Opinion of the Court. point an executive committee, it would retain and might exercise all the functions of party representation, including authority to recommend its representative in the board of deputy supervisors of elections. Not only did this settled interpretation of the statute result from a rational view of its provisions and of its evident purpose, but it was encouraged by official information and instruction issued from the office of the defendant for the guidance of the public and subordinate election officers. Such information was issued by the defendant himself in 1911, following, as he says, the custom of his predecessors. Speaking of this particular function of a committee he says: "Where a county central committee exercises full control and management of the political affairs of the county and has not conferred such authority upon an executive committee, then the central committee would be authorized to make such recommendation. But if the central committee has duly appointed an executive committee with power to act in the management and control of the political affairs of the county until the creation of a new committee, such executive committee would have authority to make such recommendation." That this instruction was imparted by the predecessors of the defendant whom he followed in the view which it expresses does not detract from, but adds to, its significance. As he can have no interest adverse to the performance of his duties to the public, the instruction is not offered as an estoppel, but to show the uniform and established interpretation from which it is now, for the first time, proposed to depart. Certainly this cortical interpretation should not be adopted for the Statement of the Case. purpose of annulling acts already taken in obedience to a substantial view of the law followed without question for more than twenty years. Demurrer overruled and peremptory writ allowed. NICHOLS, C. J., JOHNSON, WANAMAKER and NEWMAN, JJ., concur. DUNLAP, EXECUTOR, ET AL. v. Dunlap et al. Question of capacity of testator-To form intention of disposing of property by will-Admission of such testimony not error, when. In proceedings in contest of last will and testament the question: "You may also further state whether or not he [the testator] had capacity to form a purpose and intention of disposing of his property by will" does not come within the rule of inhibition laid down by this court in case of Runyan v. Price, 15 Ohio St., 1, and the admission of such testimony by trial court is not error justifying the setting aside of a verdict of a jury sustaining the validity of a last will and testament. (No. 13373-Decided October 21, 1913.) ERROR to the Circuit Court of Harrison county. On the 30th of December, 1908, Samuel Dunlap, a resident of Harrison county, Ohio, died leaving a last will and testament whereby Pattison Dunlap was named both as sole legatee and devisee and as executor of the instrument. On August 3, 1910, John A. Dunlap and others commenced an action in contest of the will in the Statement of the Case. common pleas court of Harrison county, the ground of contest being that "the testator at the time of the execution of the paper writing was mentally incapacitated, by reason of extreme age, protracted sickness and mental decay, from making a valid will or legal distribution of his property." In due course of time the matter was submitted to a jury and a verdict was returned sustaining the validity of the will. The plaintiffs below filed their motion to set aside the verdict and for a new trial. Among other grounds assigned in this motion was one to the effect that the verdict was against the weight of the evidence and another that the court erred in admission of testimony tendered by the proponents of the will, to which the contestants objected. The court overruled the motion and entered judgment on the verdict. Thereupon the plaintiffs below instituted proceedings in the circuit court to reverse the judgment of the court of common pleas. The circuit court of Harrison county reversed the trial court on the ground that error to the prejudice of the contestants had been committed by the trial court in the ruling of the court permitting W. R. Kirkpatrick and J. R. Finney, the subscribing witnesses to the will, to answer certain questions as follows: First, Kirkpatrick question: "You may also further state whether or not he [the testator] had capacity to form a purpose and intention of disposing of his property by will. Answer. I think that he had." Opinion of the Court. Second, Finney question: "I will ask you to state now upon that occasion whether, in your judgment, he had sufficient mind and memory to form an intention and purpose to dispose of his property by will. Answer. Answer. At the time I signed the will I thought he was as far as I was capable of judging." The circuit court found no other error in the record. Thereafter error was prosecuted to the supreme court to reverse the judgment of the circuit court. Messrs. Hollingsworth & Worley, for plaintiffs in error. Mr. R. H. Minteer, for defendants in error. NICHOLS, C. J. Do these two questions, substantially alike as they are, come within the inhibition of the rule laid down by this court in the third proposition of the syllabus of the familiar case of Runyan v. Price, 15 Ohio St., 1, and if they do, was the admission of this testimony of a sufficient prejudicial nature to justify the court of review in setting aside the verdict of the jury and the judgment of the trial court? We must answer both of these inquiries negatively. In the case of Runyan v. Price, supra, the objectionable question was: "State what your opinion was, on the evening Bowen called upon you to witness the will, as to the sanity or insanity of William Runyan, or his capacity to make a will." The objection to this question, as found by the court, was twofold: Opinion of the Court. 1. That the inquiry should have been not what his opinion was then, but what it was at the time of trial. 2. That in so far as his opinion was asked as to the capacity of the testator to make a will, it was an invasion of the functions of the jury, since it involved a question of law and fact, and to the extent that capacity was involved in the issue, was the very question to be determined by the jury; and furthermore, the question assumed that the witness knew the degree of capacity which the law required for the performance of the act of executing a will. We do not think the questions asked in the case now before the court are open to the objections of the court in Runyan v. Price, supra. To ask a witness if the testator had sufficient mind and memory to form an intention and purpose to dispose of his property by will, is not equivalent to nor is it open to the same objections as is the question: "Had the testator sufficient capacity to make a will?" The capacity to make a will is much more comprehensive than a mere capacity to form an intention and purpose to make a will. The latter is merely one of the elements necessarily present in such testamentary capacity. One might have the one and yet utterly lack the other essential features, i. e. First, that of an understanding of the nature and extent of his property; second, to know and appreciate his family connections and their natural claims, if any, upon his bounty. Furthermore, he might have had the "capacity," or as the question reads, the "mind and memory," to form an intention and purpose to make a will |