In re Estate of McGinn

INSTRUCTIONS OP THE COURT.

:Allowed and Given on the Part of Respondents.

I. All property of the wife owned by her before marriage, and that acquired afterward by gift, bequest, devise or descent, with the rents, issues and profits thereof, is her separate property.

All property owned by the husband before marriage, and that acquired afterward by gift, bequest, devise or descent, with the rents, issues and profits thereof, is his separate property.

All other property acquired after marriage by either husband or wife, or both, is community property.

II. Upon the death of the husband, one-half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband, and, in the absence of such disposition, goes to his descendants equally, if such descendants are in the same degree of kindred to the decedent.

Prom this you will see that every person over the age of eighteen years, of sound mind, is given the right to elect and determine whether he will allow his estate to go to his descendants in equal shares, as provided by law, or whether he will prevent such descent and succession and dispose [of it] by will. Every person has the right, by his last will and testament, to bestow his property on whomsoever he pleases; and his children cannot prevent such disposition of his property, for they have no right, either legal or equitable, in such estate, which can be asserted against his disposition of it by will. The law of the land has placed every person’s estate wholly under the control of the owner, subject to such final disposition of it as he may choose to make by his last will and testament, limited only by the statutory rights of his widow.

All parents have a right to judge as to who are the proper objects of their bounty; and if free from undue influence and insane delusions, and of sufficient mental capacity, may give their property to any person whomsoever,

IY. The law having conferred on every person over the age of eighteen years, and of sound mind, the right to elect and determine whether he will allow his estate to descend to his children in equal shares, or whether he will bestow his entire estate upon one or more of his children, to the exclusion of all others, it will not be presumed in law that he was insane, or of unsound mind, because he has exercised that' right, and discriminated between his children in the disposition of his estate.

Y. The father of a legitimate unmarried minor child is entitled to its custody, services and earnings, until the majority or marriage of the child, unless the parent relinquishes such earnings or services.

VI. The burden is upon the contestants in this proceeding to prove and establish the issues made herein, by a preponderance of evidence, and, unless so established, you will find each and every issue against said contestants.

VII. As to the Tenth Issue, you are instructed to determine, from the evidence in the case, in what year and month, and on what date, the will in evidence was signed by said James McGinn, and set forth the month, year and day so determined upon, in your answer, if you should find that it was ever signed by said McGinn.

VIII. Upon the Eleventh Issue, the court instructs you that you should determine, from all the evidence in the ease bearing upon the question, whether the said James McGinn was of sound and disposing mind at the time of signing the instrument offered in evidence, and purporting to be the last will and testament of said James McGinn, and if you find, from the evidence, that he was of sound and disposing mind at the time the said instrument was subscribed by him, and when the said James P. Tevlin and James P. Smith signed their names to the same, your answer to said Eleventh Issue should be “Ves.”

IX. A person may be said to be of sound and disposing mind who is capable of fairly and rationally considering the character and extent of the property to be disposed of, the persons to whom he is bound by ties of blood, affinity or friendship, or who have claims upon him, or who may be dependent upon his bounty, the persons to whom, the manner and proportions in which, he wishes the property to go.

X. Intellectual feebleness alone, or mere weakness of the understanding—whether this condition of mind is brought about by natural causes, or the result of an injury or disease—does not disqualify a person from making a valid will.

XI. A partial failure of mind or memory, oven to a considerable extent, whether it arises from an attack of apoplexy,

XII. In deciding upon the capacity of the testator to make his will, it is the soundness of mind, and not the particular state of bodily health, that is to be attended to. The latter may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of.

XIII. Neither old age, distress, nor debility of body, incapacitates to make a will, provided the testator has possession of his mental faculties and understands the business in which he is engaged. The real point in issue and for you to determine is, whether the testator was of sound or unsound mind at the precise date of the making and execution of the will in question. What his mental condition was before and after executing the will is only important as it throws light upon his mind, and shows its actual condition when the will was executed.

XIY. The law gives to every man of sound mind the right" to dispose of his property by last will, and this is regarded as one of the most sacred rights and the most efficient means which he has, in protracted life or old age, to command the attention due to his infirmities, and a man cannot legally be deprived of this right and power because he may have been stricken with apoplexy, or afflicted with hemiplegia, or paralysis, or because he may stutter or stammer in speech. However that may be, a person cannot be deprived of it for any of the reasons stated, ¿r because of any bodily affliction —whatever it may be. He may be moral or immoral, just or unjust—the right belongs to him, if he be of sound and disposing mind.

