Opinion by

In this issue devisavit vel non the contestants allege want of testamentary capacity' and the exercise of undue influence over the testatrix at the time her will was executed. We have, with proper care, reviewed all the testimony and are unable to discover what could have justified the jury in finding that the testatrix did not at the time she executed her will, possess that intelligent perception and understanding of the disposition she was about to make of her property, which are essential to a valid testamentary distribution of one’s estate. In support of her alleged incapacity, it is true, several witnesses were called who expressed opinions that she was not fit to do business or to make a will, but that of no one of them was based upon facts which sufficiently indicated the disappearance of the intelligence which she needed when she came to dispose of her property; *330and this applies to the two physicians sent to examine her by those interested in procuring opinions that her mind was impaired. The first of these doctors, haying had a single interview with her, lasting but fifteen or twenty minutes, testified that he could not remember whether he had asked her any questions which she refused to answer, but concluded from her looks and age, and because she and her house were unclean, that she was childish and unfit to make a will. The other, as the result of an interview of about the same duration, though unable to recall any question put to her, or whether she had made any reply, thought that she was childish because he had seen her, and tried without success, to lead her into conversation. The old lady might very properly have regarded these two witnesses as intruders in her home and declined to have any communication with them. We need not, however, dwell longer on the absence of proof of her mental incapacity. The learned trial judge in his charge to the jury, said: “ The only evidence in this case which of itself would point strongly to the fact that Mrs. Englert was not of sound mind is the evidence of hallucinations; ” but he ought to have added that as these delusions were not relevant to the will, and there was nothing to show that it resulted from them, they ought not to be regarded as sufficient to set it aside. Upon the whole evidence the jury should not have been allowed to guess that the testatrix was of unsound mind because in their judgment there should have been a different distribution of her estate. In cases like this the only sure protection to the estates of the dead, passing to beneficiaries under their wills, can befound in the court; and most appropriate now are the words of our Brother Mitchell, in Shreiner v. Shreiner, 178 Pa. 57, in which a will was declared valid that had been torn to pieces by the whims of a jury: “ Upon the whole case we have, first, delusions showing impairment of mind in some directions, but not in any way relevant to the making of a will; failure of memory as to persons, places and recent small occurrences, but not shown to extend to a single serious matter; and the opinions of a number of witnesses, most of them unlearned on the subject, that the testatrix was unfit to make a will.” The burden having been upon the appellees to submit proper proofs of their contention, and having failed so to do, it is unnecessary for us to refer to what plaintiff proved—to the testimony of the subscribing wit*331nesses to the will, of the inmates of the house in which testatrix lived, of her own physician, of two others who made a careful examination of her condition, of the priest who visited her in her last sickness and of the neighbors who had seen her for months—all speaking for her intelligence in executing the will of April 2, 1898, in which the special object of her bounty was the same son who had been her chief concern in her former will of June 15, 1891.

The first point presented by the appellant was “that upon the question of undue influence, the verdict should be for the plaintiff.” This was refused. It should have been affirmed. “ Undoubtedly undue influence may so operate as to destroy a will, for in such a case the testator is not a free agent; he becomes the mere implement of another’s craft, and his testament that of the superior will. But influence short of this is not what is technically known as ‘undue influence.’ This term has been carefully defined and its effect considered in many of our own cases, among others, Thompson v. Kyner, 65 Pa. 868, Eckert v. Flowry, 43 Pa. 46, McMahon v. Ryan, 20 Pa. 329, and Tawney v. Long, 76 Pa. 106. According to these cases, undue influence may be exercised either through threats or fraud; but however used it must, in order to avoid a will, destroy the free agency of the testator at the time and in the very act of making the testament. Solicitations, however importunate cannot of themselves constitute undue influence; for though these may have a constraining effect, they do not destroy the testator’s power to freely dispose of his estate: ” Trost v. Dingier, 118 Pa. 259. The testimony will be searched in vain to find undue influence tested by the foregoing, if it can be found at all. The jury should have been instructed to find for the will. The judgment' is reversed, the issue directed to be set aside and the costs are to be paid by the appellees.