In Re Last Will & Testament of Brockwell

*546 Connor, J. An examination of the record in tbis appeal fails to disclose any error forwhich a new trial of the issue involved in tbis proceeding should be granted. We do not, however, approve the form of the issue submitted to the jury at the trial. A paper-writing propounded as the last will and testament of a deceased person is not necessarily offered in evidence. In this case, however, the paper-writing was offered in evidence upon the contention that some of the sheets of paper constituting the will as propounded, were not attached to the last sheet, when the testator and the witnesses wrote their name's on said sheet. Ordinarily the paper-writing should be described in the issue as “the paper-writing propounded as the last will and testament of the deceased.” There was evidence tending to show the execution by the deceased of the paper-writing propounded for probate as his last will and testament, in accordance with the requirements of the statute. C. S., 4131; this evidence was submitted to the jury under instructions of the court which are free from error. The reference by the court in the charge to the jury to the paper-writing as “the will,” could not have been understood by the jury as an expression by the court of its opinion that the paper-writing was the will of deceased. The context shows that the court in .the use of the word “will” was referring to the pa,per-writing. The jury has found that the paper-writing consisting of sheets of paper attached to each other by clips or fasteners, such as are in ordinary use, and every part thereof, wás executed by the deceased as his last will and testament. There was ample evidence to sustain this finding. Indeed, it may be doubted whether there was any evidence 'to the contrary. There was certainly no evidence to support a suggestion that there had' been a. fraudulent substitution of sheets of paper, before or after the deceased and the witnesses signed the last sheet. The testimony of the draftsman of the will — a lawyer of experience and of high character — was accepted by the jury as conclusive upon this phase of the case. Conceding that there was evidence in support of the contentions of the caveators, sufficient to rebut the presumption to the contrary, -(1) that the deceased, at the time he signed said paper-writing did not have sufficient mental capacity to make a will, or (2) that he signed said paper-writing because of undue influence, and that for either reason the said paper-writing is not his last will and testament, we find no error in the submission of these contentions to the jury at the trial. Under instructions which we find free from error, the jury has found that the deceased, at the time he signed the paper-writing did have sufficient' méntal capacity to make a will, and that he did not sign the same because of undue influence. *547 • There was no prejudicial error in the refusal of the* court to sustain objections, of the caveators to the testimony of one of the propounders, a son of the deceased and a devisee under the will, with respect to the relations between him and the deceased, his father. This testimony had little, if any, probative value as evidence upon the issue submitted to the jury; it was offered solely in explanation of matters elicited from the witness by the caveators on cross-examination. If it was error to overrule the objections of caveators,- the error was harmless. We do not deem it necessary to discuss señaíim1 the assignments of error on this appeal. They present no questions which have not-been repeatedly decided by this Court. The. principles of law ordinarily applicable in a proceeding of this nature are so well settled by decisions of this Court, that these decisions need not be cited: The judgment in the proceeding is affirmed. There is No error.