XY. It makes no difference whether the will appears to your mind to be just or unjust, equitable or inequitable; you are not for that reason to find that the testator was of unsound mind; for a man may be of sound mind and strong mind, and yet be exceedingly unjust.

XVII. The Twelfth Issue is: Was the signing or subscribing, or publication or acknowledgment of said instrument, or any part thereof or therein, or any one or more of the dispositions of the property in said instrument contained, made under or procured by, or made by or under any undue influence exercised by Johanna McGinn, the surviving wife of said James McGinn, Ellen Prances McGinn, the daughter of said James McGinn, and Joseph McGinn, the son of said James McGinn, or by either of them.

Undue influence consists:

1. In the use by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him< of such confidence or authority, for the purpose of obtaining an unfair advantage over him;

2. In taking an unfair advantage of another's weakness of mind; or

3. In taking a grossly unfair advantage of another’s necessity or distress: Giv. Code, 1575.

XVIII. The undue influence must be present influence acting upon the mind of the testator at the time of making his will, and the exertion of the undue influence upon the very act must be proved.

Procuring a will to be made, unless by foul means, is nothing against its validity. A man has a right by fair argu

A will procured by honest means, by acts of kindness, attention, and by importunate persuasion which delicate minds would shrink from, would not be set aside on that ground alone.

It is only that degree of influence which deprives a testator of his free agency, and makes the will more the act of others than his own, which will avoid it.

Neither advice or argument nor persuasion would vitiate a will made freely and from conviction, though such will might not have been made but for such advice and persuasion.

Undue influence is not such as arises from the influence of gratitude, affection or esteem; but it must be the control of another will over that of the testator, whose faculties have been so impaired as to submit to that control, and that he has ceased to be a free agent, and has quite succumbed to the power of the controlling mind or will.

XIX. All influences are not .unlawful. Persuasion appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution or the like—these are all legitimate, and may be fairly pressed on a testator.

XX. Lawful influence, such as that arising from legitimate family and social relations, must be allowed to produce its natural result, even in influencing last wills.

XXI. However great the influence thus exerted may be, it has no taint of unlawfulness in it, and there can be no presumption of its actual unlawful exercise, merely from the fact that it is known to have existed, and that it has manifestly operated on the testator’s mind as a reason for his testamentary disposition.

XXII. Such influences are naturally very unequal, and naturally productive of inequalities in testamentary dispositions ; and as they are also lawful in general, and as the law cannot criticise and measure them so as to attribute to them their proper effect, no will can be condemned because the existence of such an influence is proved, and because the will contains in itself proof of its effect.

XXIV. If a wife, by her virtues, has gained such an ascendency over her husband, and so riveted his affections that her good pleasures are law to him, such influence can never be a reason for impeaching a will made in her favor, even if it exclude the residue of the family.

XXV. A will cannot be set aside because it is the result of an undue fondness for some member of the testator’s family, or a causeless dislike for another.

XXVI. If a wife urged upon a testator the propriety of leaving her his property, and to exclude others, it does not constitute undue influence to vitiate the will.

XXVII. The wife has the right to advise and to exercise her influence to move and satisfy the judgment of the testator.

And a son and daughter may exert some influence to induce the father to make a will.

XVIII. The record of the commitment of Mrs. McGinn to the State Asylum for the Insane at Napa, California, on account "of her insanity, has been admitted in evidence. As appears by the record, Mrs. Johanna McGinn was committed to said Insane Asylum long prior to the alleged execution of the will offered in evidence. There is no evidence to prove, or tending to prove, that Mrs. McGinn has been restored to mental sanity, and, under the circumstances, it is a conclusive presumption of law that she is, and has been ever since said order of commitment, insane, and it is your duty to find in accordance with said presumption—that is to say, that she has been, ever since said commitment, insane.

XXIX. To constitute undue influence there must be an intention on the part of the person exercising it to take an unfair advantage of another’s weakness of mind, or to take a grossly unfair advantage of another's necessity or distress. In order that such an intention may exist in the mind of the person exerting influence, it must appear that such person was at the time of sound mind, and capable of forming such intention.

XXXI. Undue influence cannot be presumed, but must be proved in each case, and the burden of proving it by preponderance of evidence lies on the contestants in this case.

