never be a divided jury. It has long been the settled rule that, in the absence of a statute, and in order to secure freedom of thought, thorough discussion and independence of action, as well as to prevent undue influence and fraud, the construction or weight given to evidence submitted is not a subject of inquiry upon a motion for a new trial. Subdivision 2 of Section 1171 of the Code of Civil Procedure does not change this rule. (Fredericks v. Judah, 73 Cal. 604, 15 Pac. 305; Saltzman v. Telephone Co., 125 Cal. 501, 58 Pac. 169; Griffiths v. Montandon, 4 Idaho, 377, 39 Pac. 549.)

5. There is a very substantial conflict in the evidence, and the contention of the appellant as to insufficiency of the evidence to sustain the findings is without merit. (Babcock v. Maxwell, 29 Mont. 31, 74 Pac. 64.)

The contention that the court submitted to the jury findings respecting issues not raised by the pleadings is made by objecting to instructions which are not before the court. The real question in controversy was the testamentary capacity of dece dent at the date of the instrument purporting to be his last will, and, when the jury found that he was mentally incompetent to make a will, the other findings are immaterial, so far as the ultimate rights of the parties in this proceeding are concerned.

6. It is alleged that the court erred in admitting certain testimony. The witness testified, over objection, as to the condition of the decedent before and after the date of the document alleged to be his will, detailing circumstances relative to his mental and physical condition for six months prior to the date of the instrument. The witness further gave it as his conclusion that the decedent was not mentally competent to make a will It is a well-settled rule that "one not an expert may give an opinion, founded upon observation, that a certain person is sane or insane." The witness in this case detailed the circumstances upon which he based his conclusion, and all his statements went to the jury. There was no error in admitting this testimony. (Lawson, Opinion Evidence, 2d Ed., p. 532.) The witness Fanny Spencer, mother and guardian of the plaintiff, testified

on cross-examination that, some years prior to the institution of these proceedings, similar proceedings had been instituted by her as guardian, and that the same had been dropped. The witness was then asked by appellant to state by whom the proceedings had been dropped. Objection was sustained to the question on the ground that the court records were the best evidence. No attempt appears to have been made in this case to introduce any evidence or raise any question as to another action pending or as to any former adjudication, and, if such attempt had been made, it is quite apparent that the court records in such other proceeding or former adjudication would be the best evidence. It is apparent the appellant was not injured by this ruling of the court.

We recommend that the cause be remanded, with directions that the judgment be modified in accordance with the views herein expressed, and that, upon the entry of the judgment as modified, the judgment and order appealed from be affirmed.

PER CURIAM. For the reasons stated in the foregoing opinion, the cause is remanded to the district court, with directions to modify the judgment entered, by holding the probate of the will set aside only in so far as the interests of the contestant James R. Spencer are concerned; that the interest of said contestant under the law of succession be adjudged; and, as so modified, the judgment and order are affirmed. It is further ordered that each of the parties to this appeal pay his own costs.

Modified and affirmed.

MR. CHIEF JUSTICE BRANTLY, being disqualified, takes no part in this decision.

VOL. XXXI-41

MEMORANDA

OF

DECISIONS RENDERED WITHOUT WRITTEN OPINIONS DURING THE PERIOD EMBRACED

IN THIS VOLUME.

No. 2,083.-STATE EX REL. JAMES DONOVAN, RELATOR, v. DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF MONTANA IN AND FOR LEWIS AND CLARKE COUNTY, RESPONDENT.

Original-Certiorari and mandamus.

Decided June 24, 1904.

PER CURIAM.-The relator's application for a writ of review and mandate is hereby denied and proceeding dismissed.

Mr. James Donovan, Attorney General, pro se.

No. 2,087.-STATE OF MONTANA EX REL. D. P. WORTMAN, RELATOR, v. THE SECOND JUDICIAL DISTRICT COURT IN AND FOR SILVER BOW COUNTY ET AL., RESPONDENTS.

Original Supervisory control.

Decided July 11, 1904.

(642)

PER CURIAM.-Relator's application for a writ of supervisory control or some other appropriate writ herein, is hereby denied.

Messrs. Kirk & Clinton, for Relator.

No. 2,107.-THE STATE OF MONTANA EX REL. THEODORE HENNESSY, RELATOR, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF MONTANA IN AND FOR SILVER BOW COUNTY ET AL., RESPONDENTS.

Original-Supervisory control.

Decided September 24, 1904.

PER CURIAM.-Relator's application for a writ of supervisory control herein is hereby denied.

Mr. B. S. Thresher, for Relator.

No. 2,065.-CHAS. A. LYNCH, RESPONDENT, v. FRED. HERRIG, APPELLANT.

Appeal from District Court, Flathead County; D. F. Smith, Judge.

On motion to dismiss appeal from order denying new trial. Decided September 28, 1904.

PER CURIAM.-Upon motion of respondent herein the appeal from the order denying the motion for a new trial is hereby dismissed.

Mr. S. M. Logan, for Appellant.

Messrs. Noffsinger & Folsom, for Respondent.

No. 1,943.-WM. W. DEWITT, APPELLANT, v. MARGARET MORASE, RESPONDENT.

Appeal from District Court, Fergus County; E. K. Cheadle, Judge.

On motion to dismiss appeal.

Decided September 28, 1904.

PER CURIAM. Upon motion of the respondent herein the appeal is hereby dismissed.

Messrs. Cort & Worden, for Appellant.

Mr. R. Von Tobel, for Respondent.

No. 2,075.-ANNIE M. HYNES, RESPONDENT, v. FRANK E. BARNES, CONSTABLE, APPELLANT.

Appeal from District Court, Granite County; Welling Nap ton, Judge.

On motion to dismiss appeal.