Will—Contest—Evidence—Incompetency of Testatrix—Undue Influence.—OA this contest of the probate of a will, the evidence properly admitted is held amply sufficient to sustain the findings of the court both that the testatrix did not have the sound and disposing mind and memory essential to the making of a last will, and that the document offered for probate was the result of undue influence.

Id.—Nature of Mental In competen cy.—One may be mentally incompetent to make a last will by reason of a want of development of the mental faculties, although he is neither a lunatic nor an idiot, nor in any way possessed by delusions.

Id.—Requisites to Sound and Disposing Mind.—It is essential to the sound and disposing mind requisite for the making of a will that the testator have an understanding of the nature of the business in which he is engaged, and an understanding and recollection as to his property which he means to dispose of, of his relations to his relatives and those around him, of the persons who are the objects of his bounty, and the manner in which it is to be distributed.

Id.—Arrested Mental Development Amounting to Incompetency.— The evidence properly admitted is held to sustain the theory of the contestant that, while the testatrix was neither a lunatic, an idiot or an imbecile, nor in any way a victim of insane delusions, her mind was arrested in development during childhood and never materially progressed, with the result that in so far as her mind was concerned she was practically a child to the day of her death, and was never mentally competent to dispose of her large estate by will.

Id.—Evidence of Undue Influence.—The evidence is also held amply sufficient to sustain the finding of undue influence operating directly upon the testamentary act, notwithstanding the testimony to the contrary of the only persons who were present at the time of the execution of the alleged will.

Id.—Evidence of Incompetence—Business of Testatrix Transacted by Others.—On the trial of such contest, letters written by the proponent of the will, at times when she had personal charge of the deceased, to the manager of the latter’s property, acknowledging receipt of monthly drafts for the deceased and advising him how much she would need per month for the future, were admissible in evidence on behalf of the contestant as tending to show the actual transaction of the business of the deceased by the writer, a matter going to the acts and conduct of the deceased herself.

Id.—Manner of Treatment by Family—Conduct of Testatrix.— While the manner in which a person whose sanity is in question was treated by his family is not, taken alone, competent substantive evidence tending to prove insanity, because it is a mere extrajudicial expression of opinion on the part of the family, still it is proper evidence when given in connection with the conduct of the alleged insane person under treatment, as illustrating and explaining such conduct.

D>.—Acquiescence of Testatrix in Course of Conduct.—Absolute acquiescence by the person whose soundness of mind is in question in a course of conduct on the part of those around him with relation to his property and personal affairs, which no person of sound mind would tolerate or acquiesce in, is competent evidence tending to show an unsound mind.

Id.—Letters as Part of Res Gestae of Transaction of Business.— Where the business of such person is transacted by others by means of letters and cablegrams from one to the other, such letters and cablegrams constitute a part of the res gestae in the matter of the actual transaction of business.

Id.—Declarations of Legatees and Devisees upon Question of Mental Competency.—The declarations of any number of legatees or devisees less than all upon the question of the mental competency of a testatrix is not admissible in evidence on the issue of competency. This rule is applicable to the declarations of a person who is executrix, proponent and principal beneficiary of the will. The same rule applies where the evidence is addressed to the question of undue influence.

Id.—Admission of Declarations for Limited Purpose—Appeal.— Where the trial judge, upon the hearing of the contest, consistently ruled out such declarations when offered as independent substantive evidence on the issues of ineompeteney and undue influence, and subsequently found against the validity of the will because of mental incompetence of the testatrix and undue influence, it will be assumed on appeal, that such declarations, when admitted in evidence for particular purposes, were not considered by the trial judge for any other purpose than the ones for which they were' admitted.

Id.—Paper Used to Refresh Memory not Testimony.—A paper used solely for the purpose of refreshing the memory of a witness is in no sense testimony, and admissible in evidence as such by the party producing the witness, except in so far as it is testified to by the witness to be true, and thus made a part of his evidence.

Id.—Surprise—Impeaching Witness—Failure to Testify—Collateral Matters.—A party has no right, on the ground of surprise, to impeach his own witness by showing previous inconsistent statements made by him as to matters concerning which he has failed to testify, as for instance upon matters as to which he has said that he did not remember, or as to matters concerning which he has given testimony that are purely collateral or irrelevant. The test whether the matter is collateral is, could the fact as to which the inconsistency is predicated, have been shown by evidence by other witnesses, independently of the inconsistency.

Id.—Impeaching Witness by Contradictory Letters.—Where the contestant of the will offers the proponent as a witness in his behalf, and the witness gives testimony against the contestant as to a matter clearly material and competent upon, the issue of competency, letters previously written by the witness to the contestant containing statements inconsistent with her testimony on the trial upon such subject, are admissible for the purpose of impeaching the witness.

Id.—Attempt to Impeach as to Collateral Matters—Objection must be Specific.—Where letters offered for the purpose of impeaching such witness are inadmissible solely because the matters as to which the impeachment was attempted were collateral, objections to their introduction should have been based on that specific ground. A general objection, on the ground that as declarations of the witness the letters were incompetent against the other beneficiaries in the will, is not sufficiently specific.

Id.—Immaterial Error in Admitting Incompetent Evidence.—It is held, that the erroneous admission of such letters, although they contained statements tending to show that the witness had expressed herself at various times substantially as entertaining the opinion that the testatrix was mentally incompetent, was without prejudice, as they in no substantial degree added to the showing to the same effect that was made by such portions of her testimony as either were given without objection or properly admitted over objection.