XXXII. Undue influence is not a presumption, but a conclusion from the facts and circumstances proved.

XXXIII. Undue influence is not to be presumed, nor should it be found upon mere suspicion, but upon facts proved to your satisfaction. The law will not presume, from the mere fact that there was an opportunity or a motive for the exercise of undue influence, nor is there any presumption of law, that undue influence was exerted, because of the mental or physical condition of the testator, or that his children, or any of them, were excluded from any benefit under his will.

XXXIV. Before this will can be set aside, you must believe and find from the evidence that at the time of the execution of the will the mind of James McGinn was .so under the control and influence of his wife, Johanna McGinn, his daughter, Nellie McGinn, and his son, Joseph S. McGinn, or some one of them, that he could not, if he had wished, have made a will different from this.

You must believe that he had not sufficient strength of mind to resist such influences exerted by them at the time of the execution of the will.

XXXV. If you believe from the evidence that James Mc-Ginn gave the instructions to his attorney for the preparation of the will, that it was prepared according to those instructions, that said will was read to him, that he heard it read, and knew its full contents, and understood its provisions, and that its provisions were in accordance with his wishes, and that at these times, and when the will was executed, he had sufficient strength of mind and control of his faculties to determine for himself that this will disposed of his property as he wished, and that he could if he had wished have made any other disposition of his estate, your answer to and verdict on the Twelfth Issue should be the word “No.”

To constitute a fraudulent misrepresentation, it must be made with the intention of deceiving the person to whom it is made. The statement or misrepresentation must be false, and it must be known to the party making it to be so, or the party making it must have no reason for believing it to be true.

XXXVII. The fraudulent misrepresentation must be material, and it is not material if the transaction would have taken place without it.

A representation must be material, even though there were no other inducements to cause the party to act as he did. That is to say, the representations—if any were made in this ease—must have been false; they must have been made with the intention of deceiving James McGinn; they must have had that effect, and they must have' been such that the testator, James McGinn, would not have made the will in question without them, or would have made a different will if such alleged misrepresentations had not been made.

XXXVIII. You are not to presume that any false representations were made to the testator by Johanna McGinn, Ellen F. McGinn, Joseph S. McGinn, or any of them, and you should find that no such representations were made unless the contestants have proved by a preponderance of evidence :

1. That the representations were made;

2. What the representations were;

3. That they were false;

4. That the parties making them knew them to be false, or had no reason to believe them to be true, and did not believe them to be true;

5. That they were made with the intention of deceiving;

6. That they did deceive the testator, and cause him to act contrary to what he otherwise would have acted.

XXXIX. The representations, if any were made, must be such as are alleged in the petition filed by the contestants. No other representations than those set forth therein should be regarded by you.

If the representations which are alleged in the petition of contestants are not proved, no others can be.

XL. The Fourteenth Issue is: Was said James McGinn induced to sign said instrument, or to acknowledge, or publish, or to declare the same to be his will, or to make any disposition of his property therein contained, by the, or any, fraud practiced upon him, the said James McGinn, or committed by said Johanna McGinn, and Ellen Frances McGinn, and Joseph S. McGinn, or by any of them?

Actual fraud has been defined in our code, section 1572 of the Civil Code, as consisting in any of the following acts committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

1. The suggestion as a fact of that which is not true, by one who does not believe it is trüe;

2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believed it to be true;

3. The suppression of that which is true by one having knowledge of the fact;

4. A promise made without any intention of performing it; or

5. Any other act fitted to deceive.

Fraud is never presumed; it must always be proved, and it can be established only by proving the facts constituting the fraud; and, in this ease, you should find that no fraud was practiced upon the testator, James McGinn, by any of the parties named, unless the contestants have proved to your satisfaction, by a preponderance of evidence:

1. That a fraud was committed;

2. The facts constituting that fraud, and showing of what it consisted ¡

3. That it influenced the testator, James McGinn, and caused him to make the will in question, and that he would have made a different will but for the perpetration of such fraud.

The fraud must consist of the fraud alleged in contestants’ petition; no other should be regarded by you.

XLI. The Fifteenth Issue is: Was the said James McGinn, at the time when the said instrument was signed by him, and by said James F. Tevlin, and James F. Smith, and prior and subsequent thereto, laboring under or affected with or by any delusion or illusion as to Mary Clements, Emma Burns, P. H. McGinn, James McGinn, John McGinn, or Thomas McGinn, or as to any of them, or as to the filial affection of them, or any of them, towards him?

As to insane delusions: A sound mind is one wholly free from delusions. Weak minds differ from strong minds only in the extent and power of their faculties; unless they betray symptoms of delusions, their soundness cannot be questioned.

