¶1It being conceded that during the trial the matter of the alleged misconduct of two of the jurors, and of the plaintiff in connection with them, was brought to the attention of the court, and then by consent the two jurors were excused, and the trial proceeded with the other ten, the defendant must be held to have waived his right to complain of the misconduct. He could not be permitted to experiment with the jury of ten jurors, and, failing of a verdict from them, insist upon a trial by another jury.
¶2On the special findings of the jury that William Otto had not sufficient mental capacity to execute the bills of sale, the plaintiff is entitled to judgment. The general verdict necessarily follows upon those findings; and, if there was no error affecting them, we need not consider how it was with the issue as to undue influence. And the evidence on the issues thus found was so diverse and conflicting as to make it peculiarly a case in which the finding of the jury either way must be held conclusive.
¶3The fourth and seventh assignments of error affect only the issue of undue influence, and need not be considered.
¶4The question referred to in the fifth assignment of error the court, subsequently, when the witness had more fully shown herself com*311■peteiit to answer, permitted her to answer, so that, if there was ■error in first excluding the answer, it was cured.
¶5The question to defendant when a witness in his own behalf, referred to in the sixth assignment of error, called for what was said on a particular occasion between him and William Otto, deceased, the other party to the contract in controversy. It was: “You may state what, if anything, was said between you as to this $400.” On the face of the question, its purpose, and it was the only purpose suggested by it, was to prove a declaration or admission of the deceased, for which purpose it was, under the statute, incompetent. It was ■objected to on that ground, and the court sustained the objection. It is not permitted a party to covertly mislead a trial court and the opposite party, and, if the defendant asked the question for a purpose not apparent from the question itself, he ought, as soon as it was objected to, and before it was ruled upon, to have stated such purpose. But the defendant waited until the court ruled on the. •question, and then said he offered it on the matter of William Otto’s mental capacity. Alter that no objection was made, and he did not ■ask leave nor offer to renew the question, but went on with the examination as to mental capacity. There was no ruling of the court ■on the competency of the question on the matter of mental capacity, ■and we need not consider that question. For the purpose suggested by the question, it was incompetent.
¶6As a test of capacity or want of capacity to execute the bill of sale in controversy, the court instructed the jury: “If you find from the evidence that he knew at the time he made this bill of sale/ and ■realized, his relations to his family, his wife, the extent of his property which he had at that time, and the effect that this bill of sale would have in disposing of his property, and fully understood the effect of it, then lie had a capacity that the law recognizes as sufficient to execute bills of sale of this character, but if he had not that, then he had not sufficient capacity to execute the bill of sale.” This was excepted to.
¶7This is conceded to be a proper test of capacity to execute a will. But it contains several elements not required in a test of capacity to execute an ordinary single contract. This is not the case, however, of an ordinary single contract. One bill of sale was executed December 30th, another January 2d, and at the latter date a will was *312executed. It is apparent from the evidence that the three instruments disposed of all, except trifling and inconsiderable items, of William Otto’s property; that all were executed when he expected to die in a short time, and in anticipation of death, and for the purpose of making a final disposition of his property with a view to that event. All are to be taken therefore as parts of one transaction, and having one purpose in view, — to make disposition of his property in anticipation of death. In such a case the test of capacity must be the same whether the party attempts to make disposition of his property entirely by will or entirely by ante mortem transfers, or by both. As applied to an attempt to make a disposition of Ms property in either of those ways, the test of capacity stated by the court is the proper one.
¶8Order affirmed.
¶9(Opinion published 59 N. W. 199.)