Id.—Objection to Evidence First Made on Motion to Strike Out.— Where such witness, who was a sister of the testatrix, had testified in response to questions asked by the contestant, that their mother had not made in her will any request of her children for the care and protection of the deceased, and the contestant then offers the mother’s will for the purpose of impeachment, an objection to its admission, on the specific ground that the attempted impeachment was upon a collateral matter, although it would have been good if made prior to the admission of the will in evidence, cannot be considered if made for the first time on a motion to strike out the will.

Id.—Discretion of Court in Striking Out Evidence.—The trial court is not compelled to strike out evidence received without a sufficiently specific objection, where such objection was practically available to’ the party before the admission of the evidence, and may refuse to do so in the exercise of a reasonable discretion.

Id.—Accounts and Letters Showing Transaction of Business fob Testatrix.—Written settlement of accounts, and letters and other matters relating to a compromise of a litigation, as to each of which the testatrix had a pecuniary interest, and in which she was represented by members of her immediate family who assumed to act in her behalf, without consultation with her, were properly received in evidence on behalf of the contestant, as tending to show the actual transaction at all times, by her relatives, of all the business and personal affairs of the deceased, without consultation with her at any time. Such circumstances, taken in connection with her acquiescence therein, constituted material and competent evidence on the issue of mental competency.

lb.—Part of Letter Admissible—Objection Directed to Entire Letter.—Where part of a letter offered in evidence is admissible, the remainder being incompetent, an objection of incompetency directed to the whole letter is properly overruled.

Id.—Reception of Evidence Admittedly Incompetent—Appeal— Error Assumed to be Without Prejudice—Opinion.—Where the trial judge, over the sufficiently specific objection of the proponent to the admission of a certain part of a letter offered by the contestant, erroneously admits the entire letter in evidence, but at the time of so doing expresses the opinion that the part objected to was not competent, it will he assumed on appeal that the objectionable portion of the letter was not considered by him in reaching his decision in favor of the contestant, and that the error was therefore without prejudice to the proponent. This assumption will be indulged, notwithstanding the trial judge, in an unofficial opinion rendered by him in deciding the contest, referred to such objectionable matter as one of the things tending to show the incompetency of the deceased.

Id.—Letter from Parent Recommending Testatrix to Care of Family—Evidence of Conversation in Presence of Testatrix—■ Remoteness—Weight of Evidence.—A letter from the father of the testatrix, in which he recommended her to the care of other members of the family “on account of her weak mind,” was admissible in evidence as a part of a conversation had regarding it by the members of the family, in the presence of the testatrix, during which the deceased remained silent and unconcerned. Under the circumstances of this case, the fact that such conversation took place some thirty-five years prior to the death of the testatrix, goes only to the weight to be accorded the evidence, and not to its admissibility.

Id.—Conduct of Person at Meeting Where Her Competency was Discussed.—The conduct of a person within a few months of the age of majority, at a family meeting, where in her presence and hearing her mental competency is being discussed and the claim asserted and apparently accepted by all present that she is so weak minded as to need the guardianship and care af others throughout her life, and it is being discussed whether or not a writing expressing the view that she is so affected shall be made a public record, is some evidence on the question of her competency at the time.

Ed.—Deposition of Witness—Intimate Acquaintance—Impeaching Witness Who has not Given Hostile Testimony.—Where the deposition of a witness offered by the contestant disclaimed any intimacy of acquaintanship with the testatrix, and failed, to give any testimony as expected by the contestant touching her incompetency, it was error to admit in evidence, on the ground of surprise, a contradictory letter written by the witness, in which she expressed the opinion that the testatrix “was completely incapable of taking any determination for herself.” Under the circumstances, however, the error is held to have been without prejudice, as it is also so held with respect to the admission of certain correspondence had between the proponent and the contestant and his son, subsequent to the death of the testatrix and prior to the filing of her alleged will.

Id.—Statements in Deposition Referred to on Cross-examination— Deposition not Rendered Admissible.—Where a witness for the contestant, upon his cross-examination by the proponent, has his attention directed to certain statements in a deposition claimed to have been previously made by him, and he was asked if he so stated and answered affirmatively, no part of the deposition being put in evidence by the proponent, the contestant, on redirect examination, is not entitled to offer the entire deposition in evidence, but may show, that in connection with the matters already called to his attention, he had stated other matters, thus giving his whole statement on the subject.

Id.—Evidence to Explain Impeaching Fact Brought Out on Cross-examination.—Where a witness for the contestant, who was a connection by marriage and an intimate acquaintance of the deceased, had testified on direct examination to her long continued mental' ineompeteney, and on cross-examination the impeaching fact had been brought out that during the period of her ineompeteney he had tendered for approval and had approved by the court an official bond on which the deceased was a surety in a very large amount, the contestant was. entitled, on redirect examination, in explanation of the witness’s conduct in that particular, to show by him the uniform assumption by all the members of the family that deceased was mentally weak and incapable of managing her affairs; the constant desire on their part to prevent any disclosure of that fact to the public; and the fact that while recognizing her ineompeteney they nevertheless, for the purpose of protecting her both as to person and property, and preventing a disclosure of her ineompeteney and a consequent necessity for the appointment of a guardian, adopted and uniformly carried out a policy of having her business transacted in her own name, under their immediate personal supervision and direction, with the understanding that they stood behind and in support of everything that was done.