The opinion
Mr. Chief Justice Walker: I concur in holding that instructions eighth and fifteenth, given for appellees, are erroneous, and for that reason the decree should be reversed, but I express no opinion on the weight of the evidence.
Mr. Justice Craig, dissenting.
Separate opinion by Justices Scott, McAllister and SchO r,FI ELD :
We concur in reversing the decree of the court below, for these reasons:
1st. The 8th instruction, given at the instance of appellees, is objectionable in singling out, and thereby giving undue prominence to, particular portions of the evidence.
2d. Appellees’ loth instruction is obnoxious to the same objection as the 8th; and also to the further objection, that if authorizes the jury to take into consideration the equitable or inequitable character of the provisions of the will, as a test of mental capacity,—thus, to some extent, making them the judges of' the law, as well as of the facts.
3d. The evidence fails to sufficiently satisfy us that the testator, at the time he made the will in controversy, was of unsound mind and memory, within the legal meaning of those words, or that he acted under undue influence, as is charged.
Inasmuch as the case must go before another jury, we deem it unnecessary to express any further opinion upon the questions discussed in argument by the respective counsel.