the proponents' favor. Its tendency was to show that, to the contestant's knowledge, he was not looked upon favorably by his father, and so it affected the credit to be given to contestant's testimony that there was great family affection between them. The exception is not sustained.

The evidence of the proponents tended to show that the testator had stated many times, both before and after the will was made, that he had given his two sons a large farm with stock. The contestant offered evidence tending to show that his father deeded to him and his brother the farm as the father had stated, but that they worked without wages about nine years helping the father carry on the farm, and that, if they had been allowed proper wages, their wages would have equalled the value of the farm. The son Burt testified in cross-examination that when his father bought that farm, the witness was seventeen years old. He was then asked if his father was not entitled to four years of the nine years they were running the farm? Objection being made, this question was excluded and exception saved. Without evidence to this effect being introduced by the proponents, the jury might reason that the testimony on the part of the contestant, that if they (sons) had been allowed "proper wages, conveys the idea, inferentially, that their time was their own (as it might be by gift or purchase from the father), and that "proper wages" means such compensation as they were, in the circumstances, entitled to receive for the services rendered under hire. The manifest purpose of the inquiry was to refute such an inference, and the exclusion of the question was prejudicial error. See Comstock's Admr. v. Jacobs, 84 Vt. 277, 78 Atl. 1017, Ann. Cas. 1913A, 679.

Patrick Connolly, a policeman, called as a witness by contestant, testified in direct examination that there was a time when proponent Glennie's daughter came and wanted an officer to go to the testator's house. The witness was then asked, "What did she say?" The question being answered responsively, the proponents moved to strike out the answer, and excepted to the overruling of the motion. This exception was not well taken. Ford v. Hersey, 92 Vt. 405, 104 Atl. 875.

The proponents made two requests to charge respecting the effect, as evidence, of the subsequent adjudication by the probate court that the testator "is insane and mentally incapable of taking care of his property and of himself", and appointing a

guardian over him. An exception was taken to the court's failure to charge as thus requested, and also to the charge as given on that subject. The exceptions to the noncompliance with the requests are waived, not being briefed. Charging upon the subject, the court said, among other things, "that adjudication being made after this will was executed, is not prima facie evidence that Mr. Clogston was mentally incapable of making a will at the time this will was signed." To this extent, at least, there can be no doubt of the soundness of the charge as given, and since a part of the charge covered by the exception is without fault, the exception is not sustainable. Usher v. Severance, 86 Vt. 523, 86 Atl. 741; State v. Shaw, 89 Vt. 121, 94 Atl. 434, L. R. A. 1915F, 1087.

The court was requested to instruct the jury further that it was proper for them to take into consideration that the comfort of the weak, the dependent, and the aged, depends largely on their testamentary capacity being maintained, and that if they cannot leave property to persons kind to them, they may often be left to suffer from want of kindness, and excepted to the noncompliance therewith. Very likely this might properly have been urged in an argument to the jury by counsel, but there was no occasion for its being made prominent by the court.

The court very pointedly impressed upon the minds of the jurors that they were to determine the mental condition of the testator at the time when the instrument in question was signed, and in so doing they had a right to consider all the evidence before them as to the testator's condition both before and after that day, for the reason that capacity to make a will, at the time of making the one in question, "may be inferred from the soundness or unsoundness of mind found to exist within a reasonable time before and after the time in question." The transcript of the evidence is not before us, and whether the substance of all the evidence bearing on this question is shown by the exceptions does not appear. Therefore error in this part of the charge does not appear. Mr. Greenleaf says: "In the proof of insanity, though the evidence must relate to the time of the act in question, yet evidence of insanity immediately before or after the time is admissible." 2 Greenl. Ev. Sec. 690. To the same effect is the holding in Crocker v. Chase, 57 Vt. 413.

Exception was taken to the court's telling the jury that the matter of Mrs. Glennie's services subsequent to the making of

the will is not to be considered. It is enough to say of this exception that we find no statement in the charge to which it reasonably points.

In the course of its charge the court told the jury that, as had been said to them by contestant's counsel in the argument of the case, this is not a collection suit; to which an exception was noted. This statement by the court, not germane to the case, was well calculated to prejudice the minds of the jurors against the proponents' case in view of the services shown to have been rendered by Mrs. Glennie for the testator before the will was made and afterwards, which had a strong bearing on the naturalness of the will. On exception being taken thereto, the court, evidently realizing the prejudice the objectionable statement might have created, directed the jury to disregard the expression. We do not consider whether, notwithstanding this last direction, the prejudice was likely to remain; for the case being remanded on other grounds, this particular error is not likely to recur on another trial.

Judgment reversed, and cause remanded.

MILES, J., dissenting. For several reasons I cannot agree with my Associates in the disposition made of proponents' tenth exception.

