¶1The will of the testatrix was contested by her brother and two sisters on the grounds, “that at the time it is alleged she executed said will, she was wanting in testamentary capacity,” and “that fraud and undue influence were brought to bear upon the said Savannah Shofner, in the procurement of the execution of said instrument.”
¶2The execution of the will was duly proved by its two subscribing witnesses, one offeied by the proponent, and the other by the contestants, who show that it was executed freely and voluntarily.
¶3We have carefully examined the evidence in the transcript. It would serve no good purpose to review it. It is practically without conflict, and shows, with all reasonable certainty, that neither of the grounds, on which the will was contested, had any foundation in'fact; but, it does satisfactorily appear that the testatrix had enough testamentary capacity and made her will, disposing of her property, according to her own desires, and without any undue influence.
¶4If this case is to be tried again, it should be disencumbered of much illegal evidence that was admitted on the other trial, some of it, so far as appears, without objection. That J. K. Murphree, the father of the devisee and legatee, was a rich man, had nothing to do with the issues. The unsigned and undated letter, found after her death among her papers, purporting to have been written by testatrix to J. KA Murphree, was not competent to go to the jury ; nor wuis the acquaintanceship of Mrs. L. A. Senn and F. B. Lignoskki shown to have been so long and intimate with the testator, as to authorize them to give their opinion of testatrix’ mental capacity, without stating the facts upon which they based their opinions. The first named lived in Texas, and testified that while on a visit to her sister (the testatrix) in 1870 or 1871, “she acted like a crazy woman and the other, who lived in the same house with her, in 1890 or 1891, *428stated that he saw her “act strangely.” Our late case of Burney v. Torrey,, 100 Ala, 157, lays down the rules on this subject so clearly, as to be a sufficient guide to the court on another trial, if had. It may be stated further, that if it were shown from the facts stated, that so far back as 1870 or 1871, testatrix acted, on one occasion, like she was temporarily crazy, that fact would not even tend to show that she was withont testamentary capacity in-December, 1891, when she executed her will, unless such mental aberation were shown to have had some connection with her condition at the latter date, by proof of intervening periods of mental disturbance. The enquiry in such cases is directed to the mental capacity of the party at the time of the execution of .the will. That was the issue on that point, tendered by contestants, in their allegation that testatrix was then mentally incapable of executing the will; and the burden was on them to establish that fact, to the satisfaction of the jury. There was no evidence outside of that referred to, given by these two witnesses, that tended to support this allegation, and that was not pertinent. Generally, without more, in the case of a person shown to have been of Continuous, exceptional testamentary capacity, the fact that she was temporarily beside herself twenty years previously, would not show that she continued to be or was deranged, when she made her will. If it were shown that a testator was insane at any time prior to the making of the will, this fact would not support the presumption, that the insanity continued to the making of the will, unless it were also shown, that the insanity was habitual and fixed, The burden was on contestants to establish such incapacity before the proponent could be called on to show, that the will was made in a lucid interval. — Johnson v. Armstrong, 97 Ala. 731; Henry v. Hall, 17 So. Rep. 187; O’Donnell v. Rodiger, 76 Ala. 222.
¶5The general charge as requested by the • proponent should have been given, and the charges asked and given for contestants should have been refused.
¶6Reversed and remanded.