I think the decrees appealed from should be reversed because as I view the record there was neither a lack of testamentary capacity on the part of the testator nor was there proof of undue influence exercised upon him in causing the execution of the will which was attacked.

Aside from what is said in the majority opinion this day filed, the decree should be reversed for another reason. One who claimed to be the wife of Francis Gardiner was allowed to testify over the objection of the contestees concerning transactions and communications between the witness and the deceased. The witness was an interested party to this litigation because if this will here under consideration is held invalid she becomes the beneficiary under a former will. Therefore, all of her testimony concerning transactions and communications between herself and the deceased was illegal and prohibited under the provisions of 2705 R. G. S., 4372 C. G. L.

As is shown by the original opinion and judgment of this Court, as expressed in the original opinion by a majority of this Court, was based largely upon that illegal evidence and upon other evidence which had no basis in the record except as it came into the record in the way of expert testimony given in answer to hypothetical questions which hypothetical questions were in turn based upon the evidence which had been given by this witness.

This illegal evidence so permeates the record that it is quite likely that it had some influence in producing what I conceive to be the opposite result to that which has been reflected in the decrees heretofore entered by the lower courts and by this Court. *Page 402