(1) The record shows no objection or exception to the question to Judge Martin which was answered, nor to the answer given to that question, and for verification of this statement, I quote below all that appears in the record before us upon that exception, which is as follows: "Q. Now, was there any objection by Mr. Clogston (the testator) or his counsel to the appointment of a guardian? (Objected to.) Laird: We claim that Mr. Theriault has testified that he made this will and this deed, which was four or five weeks before the guardian was appointed, and that Mr. Clogston was in sound mind and able to do business. Now later he appears in probate court with counsel and no objection is made to the appointment of a guardian. We claim that, to a certain extent, weakens Mr. Theriault's testimony that he was of sound mind four weeks previous to that time. Shurtleff: We claim this for it: This was a declaration, this was an act of Mr. Clogston's, whether he objected or did not object to the appointment of a guardian, and comes in the same as all this evidence has of his acts, particularly this where

he realized his condition. Laird: And we further claim that it confirms the testimony of Elwin Clogston that Mr. Clogston stated that he wanted a guardian appointed when they had the talk in the garden some two or three weeks before. I do not offer to show what they said. I offer to show that they did not say anything. (Objected to, there being nothing in that act that is inconsistent with full testamentary capacity of J. D. Clogston. Admitted subject to exception.) Q. Whether Mr. Clogston on that occasion made any objection to the appointment of a guardian, as you remember? A. He didn't after the evidence was all in. There was, he made, he used some very loud talk during the I can hardly say whether it was in the way of objection or what it was, but during the hearing he made some very loud talk, but I can't say whether that-whether you would say that was objecting or not; but when the evidence was in he was very calm and made no objection."

The record shows, as appears above, that the first question was objected to and the objection was overruled, but no answer was taken. The second question was asked and answer taken without objection to either and without exception to the answer. The majority base their holding upon the assumption that the second question was under objection and exception, upon the theory that the second question was a repetition of the first and brought with it the objection to the first and the ruling of the court upon that objection. To my mind this is not a correct conclusion. The two questions are very dissimilar. The first was offered to weaken the testimony of Theriault, who had testified that at the time the will was executed the testator was of sound and disposing mind, by showing that four or five weeks after the will was executed Theriault, appearing as attorney for the testator at the hearing for the appointment of a guardian, made no objection to such appointment; and, second, it was offered to corroborate the testimony of the contestant; and, third, it was offered as an act and declaration of the testator. It cannot be denied but that the offer made by Laird was applicable to the first question and not to the second; for, if proved, it had no tendency to show the testator's state of mind, but simply to affect the weight to be given to Theriault's testimony. The offer of Shurtleff was not applicable to the first question; for that called for the act and declaration of Theriault as well as that of the testator. In these circumstances it is evident

that counsel for the contestant, not feeling certain that the ruling of the court was sound, decided not to take the answer to the first question, but to change the question so as to avail themselves of the benefit of both offers, by dividing the question objected to into its component parts, and the second question was one of those parts. While we can all agree that the whole is equal to all its parts, I cannot agree that one of the parts is equal to the whole, and hence I maintain that the second question is not a repetition of the first; the second simply calling for an act or declaration of the testator alone. The second question eliminates that portion of the first question to which Laird's offer relates and upon which the ruling of the court, at least, was in part made. This in itself, to my mind, is a sufficient answer to the claim of the majority that the second question was a repetition of the first.

(2) There was no error in the ruling of the court below upon the question under the offer made. It was legitimate to show Theriault's act at the hearing before the probate court as affecting the weight to be given to his testimony on the trial in county court. His failure to object to the appointment of a guardian for the testator, for whom he was appearing as attorney, the testator then and there being charged with being "insane and mentally incapable of taking care of himself and property", being unexplained, had a tendency to affect the weight of his testimony on the trial of this case in county court that the testator was of sound and disposing mind at the time the will was executed four or five weeks before; and, notwithstanding that the further offer to show a declaration of the testator, as bearing upon his then mental condition, was coupled with that offer, it did not render the court's ruling erroneous; for, the offered evidence being admissible for one purpose, it was not error to receive it for that purpose. Comstock's Admr. v. Jacobs, 89 Vt. 133, 94 Atl. 497; Jenness v. Simpson, 84 Vt. 127, 78 Atl. 886; Tenney v. Harvey, 63 Vt. 520, 22 Atl. 659. If there was no error in the ruling of the court upon the objection to the first question, there can be no error claimed under this objection; for there was no other ruling made to which this exception can attach. Looking at the objection made, it becomes clear to me that it was aimed at Laird's offer to show an act of Theriault's inconsistent with his testimony, or was aimed at Shurtleff's offer to show, by the combined act of Theriault and