It is not the strength of a mind which determines its freedom from delusion; it is its soundness.

Thus, it is often said that such and such a distinguished man has a sound mind; yet a man in the plainer walks of life, of faculties of less extent or power, may be equally sound. The latter is one of sound mind equally with the former if free from delusions. Delusion of mind is, to an extent, insanity. The main character of insanity, in a legal view, is said to be the existence of a delusion; that is, that a person should pertinaciously believe something to exist which does not exist, and that he should act upon that belief.

Belief of things which are entirely without foundation in fact, and of the existence of which the testator had no evidence, and which no sane person would believe, is insane delusion; that is, when a person believes things to exist only, or at least in that degree only, in his own imagination, and of the nonexistence of which neither argument nor proof can convince him—that person is of unsound mind.

XLII. Belief based on evidence, however slight, is not delusion. One person, from extreme caution, or from a naturally doubtful frame of mind, will require proof before acting, amounting perhaps to demonstration; while another,

XLIII. Delusion rests upon no evidence whatever; it is based on mere surmise.

XLIY. It is alleged in the contestants’ petition, paragraph XIII, that said supposed or pretended will was made under the false and insane delusion that he, said James McGinn, had, during his lifetime, made provisions for and advances to these contestants, and to each of them, and that he had advanced to them, and to each of them, a just and equitable share of his property and estate.

This is the delusion, and the only delusion, alleged in contestants ’ petition; and, unless the contestants have proved to your satisfaction, by a preponderance of evidence, that said James McGinn labored under that particular delusion at the time of the execution of said will, your answer to and verdict on the Fifteenth Issue should be “No.”

XLY. Medical witnesses have been examined in this contest, and, so far as their testimony is dependent upon hypothetical questions, the court instructs you that:

The testimony of experts is frequently unsatisfactory, and many times unreliable. It is unsatisfactory, because it cannot convey to our minds the precise reasons why the conclusions are reached; and it is unreliable, because it is frequently based upon speculations instead of facts. Experts in the exact sciences and in mechanics, who base their opinions upon the laws of nature and of the exact sciences, and their own experience with those laws, have tangible facts before-them; but where the opinions are based upon speculation, where the subject of the inquiry, namely, the operation and condition of the human mind, is beyond the possibility of human knowledge, we should receive those opinions as at least uncertain. So, when we see a person perform such or such an act, we can form an opinion whether the act is .rational or irrational, whether it is consistent with the standard or average human intelligence and reasonableness; but when we advance to speculations upon what would or would not follow upon some supposed existence of mental conditions, we go beyond the scope of knowledge and tread upon the realm of imagination or conjecture.

A party is not bound to become a witness in his own behalf in order to avoid unfavorable legal inferences against him.

The instruction heretofore given you by the court, and to which reference is now made, refers to the character of the evidence as weaker or stronger, or satisfactory or unsatisfactory, and does not apply to the amount or sum total of the evidence offered.

XLIX. The jury are instructed that the preponderance of evidence in a case is not alone determined by the number of witnesses testifying to a particular fact, or state of facts. In determining upon which side the preponderance of evidence is, the jury should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they testified, their conduct and demeanor while testifying, their interest or lack of interest, if any, in the result of the suit, the probability or improbability of the truth of their several statements in view of all the other evidence adduced or circumstances proved on the trial, and from all the circumstances determine upon which side is the weight or preponderance of the evidence.

L. The court instructs you that it is not at all necessary to the validity or due execution and publication of a will, that the subscribing witnesses, or any of them, should be informed of or have any knowledge whatever of the contents of the document purporting to be the last will of the testator. It is sufficient, so far as the execution of the will is concerned, if the testator signs in their presence, and declares the instrument to be his last will and testament, and they subscribe their names thereto, in his presence, at his request.

Allowed and Given on the Part of Contestants.

1. Whenever nine of your number agree on an answer to an issue, it becomes your verdict on that issue. Your verdict must be in writing, signed by your foreman, and nine of you must agree on that verdict.

2. You are the sole and exclusive judges of the value or effect of the evidence. Your power of judging of the effect

3. You are not bound to decide in conformity with the declarations of any number of witnesses which do not produce a conviction in your minds against a less number, or even against a presumption from their evidence satisfying your minds. Evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other side to contradict; therefore, if weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust. A witness is presumed to speak the truth, but this presumption may be repelled by the manner in which he testified or by the character of his testimony, or by evidence affecting his character for truth, honesty and integrity, or by contradictory evidence; and you, the jury, are the exclusive judges of the credibility of each and every witness, and as to every part of the testimony and evidence of each and every witness.

