estate claims that Henry Potteiger owes the amount of this note, with interest, from the time the note became due.

"There is no dispute about the signatures of the note. The note is admitted to be a genuine note; and so far as the face of the note is concerned, the law would import that Henry Potteiger was indebted to Adam Potteiger upon this note in the sum of $1,000, with interest, as claimed by the plaintiffs, for when a man's name appears upon a note as a maker, the party whose name appears as the first indorser, or the man to whose order the note is payable has a right to bring suit against the maker and recover the amount of the note. I say, upon its face, it would import that contract.

"The defendant, however, alleges that instead of Henry Potteiger owing this money, Henry Potteiger simply loaned his name as an accommodation; and instead of this being Henry Potteiger's debt it is in fact Adam Potteiger's. When a note of this character is laid down before you, and admitted to be genuine, you start out with the presumption that it is exactly what the note calls for, and that upon its face it implies an indebtedness upon the part of Henry Potteiger to Adam Potteiger. It then remains for the defendant to show to you that he is not liable upon this note; for unless he shows that to you, there must be a recovery in this case.

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"Now, what is the testimony? There are no witnesses called as to the giving or the making of these notes. They first put in evidence the note for which this last note was given in renewal. When that note is examined will see that it is a note signed by Henry Potteiger, payable to the order of Adam Potteiger; and the law would imply that when that note fell due Henry Potteiger owed the amount set forth in that note to Adam Potteiger.

["They next allude to the date of these notes. It is not pretended that either of them was forged paper. They do not dispute the correctness of the dates of these notes, but they offered that in evidence as a fact from which you, gentlemen, are to infer that it was Adam Potteiger's debt and not Henry Potteiger's, because there is a difference, an alleged difference, in the ink; and the theory is that Adam Potteiger obtained these notes in the first place, and then took them to the bank or to some other place; and they ask you from that circumstance to infer that it was Adam Potteiger's debt and not Henry Potteiger's, and that this note was given for an accommodation.] ["What is the next evidence? They say that Adam Potteiger, the son, was sent by Henry Potteiger to his father to convey to him the protest of this last note, and to say that the father did not attend to his business; and they ask you to infer from the fact of the son having told the father that conversation that he had held with Henry Potteiger, that that was an acknowledgment on the part of Adam that it was

his debt.

Probably if the simple fact as stated had been reported to Adam Potteiger, and he had said nothing, it might possibly then be used as a circumstance to show that it was his debt. But the testimony is that he denied it. The moment the matter was called to his attention, he said, it was Henry that did not attend to his business;

so that that testimony, if believed, instead of being an admission on the part of Adam Potteiger, might be construed into a denial of the allegation of the defendant here, that this was accommodation paper.]

["Now that is the only testimony in this case that they offer for your consideration to show you that this paper is accommodation paperfrom what it reads upon its face. Is that testimony sufficient to satisfy twelve reasonable men that a promissory note in writing should be set aside? Is there anything in the testimony produced by the defendant that can in any way lead you to believe that this note was anything else than what it reads upon its face? If such testimony can convince you or satisfy you of that fact, then your verdict will be for the defendant.] But if such testimony fails to convince you or to satisfy you, rather, not convince you, that this is not Henry Potteiger's note, that it was for the accommodation of Adam Potteiger, then your verdict will be for the defendant. But if it does not give satisfactory proof, then your verdict must be in favor of the plaintiffs. And you will bear in mind always that when men give notes and place their names to them, the law implies that the maker of the note is responsible for its payment. You will start out, as I have said, with a presumption of this kind; and if you find for the plaintiffs, you will find for the sum of $1,000, with interest from the 4th of June, 1881, and the costs of protests.

Verdict and judgment were for the plaintiffs. The assignments of error specified the portions of the charge inclosed in brackets.

Messrs. Jeff. Snyder and Geo. F. Baer, for plaintiff in error.

Chas. C. Kehr, for defendants in error: Messrs. H. P. Keiser, J. H. Jacobs, and

Where the plaintiff in an action on a promistion will be required on the trial, and there is sory note is notified that proof of consideraconflicting evidence on the question of consideration, the jury are to determine from all the evidence in the cause whether a consideration has been satisfactorily proved.

Wire Book Sewing Machine Co. v. Crowell, 6 Cent. Rep. 186.

The burden of proving want of consideration rests on the defendant.

