In Re Estate of Calef

McFARLAND, J.

Finis E. Johnson, proponent, filed a petition in which he prayed that a certain document, called the “will,” dated and executed September 23, 1896, and a ■certain other document, dated and executed May 15, 1899, called the “codicil”" of said will, be together probated as constituting the last will and testament of the deceased, Henrietta S. Calef, deceased. The probate was contested by Mabel O. Cootey. Three issues were submitted to a jury: 1.

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Whether the testatrix was of sound mind when she made the codicil; 2. Whether the codicil was the result of insane delusions ; and 3. Whether the codicil was procured by the undue influence of Mrs. Mabel Tickell. The jury found against the validity of the codicil on all of the issues. After a trial, the court rendered judgment admitting the “will” to probate, but denying probate of the “codicil”; and from the latter part of said judgment, denying the probate of the codicil, proponent appeals.

It is not necessary here to determine whether or not the evidence was sufficient to warrant the jury in finding that the deceased was not of sound mind when she executed the codicil; for, in our opinion, the instructions on that subject were erroneous and prejudicial to appellant. A good many instructions were given at the request of each party; and it is contended by respondent that, even if some of them were erroneous, considered separately, yet when taken as a whole —one supplementing another—they do not incorrectly state the law. But the court, on its own motion, gave the following additional instruction: “If, therefore, you find from the evidence which has been introduced in this case that the decedent, Henrietta S. Calef, at the time of writing the codicil bearing date May 15,1889, believed that the contestant, Mabel C. Cootey, was wanting in affection for her and insincere, and cared only for her property, or was endeavoring to take advantage of her infirmities to cheat and defraud her of her moneys during her lifetime; and you find further that such belief on her part was without foundation in fact, and was not based upon any information or evidence upon the subject communicated to her, then your verdict upon the issue of insanity should be against the will and in favor of the contestant.” This was a separate, independent instruction, complete in itself. It did not merely tell the jury that they might consider the matters therein enumerated, but directed them to find for the contestant on the issue of insanity, if they found these enumerated matters to be true. It cannot, therefore, be helped out by any other instruction; it must stand or fall by itself. And, in our opinion, it was clearly erroneous. It is hazardous to undertake to tell a jury that from certain facts they should find insanity; and if that can ■