4. Direct evidence is that which proves the fact in dispute directly, without an inference or presumption. Indirect evidence is that which tends to establish the fact in dispute by proving another fact, and which, though true, does not itself conclusively establish that fact, but which affords an inference or presumption of the existence of that fact. Indirect evidence is of two kinds, inference and presumption. Inference is a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect. A presumption is a deduction which the law expressly directs to be made from particular facts. The inference must be founded on a fact legally proved, and on such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature: Code Civ. Proc., 1958-1960.

5. A will or a part of a will, procured to be made by duress, menace, fraud or undue influence, is invalid.

First. It must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto.

Second. The subscription must be made in the presence of the attesting witnesses, or acknowledged by the testator to them to have been made by him or by his authority.

Third. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and,

Fourth. There must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the testator’s request and in his presence.

7. A will can be revoked or altered: 1. By a written will, or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or 2. By being burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence and by his direction: Civ. Code, see. 1292.

8. A person is of sound and disposing mind who is in full possession of his mental faculties, free from delusion and capable of rationally thinking, acting and determining for himself. Weakness of mind is not the opposite of soundness, but is the opposite of strength of mind, and unsoundness is the opposite of soundness. A weak mind may be a sound mind, and a strong mind may be unsound. The strong mind of a man possessed of superior talents and of a determined will may be so wrought upon or affected by some delusion as to be unsound; and a weak mind—that is, a mind of what we call a lower grade of intellect—may be so evenly balanced as to be sound. It is not the weakness or strength of mind which determines its testamentary capacity; it is its soundness; that is, its healthy condition and healthy action. It frequently occurs that there is partial insanity, or monomania—insanity as to one or more persons, or upon

9. Monomania consists in a mental or moral perversion, or both, in regard- to some particular subject, or class of subjects, while in regard to others the person seems to have no such morbid affection. The degrees of monomania are various. In many cases the person is entirely capable of transacting any matters of business out of the range of his peculiar infirmity; and, as to those matters out of that range, he may be entirely sound; while, as to matters within the range of the infirmity, he may be quite unsound: 1 Redfield on Wills, 72 et seq.

Whenever it appears that a will is the direct offspring of partial insanity, or monomania, it should be regarded as invalid, though the general capacity be unimpeached.

10. Unsoundness of mind may be the result of disease, drunkenness, or of one of many other causes. In case of drunkenness there are two conditions, a will made under either of which is invalid, viz.: Where the will is made during the period while the person is overcome by the delirium of intoxication, or where the use of intoxicating drinks has been so extensive and so excessive as to permanently disable the mind. But, in either case, the effect must be to have either temporarily or permanently overcome the judgment and unseated the reason.

11. Undue influence consists in the use, by one in whom a confidence is reposed by another who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him, or in taking an unfair advantage of another’s weakness of mind, or in taking a grossly oppressive or unfair advantage of another’s necessities or distress: Civ. Code, sec. 1575.

12. The issue of undue influence and the principles governing it are entirely different from the principles applicable to unsoundness of mind. Undue influence is entirely distinct from unsoundness. A person may be of sound and disposing mind and yet be the victim of undue influence, and he may also be a victim of such undue influence when of unsound mind. If James McGinn was of unsound mind on

13. In order that the will should have been executed under fraudulent misrepresentations, it is not necessary to consider the question of delusion or insanity. A person may be of

14. Circumvention by means of fraud will be considered in the same light as constraint by force, and will have the same effect in setting aside a will as such constraint has.

If the testator be compelled by violence or urged by threatenings to make his testament, the testament, being made by fear, is ineffectual.

Likewise, if he be circumvented by fraud, the testament loses its force; for, although honest intercession or request is not prohibited, yet those fraudulent and malicious means, whereby men are secretly induced to make their testaments, are no less detestable than open force.

Actual fraud has been defined in our code (Civil Code, section 1572) as consisting in any of the following acts committed by a party to a contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

1. The suggestions of that which is not true by one who does not believe it is true;

2. The positive assertion, in a manner not warranted by information of the person making it, of that which is not true, though he believes it to be true;

3. The suppression of that which is true by one having knowledge of the fact;

4. A promise made without any intention of performing it; or,

5. Any other act fitted to deceive.

15. An insane delusion is the pertinacious belief of the existence of something which does not exist, and the acting upon that belief. Belief of things which are entirely without foundation in fact, and which no sane person would believe, is insane delusion. If a person be under a delusion, though there be'but partial insanity, yet, if it be in relation to the act in question, it will defeat a will which is the direct offspring of that partial insanity.

