pars. 102, 126, 124, 128, 191; Thompson *v.*Kyner, 65 Pa. 368; Sloan *v.*Maxwell, 2 Green Ch. 581; Peck *v.*Cary, 27 N. Y. 9; Julke *v.*Adam, 1 Redf. 455; An-dress *v.*Miller, 2 Green Ch. 604; Leckey *v.*Cunningham, 56 Pa. 370; Noel *v.*Kafper, 53 Pa. 97.

A person has testamentary capacity if his mind and memory is sufficiently sound to enable him to know and understand the business in which he is engaged at the time he executes his will. Stevens *v.*Vancleve, 4 Wash. C. C. 262 ; Lowe *v.*Williamson, 1 Green Ch. 82; Wilson *v.*Mitchell, 101 Pa. 495 ; Andress *v.*Miller, 2 Green Ch. 606; Leech *v.*Leech, 21 Pa. 67; Daniel *v.*Daniel, 39 Pa. 191; Shaver *v„*McCarthy, no Pa. 344; McMasters *v.*Blair, 29 Pa. 303.

Partial unsoundness of mind, not operating on the mind of the testator in regard to testamentary disposition, is not sufficient to create testamentary incapacity. Pidcock *v.*Potter, 68 Pa. 342.

It is the duty of the court to determine the sufficiency of evidence of testamentary incapacity, and it is error to submit the question to a jury unless it be sufficient. Cauffman *v.*Long,’82 Pa. 72; Harrison’s Ap., 100 Pa. 458.

Issues have been refused in the following cases upon evidence of loss of memory, drunkenness, hallucinations, physical weakness, etc. Combs and Hankinson’s Ap., 105 Pa. 157; DeHaven’s'Ap., 75 Pa-. 337; Graham’s Ap., 61 Pa. 43; Cozzen’s Will, 61 Pa. 196; Eddey’s Ap., 109 Pa. 406 ; Harrison’s Ap., 100 Pa. 458; McPherson’s Ap., 9 Cent. R. 409 ; Palmer’s Est, O C, 5 W. N. C. 542.

It was not competent to prove declarations of the testator of his intention to provide for parties not named in the will. Harrison’s Ap., 100 Pa. 467 ; Moritz *v.*Brough, 16 S. & R. 403; Landis *v.*Landis, I Grant, 248.

The hypothetical questio.n was too broad and was properly excluded, under Pidcock *v.*Potter, 68 Pa. 342.

It was not proper to ask the expert his opinion as to testator’s competency to make a will. This was to ask him with respect to a matter of law. Roger’s Expert Test., par. 29; Schouler on Wills, par. 208; Palmer’s Est., 5 W. N. C. 543; Fairchild *v.*Bascomb, 35 Vt. 398; Burdon’s Est., 11 W. N. C. 138.

In putting the hypothetical question, the facts of the actual *17case should be fairly represented. Roger’s Exp. Test., par. 25 ; 5 Am. L. Rev. 428; Hurst w. R. R. Co., 49 Iowa, 79 ; Ames’s Will, 51 Iowa, 596 ; Frasier *v.*Jannison, 42 Mich. 227; Reber *v.*Herring, US Pa. 599-

Jan. 7, 1889.

Per Curiam,

After a careful examination of the testimony in this case, we fail to discover proof of testamentary incapacity in Michael McCullough at the time he made his will. There is evidence in abundance that, at that time, he was old, intemperate and irascible, but none of any consequence that he was mentally unfitted to dispose intelligently of his property.

Decree affirmed at costs of appellant.

Note. — In Good *v.*Good, 1 Mona. 718, an expert witness was allowed to express an opinion, based upon the testimony in chief of another expert, without reading the cross-examination, such testimony being .in the nature of an hypothetical question.