All the alleged errors are to the charge of the court. It is claimed that the language covered by the third specification is incorrect. It follows, however, a pretty full statement of the evidence, so that it is substantially correct. We see nothing in the general language of the charge to make it misleading. There is nothing therein which gives a just cause for reversing the judgment. Judgment affirmed.

Err.,

2. The question of testamentary capacity is for the jury.

3. The burden of proving mental unsoundness is always upon those who allege it.

4. If, however, general or habitual unsoundness of mind be shown previous to the will, the burden of proving a lucid interval or restoration to sanity, at the time, is in turn thrown upon those who allege it.

5. If, at the time of making the will, the testator was sound in mind and knew the business in which he was engaged, it is immaterial that he was mentally unsound before or after.

(Argued March 3, Decided March 14, 1887.)

"6. By the evidence in the case it clearly appears that the relations existing at the date of the will between Richard Pennypacker and John Pennypacker were confidential, and as Richard Pennypacker is named in the will as a beneficiary taking an estate for life under the will, and was present actively taking part in the formal execution of the will, the will is void and must be set aside upon the presumption of undue influence, uniess the plaintiffs have satisfied the jury by clear evidence that the will was the free, voluntary and uncontrolled act of John Pennypacker, and was not obtained by undue influence; and if the jury believe that John Pennypacker was of weak mind at and before the execution of the will, the plaintiffs must also prove to the satisfaction of the jury that at the time the will was made John Pennypacker was of sound and disposing mind."

We decline so to charge. The issue of undue influence is withdrawn from the consideration of the jury.

7. If the jury believe from the evidence in this case that at one time in his life, before the execution of the paper offered in evidence as the will of John Pennypacker, he was for a period of one or two years of unsound mind,

Mercur, Ch. J., Gordon, Paxson, Trunkey, Sterrett, Green and Clark, JJ.

Error to the Common Pleas of Berks County, to review a judgment on a verdict for the plaintiffs (proponents) in an issue devisavit vel non. Affirmed.

The facts as they appeared at the trial before ERMENTROUT, J., were stated in his charge to the jury, which was as follows:

Some time in 1885 John Pennypacker, a bachelor of some sixty-four years of age, died; and at his death a certain instrument of writing, under date of November 7, 1879, was presented as his last will and testament. Richard Pennypacker, a brother of the decedent, and his children are here as plaintiffs, asserting that this paper is the will of the decedent. Abraham, James and Charles Pennypacker, also brothers of the decedent, and Mary Huyett, a sister, are the defendants, asserting that it is not the will of the decedent, and that at the time of the execution of the paper the decedent had not sufficient mental capacity to make a will.

In passing upon this question you will carefully examine the evidence, laying aside all prejudice and disregarding all appeals to your sympathies. You are to judge in this case by the evidence that has been submitted to you, and not on mere passion, prejudice and sympathy. And in order to enable you intelligently to consider the facts that are in evidence, the court will instruct you in such legal principles as may be applicable to the case. The counsel have presented certain points to the court, upon which they ask us to charge. These points embody certain legal propositions which, we are asked to say to you, form the law in this case. We will first take up the points presented on behalf of the defendants.

The defendants respectfully ask the court to charge the jury as follows, and to cause the

the execution of the alleged will, he became a wild and raving lunatic; and if the jury further believe from the evidence in the case, that Richard Pennypacker transacted all of John's business and had charge of his estate and business affairs at the time of the execution of the alleged will and John was at that time an imbecile; and if the jury further believe from the evidence in the case that Richard Pennypacker and Adam Pennypacker, his son, beneficiaries in said alleged will, 'were present at the execution of the will, and that Richard Pennypacker obtained the lawyer to write the will and the witnesses to attest its execution and was present in the room actively promoting its formal execution, by directing one of the subscribing witnesses, Charles Rans, to sign his name to the will as a witness and to do his best, the law presumes the will to be null and void for undue influence, and in order to overcome the presumption, the plaintiffs in this case must have satisfied the jury by clear evidence of two facts: 1, that at the time John Pennypacksr signed the will, he had enough memory, reason and judgment to have an intelligent understanding of the property he possessed, and of its nature, extent and value, and that he had an intelligent apprehension of the nature of the will he was making; and 2, that the making and execution of the will was the free and voluntary act of John Pennypacker's mind, and not the result of the undue influence or unlawful importunity of Richard Pennypacker."

This point is refused.