17. In arriving at your verdict, you are to determine the different questions of fact, and each of the issues submitted to you, in accordance with the preponderance of evidence.

18. If you believe and are satisfied, by and from the evidence, that the respondents have not established and proved, by a preponderance of evidence, that the said instrument, claimed to be the last will and testament of James McGinn, deceased, was subscribed at the end thereof by said James McGinn, himself, or by some person in his presence, by his direction, then you will find as your answer to the First Issue, “No.”

31. If you believe and are satisfied, from and by the evidence, that said James McGinn, deceased, was not of sound mind at the time the said instrument was subscribed by him, and when said J ames F. Smith and J. F. Tevlin signed their names to the same, then you will find, as your answer to and your verdict upon Special Issue No. 11, the word “No.”

33. If you believe and are satisfied, from and by the evidence, that the mind and memory of said James McGinn had become so weakened and impaired, or deranged, from excessive indulgence in intoxicating liquors, or from any other cause, that he did not have or possess a sound and disposing mind and memory sufficient, or such a mind and memory as would enable him to recollect, discern and tell the relations, connection and obligations of family and blood, then it will be your duty to find, as your answer to and verdict upon Special Issue No. 11, the word “No.”

35. If you believe and are satisfied, from and by the evidence, that said James McGinn, at the time when said instrument was signed by him and attested by James F. Smith and J. F. Tevlin, was laboring under or suffering from any mental delusion as to his daughters, Mary A. Clements and Emma Burns, or as to either of them, and that such delusion so far affected his mind toward his said daughters, or either of them, as to make him mentally incapable of duly weighing and considering their claims upon him as his children, or the claims of either of them upon him as his child, then it is your duty to find, as your answer to and verdict upon Special Issue No. 11, the word “No.”

36. If you believe and are satisfied, from and by the evidence, that said James McGinn, at the time when said instrument was signed and attested, had become and was by reason of excessive indulgence in intoxicating liquors, or by or through apoplexy, paralysis, or other diseases, idiotic or imbecile, to such a degree as to render him incapable of remembering and weighing the relations, connections and obligations of family and blood, and the claims of his children upon him, then it will be your duty to find, as your answer and verdict upon Special Issue No. 11, the word “No.”

37. If you believe and are satisfied, from and by the evidence, that the deceased, James McGinn, at the time when said instrument was signed and attested, was laboring under or suffering from a delusion in respect to his children, or in respect to any of his children who might have been the objects of his testamentary bounty, and that the disposing provisions of said instrument were caused or affected by such delusion, then you will find, as your answer to and verdict upon Special Issue No. 11, the word “No.”

39. A person may have upon some subjects, and even generally, mind, memory and sense sufficient to know and comprehend ordinary transactions and sufficient to enable him to attend to business, and yet upon the subject of his children, or upon the subject of some of his children, who would naturally be the objects of his care and bounty, he might be of unsound mind.

40. If you believe and are satisfied, from and by the evidence, that the deceased James McGinn, was, at the time when said instrument was signed and attested, laboring under a delusion in respect to his daughters, Mary A. Clements and Emma Burns, or either of them, and that this delusion influenced the making of said instrument, as to them, or either of them, then the instrument proposed is not the expression of the will of a testator of sound and disposing mind, and cannot be regarded as the will of James McGinn, and you will find, in answer to Special Issue No. 11, the word “No.”

41. If you believe and are satisfied, from and by the evidence, that James McGinn was, at the time when said instrument was signed and attested, laboring under the delusions alleged in contestants’ petition, with respect to his children, or any of them, then he. cannot be regarded as, or accounted as, mentally sane in making said alleged will, so far as his said children or any of them are concerned, though he might be mentally sane as to the rest of the world.

42. If you believe and are satisfied, from the evidence, that said James McGinn, at the time of signing and attestation of said instrument, had conceived or believed that his daughters, Mary A. Clements and Emma Burns, or either of them, had no affection for him, and that there was no

46. Unsoundness of mind, in the sense of Special Issue No. 11, embraces every species of mental incapacity, from raging mania to that debility and extreme feebleness of mind which approaches near to and even degenerates into idiocy.

55. In determining whether or not said James McGinn was of sound or unsound mind at the time of the making, signing and attestation of said instrument, you can take into consideration the disposition of property and the provisions made and contained in said instrument, as well as the manner in which the same is written and signed.

58. If you believe and are satisfied, from and by the evidence, that James McGinn was of unsound mind at the time of making, signing and attestation of said instrument, then no subsequent act or declaration of his could make said instrument valid as a will, and if you so believe, [then] any and all evidence of the soundness of mind of James McGinn, at a period subsequent to the making of said will, will be disregarded by you in finding your verdict upon Special Issue No. 11.

60. If you believe and are satisfied, from and by the evidence, that all the property of James McGinn was acquired after his second marriage, then said property is community property, and Johanna McGinn is entitled as his surviving wife to one-half of said property, and can claim the same though the said instrument is admitted to probate.

61. In deciding the issues raised by the pleading in this contest and submitted to you, you are instructed that the decree which admitted the alleged will to probate is not evidence as to any of the said issues, or as to any of the facts contained in said issues.

62. The decree of this court admitting said alleged will to probate, which has been admitted in evidence, does not raise or create any presumption of law that James McGinn was of sound and disposing mind or competent to make a will

The court, then, of its own motion, further charged the jury as follows:

A. On one point in this connection it may perhaps be advisable for the court to caution the jury. It frequently happens that, in the course of a trial before a jury, counsel desire under their theory of the case to introduce evidence which, according to their antagonists, may seem improper, and it becomes the province of the judge to decide touching the admissibility of such evidence. In arguing and presenting a question, it often becomes necessary for counsel to state what is sought to be proved, or to ask some question of the witness which will disclose the fact or line of testimony, sometimes even the answer of the witness improvidently made aiding in the matter.

If the answer has not been made and objection has been sustained with or without exception saved, it is the duty of the jurors to banish from their minds, in considering their verdict, any suggestion of a fact or line of testimony introduced by such question to witness or offer of proof.

B. It frequently happens, however, that while the question is in itself unobjectionable, yet the witness in his answer fails to be responsive to the question, and either states matters which are inadmissible as evidence or irrelevant to the issue, or are for any other cause objectionable. A motion is thereupon made by the aggrieved party to strike out such answer or answers.

Such motion granted is notice to the jury that they are not to consider that particular testimony as offered, and if any essential fact depends for its proof upon such testimony so stricken out, and such proof is not supplied in some other way free from objection, such material fact is to be considered by the jury as not proved. Inasmuch, as before stated, the power of juries and judges as to the effect to be given to evidence is not arbitrary, but to be exercised with legal discretion, and in subordination to the rules of evidence.

C. It sometimes occurs that the judge, in the course of passing upon the admissibility of particular evidence or some

particular question, either misapprehends or misstates the fact sought to he proved, or expresses a doubt either as to the competency, the effect, or weight to be given to the evidence in discussion.

Any such statement by the court affecting the weight of testimony, the credibility of a witness, or any matter whatever, within the province of the jury, would, if adopted by the jury, or permitted in any manner to bias their minds in reaching a verdict, be error. It is therefore the duty of the court to charge the jury to utterly disregard and banish from their minds any chance expression of the judge before finally determining any question of admissibility which may concern either the weight of the testimony or the credibility or the want of credibility of any witness or statement made, and which may incautiously or unadvisedly have crept into the trial, and you are so cautioned.

D. I believe, gentlemen of the jury, that these instructions cover all the propositions of law upon which it is necessary for me to give you instructions. You may take with you the form of special verdict, in which blanks have been left for your foreman to attach the result of the jury’s deliberations. In this form you will answer in the appropriate blanks, yes or no, to each issue, as you may determine it. If you desire, you can take with you the instrument here in dispute.

E. You may decide in court without retiring, or you may retire for deliberation.

If you retire, you must be kept together in some convenient place, under charge of an officer, until at least three-fourths of your number may agree on a verdict. Whenever nine of your number agree on an answer to an issue, it becomes your verdict on that issue.

If, after you retire, there be any disagreement between you as to any part of the testimony, or if you desire to be informed on any point of law arising in the ease, you may require the officer to conduct you into court, and, upon your being brought into court, the information required must be given you in the presence of, after notice to, the parties or counsel.

F. Whenever three-fourths of you have agreed on a verdict, you must be conducted into court, your names called by the clerk, and the verdict rendered by your foreman.