"8. Where a jury sees that at and near the time when the will sought to be set aside was executed, the alleged testator was, in other important transactions, so under the influence of the person benefited by the will that, as to them, he was not a free agent, and was acting under undue control, the circumstances may be such as to warrant the conclusion, even in the absence

We answer this point as follows: while that may be true in law, the present is not a case for its application. The undue influence must be an influence exercised in relation to the will itself and not an influence in relation to other matters or transactions. Undue influence, to affect a will, must be such as subjugates the mind of the testator to the will of a person operating upon it. And in order to establish this, proof must be made of some fraud practiced, some threats or misrepresentations made, some undue flattery, or physical or moral coercion employed so as to destroy the free agency of the testator; and these influences must be proved to have operated at the very time of the making of the will. There being, in the judgment of the court, no such circumstances shown in this case, the point is refused.

"9. In order to come to the conclusion that a will has been obtained by coercion, it is not necessary to establish that actual violence has been used or even threatened. The conduct of a person in vigorous health towards one feeble in mind may be such as to excite terror and make him execute as his will an instrument (which if he had been free from such influence) he would not have executed. Imaginary terrors may have been created sufficient to deprive him of free agency."

We answer this point as follows: as a proposition of law, this is true, but the facts referred to are not the facts of the present case. There is no evidence in this case to show violence used or threatened; nor is there shown any conduct on the part of Richard Pennypacker, or any of the plaintiffs, exciting any terror, real or imaginary, in the mind of the decedent. "10. If the jury should find that John Pennypacker's mind, from many years of mental infirmity and from long habits of dependence upon his brother Richard for direction and guidance, was not self directing, and was easily led into the channel of his brother Richard's suggestions; and if Richard was present at the time the will was signed, procured counsel to draw the will, and directed Charles Rans to sign as a witness and do his best; and if Richard, at and about or near the time when the will was made, by the stamp of his firm mind on the weak and plastic mind of John (if the jury so find the facts), impressed there his wishes and views in regard to the disposition to be made by the will, and thus constrained the mind of John, and so produced and procured such a will, as his brother would not otherwise have made, the will is not the free expression of John Pennypacker's intentions, and must be set aside."

This point we also refuse.

"11. The relation existing between Richard and John Pennypacker, when the will offered in evidence was made, having been of a confidențial and fiduciary character, and Richard having procured the attorney to write the will, and having been present and taken part in the formal execution of the will by directing one of the subscribing witnesses to sign his name to the will, and Richard having been one of the persons named in the will as devisees, and taking a life estate thereunder, the law pre

"2. There is no evidence in this case tending to disprove the positive testimony of Messrs. Wanner and Zieber and of the subscribing witnesses, that at the time he made his will he did have mind and memory sufficient to understand and intelligently direct the disposition he desired to be made of his property; and if, therefore, his testimony is believed, the verdict must be for the plaintiffs."

We answer this point as follows: The jury are the judges of the evidence, its nature and character. If, upon full consideration of all the evidence in this case, the jury believe the testimony of Messrs. Wanner and Zieber and the subscribing witnesses, that at the time he made his will he did have mind and memory, sufficient to understand and intelligently direct the disposition he desired to be made of his property, the verdict must be for the plaintiffs. ***

"4. That the fact that his brother Richard went for Mr. Wanner, called the subscribing witnesses, and some of the witnesses testify that he and his son were present in the room when the will was signed, does not create a suspicion even as to the rectitude of the transaction. The law does not regard the presence a brother and of a nephew at the time of the making of the will as improper, suspicious or objectionable, although they are legatees."

of

This point we affirm, on the authority of Caldwell v. Anderson, 104 Pa. 199.

"5. There is no evidence of undue influence in this case sufficient in law to justify its submission to the jury."

This point we affirm.

"6. That if the testimony of the numerous witnesses called by the plaintiffs, together with the testimony of the persons present at the execution of the will, is believed, that John Pennypacker was possessed of mind, memory and understanding to know what he was about; that prior to the fall of 1881 his only peculiarity was slowness of speech and a retiring disposition, but all his acts and conversations were sensible; that he never was known to have any delusions, or to talk irrationally, or to do any act showing a want of sound mind, then he had capacity to make a will. The testimony that Richard did the buying and selling and attended to the general business of the farm becomes immaterial, and the verdict must be for the plaintiffs."

This point we affirm if the jury so find; but, in judging of the mental capacity of the decedent, the jury will consider all the evidence both of the plaintiffs and defendants.

7. That the evidence of want of testamentary capacity and undue influence in this case is not sufficient to justify the jury in finding a verdict for the defendants."

We refuse this point.

As you will have observed, the question of

undue influence is withdrawn from the jury. That leaves for your consideration but one point in this case, namely: did the decedent, John Pennypacker, have sufficient testamentary capacity to make his will at the time of its execution on the 7th of November, 1879 ? This is the only question that you have now to consider. And I may say here that in consider ation of that question there are a few principles of law that are well settled, and they will, in addition to what the court has already said, be carefully considered by the jury in passing upon this case. These legal principles are as

follows:

As sanity, that is, soundness of mind, is the normal condition of men, the burden of proving mental unsoundness is always upon those who allege it.

Testamentary capacity, that is, the capacity to make a will, is presumed of everyone of full age, and the affirmative is with him who undertakes to call it in question, and this affirmative he must establish, not in a doubtful, but in a positive manner; and if, in weighing the evidence, the question is doubtful or balanced, a jury ought to incline in favor of disposing ability.

If, however, general or habitual unsoundness of mind be once shown to exist previous to the will, the burden of proving a lucid interval or restoration at the time of making it is thrown upon those who allege the fact.

I will also in addition read to you what is said upon the question of mental capacity in a late case decided by our supreme court, the case of Wilson v. Mitchell, 101 Pa. 503: “A man of sound mind and disposing memory is one who has a full and intelligent knowledge of the act he is engaged in, a full knowledge of the property he possesses, an intelligent perception and understanding of the disposition he desires to make of it, and of the persons and objects he desires shall be the recipients of his bounty. It is not necessary that he collect all these in one review. If he understands in detail all he is about, and chooses, with understanding and reason, between one disposition and another, it is sufficient for the making of a will. If, from any cause, he is enfeebled in mind, so as to be incapable of knowing the property he possesses, of appreciating the effect of any disposition made by him of it, and of understanding to whom he intends to bequeath it, he is without the requisite testamentary capacity. He must have memory. A man in whom this faculty is totally extinguished cannot be said to possess understanding to any degree whatever or for any purpose. But his memory may be very defective; it may be greatly impaired, weakened by age or disease. He may not be able at all times to recollect the names, the persons or the families of those with whom he had been intimately acquainted, may at times ask idle questions and repeat those which had before been asked and answered; and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigor of intellect to make and digest all the parts of a contract, and yet he may be competent to direct the distribution of his property by will.

"The question is not so much, What was the

degree of memory possessed by the testator? as this, Had he a disposing memory? Was he capable of recalling the property he was about to bequeath, the manner of distributing it, and the objects of his bounty? To sum up the whole in the most simple and intelligent form, Were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed the will? Neither age, nor sickness, nor extreme distress or debility of body will affect the capacity to make a will if sufficient intelligence remains. The failure of memory is not sufficient to create incapacity, unless it be total or extend to his immediate family or property. The want of recollection of names is one of the earliest symptoms of decay of memory, but this failure may exist to a very great degree and yet the solid power of the understanding remain."

You will, therefore, observe that what the law defines as the mental capacity necessary to make a will is this: Were the mind and memory of the man who makes the will sufficiently sound to enable him to know and to understand the business in which he was engaged at the time of the execution of the will? Did he know what he was doing? Did he have a proper idea of the manner and form in which he was disposing of his property and the parties to whom he was making that disposition? That is all the mental capacity that the law calls for in cases of this kind. It is a rule based upon sound principle, for all men are not created alike. One man may possess a very high degree of intelligence, another man may not. One man may be highly educated, another may have no education. One man may be able to read and write and to talk learnedly and intelligently, and another may not. But because a man cannot read or write, or has not received a high degree of education, he is not thereby prevented from making a will. Otherwise, people who walk in humble life and have not received much education or school learning, might be judged incapable of transferring property which they have earned by their daily toil. All that the law requires is, Did the man at the time of making the will understand the business in which he was engaged, and the disposition he was about to make of his property. If he did, his testamentary capacity is established. And if, under all the facts in this case, you believe John Pennypacker possessed that degree of mental capacity, you are bound to render a verdict in favor of the plaintiffs in support of the will.

Now, what is the evidence in this case? I do not propose to refer to the whole of this evidence, because that will be impossible. I would have to read over the notes of testimony to do that; you will recollect the details, for I can only refer to it in a general way, and I do so simply to explain to you the law which you are to apply to the facts in the case.

On the 7th of November, 1879, this paper was drawn up and signed by John Pennypacker. Under the Act of Assembly, every man of the age of twenty-one years has a right to make a will; and if he is a man of proper mental capacity, and attaches his name to a paper setting forth the disposition of his property, that is all that is necessary to be done by