Your verdict must be in writing, signed by your foreman, and must be read by the clerk to the jury, and the inquiry made whether it is your verdict. Either party may require the jury to be polled, which is done by the court or clerk, asking each juror if it is his verdict; and if, upon such inquiry or polling, more than one-fourth the jurors disagree thereto, the jury must be sent out again; but if no such disagreement is expressed, the verdict is complete, and you will be discharged from the case.

The case is now with you.

THE SPECIAL ISSUES SUBMITTED.

The court then submitted the following special issues to the jury for their special verdict and answer to each of said issues, to wit :

First Issue. Was the instrument in evidence in this case, and dated September 26, 1887, purporting to be the last will and testament of James McGinn, deceased, subscribed at the end thereof by said James McGinn?

Second Issue. Was said instrument subscribed at the eud thereof by said James McGinn, in the presence of James Tevlin and James F. Smith, as attesting witnesses thereto ?

Third Issue. If said instrument was ever subscribed at the end thereof by said James McGinn, deceased, did said James McGinn acknowledge to said James F. Tevlin and said James F. Smith that said instrument had been made and subscribed by him?

Fourth Issue. Did said James McGinn, at the time of subscribing said instrument at the end thereof, in the presence of- attesting witnesses, declare to said James F. Tevlin and said James F. Smith as attesting witnesses to said instrument, that the said instrument was his will ?

Fifth Issue. Was James F. Tevlin requested by said James McGinn to sign his name as witness to said instrument as the last will of said James McGinn?

Sixth Issue. Was James F. Smith requested by said James McGinn to sign his name as a witness to said instrument as the last will of said James McGinn?

Seventh Issue. Did James F. Tevlin and James F. Smith each sign his name to said instrument at the end thereof as a witness to the same as a will of said J ames McGinn, and so sign as a witness at said James McGinn's request, and in the presence of said James McGinn?

Eighth Issue. Was said instrument witnessed as a will of said James McGinn by two competent witnesses, each signing his name as a witness thereto at the end thereof, in the presence of said James McGinn, and at the said James McGinn’s request?

Ninth Issue. If the said instrument was signed by the said James McGinn, did he publish and declare the same to James F. Tevlin and James F. Smith, and to each of them, and in the presence and hearing of both of them, to be his last will and testament?

Tenth Issue. If you shall find that said instrument was ever signed by said James McGinn, in what year and month, and on what date was the same so signed by him ?

Eleventh Issue. Was the said James McGinn of sound mind at the time the said instrument was subscribed by him, and when the said James F.. Tevlin and said James F. Smith signed their names to the same?

Twelfth Issue. Was the signing or subscribing, or publication or acknowledgment of said instrument, or any part thereof or therein, or any one or more of the dispositions of property in said instrument contained, made under or procured by, or made by or under any undue influence exerted by Johanna McGinn, the surviving wife of said James Mc-Ginn, and Ellen Frances McGinn, the daughter of said James McGinn, and Joseph S. McGinn, son of James McGinn, or by either of them?

Thirteenth Issue. Was said James McGinn induced to sign said instrument, or to acknowledge or publish or declare the same to be his will, or to make any disposition of his property, or any provisions therein contained, by the, or any, fraudulent misrepresentations or statements made to him,

said J ames McGinn, by J ohanna McGinn, the surviving wife of said James McGinn, and Ellen Frances McGinn,. the daughter of said James McGinn, and Joseph McGinn, or by either of them 1

Fourteenth Issue. Was said James McGinn induced to sign said instrument, or to acknowledge or publish or to declare the same to be his will, or to make any dispositions of his property- therein contained, by- the, or any, fraud practiced upon him, the said James McGinn, or committed by said Johanna McGinn and Ellen Frances McGinn and Joseph S. McGinn, or by either of them?

Fifteenth Issue. Was the said James McGinn, at the time when the said instrument was signed by him, and by said James F. Tevlin and James F. Smith, and prior and subsequent thereto, laboring under or affected 'with or by any delusion or illusion as to Mary Clements, Emma Burns, P. H. McGinn, James McGinn, John McGinn or Thomas McGinn, or as to any one of them, or as to the filial affection of them,' or any one of them, towards him?

Sixteenth Issue. Did said James McGinn, subsequent to the signing of said instrument by said James F. Tevlin and James F. Smith, duly make, publish and declare another instrument in writing as his last will and testament, wherein and whereby he revoked and annulled any and all former wills made, signed and executed or published by him?

Seventeenth Issue. Did said James McGinn, subsequent to the said time when said instrument was signed by him and by said James F. Tevlin and said James F. Smith, revoke the said instrument?