#### In re WILL OF AMELIA EVERETT.

(Filed 21 September, 1910.)

Wills — Devisavit Vel Non — Undue Influence — Confidential Advisor— Evidence, Sufficient.

In an action to set aside a will for undue influence, evidence is sufficient to go to tbe'jury wbicb tends to show that deceased was illiterate, and devised or bequeathed her whole estate to her brother and his daughter, leaving to her son, the caveator, only $10; that the brother, her confidential business advisor, upon whom she relied, had the testatrix at his house during her last illness, and at that time would not permit the caveator to see his mother without the presence of himself or his daughter, and had the will written and signed under circumstances tending to show that the testatrix was unaware of its contents and kept it in his own possession; that the testatrix had theretofore expressed the desire of providing for her son, with whom she was on good terms; that he procured the testatrix, just before her death to sign a check drawing all her money from the bank, which he gave to his daughter, who then left and remained from the State. The doctrine of presumptions, burden of proof and the character of the evidence' required, discussed by Brown, J.

Appeal from Ferguson, J., at January Special Term, 1910, of WASHINGTON.

Tbis is an issue of devisavit vel non.

Tbe propounders of tbe will are Addison Everett, tbe brother of testatrix, tbe executor to tbe will, and certain other legatees. Tbe caveator is Harry Wheelock, tbe only son of testatrix.

Tbis issue was submitted: Is tbe paper-writing propounded and every part thereof tbe last will and testament of Amelia Everett? Answer, No.

From tbe judgment rendered tbe propounders appeal. Tbe facts are fully stated in tbe opinion of tbe Court.

*84Brown, J.

Tbe only assignment of error presented bere is tbe refusal of tbe judge to charge tbe jury tbat there is no sufficient evidence of undue influence.

Tbe testimony tends strongly to prove tbat Addison Everett, the executor, was the business adviser of bis sister, the testatrix; tbat a few days before her death, at a time when she was very sick in bed, be procured from her a check for about $900, all the money she bad in bank; tbat Addison stated be was getting the money for testatrix’ mother, but in fact be gave it to bis own daughter, who afterwards left for New York and has not returned. Said daughter was in the room when the will was signed, and bad the will when the witness entered the room. When Addison went in the room with the witnesses, be said, “Here are parties to witness will” All the witnesses agreed tbat from the time the parties entered the room, up to the time they left, the sick woman did not speak a word to anybody about the will or anything else, she being in bed in desperate condition at the time. Addison was appointed executor. He got a large part of the dead woman’s property. His wife, bis daughters and bis brother got all the balance of her property, except ten dollars, which by the terms of the will were given to her son. It appears tbat the son sent some squirrels to bis mother, who was sick, and when Addison saw the son be offered to pay him for the squirrels. It appears tbat the daughter of Addison offered to pay the sick woman’s son for something be bad sent her to drink. It appears from the testimony tbat the only person from whom the sick woman bad been in the habit of getting advice about her business affairs was Addison Everett. She was sick in Addison’s bouse at time referred to. It further appears tbat Addison, when the witnesses went in the room, after saying, “Here are the witnesses to sign the paper,” himself got the pen for D. Lee, one of the witnesses, to sign. It further appears tbat after the woman was dead Addison refused to let her son go in the room to see her body until one of bis daughters was there to go in with him, and tbat Addison himself took sole charge of the funeral arrangements; tbat be has always “been against the caveator,” to use the language of Wheelock, and tbat in arranging for the funeral he put himself and family to follow the corpse, then allowing a *85lot of people wbo were not related in any way to the dead woman to come immediately behind bis family, and tbat the caveator, the only son of the dead woman, was assigned to a place at the back end of the procession; tbat after said will had been offered for probate before the clerk, Addison remarked to said son tbat bis mother bad given him more than she ongbt to have given him. It appears from Wheelock’s testimony tbat Addison, bis wife and daughter, would give him no opportunity at any time to talk to bis mother without one or more of them being in the room with her; tbat be and bis mother were friendly and be went to see her each day. It appears tbat the will was written by one Johnson, wbo says the deceased never spoke to him about it; tbat be wrote it at the instance of an attorney, in the attorney’s office, testatrix not being present, and said attorney was in the court-room during the entire trial, and propounder did not put him on the stand as a witness; tbat the woman, for years before her death, bad been friendly with her son, and bad said she intended to properly provide for him. Tinder the will the executor, Addison Everett, and bis daughters get practically the testatrix’ entire estate.

Experience has shown tbat direct proof of undue or fraudulent influence is rarely attainable, but inference from circumstances must determine it. Therefore, it seems to be generally held tbat when a will is executed through tbe intervention of a person occupying a confidential relation towards tbe testatrix, whereby such person is tbe executor and a large beneficiary under tbe will, such circumstances create a strong suspicion tbat an undue or fraudulent influence has been exerted, and then tbe law casts upon him tbe burden of removing tbe suspicion by offering proof showing tbat tbe will was tbe free and voluntary act of tbe testator. Pritchard on Wills, sec. 133, and cases cited. Watterson v. Watterson, 1 Head., 1; Gardner on Wills; Maxwell v. Hill, 5 Pick., 584; sec. 62; Schonles, sec. 240.

In such condition of tbe proof, as said by Gardner, “tbe proponent must then go on with tbe evidence and cause tbe scales to at least balance.” Wills, sec. 62; Coghill v. Kennedy, 119 Ala., 641.

Tbe decided eases are numerous wherein some feeble, decrepit *86or dying person appears, as in this instance, to have been brought under a strong and exclusive influence to make an unfair will suck as the testator was not likely to have made at Ms own instance. Then conbined circumstances, less suspicious than those in evidence here, become of great consequence and easily shift the burden of proof of bona fides upon those who set up the instrument and claim its benefits. Marx v. McGlyn, 88 N. Y., 357; Harvey v. Sullen, 46 Mo., 147; Ray v. Ray, 98 N. C., 566; Schonles, sec. 240, and cases cited.

By the Roman law qui se scripsit hacredem could take no benefit under the will. "While such is not the rule of the common law, yet that law requires proof which must free the paper from suspicion. It was long ago laid down by Sir John Nichol in Parker v. Ollatt (2 Phillim, 323), and approved by Baron Parke in Barry v. Butlin, 12 Eng. Reports, that where a party prepares or procures the execution of a will under which he takes a benefit, that of itself is a circumstance that ought generally to excite suspicion and calls upon the court to be vigilant in examining the evidence in support of the instrument, in favor of which it ought not to pronounce unless the suspicion is removed, and it is satisfied that the paper propounded does express the true will of the deceased.

General evidence of power over a testator, especially of weak mind, or suffering from age and bodily infirmity, though not to such an extent as to destroy testamentary capacity, has been held in this country to be enough to raise a presumption that ought to be met and overcome before a will is allowed to be established. Robinson v. Robinson, 203 Pa. St., 403; Miller v. Miller, 187 Pa., 572; Boyd v. Boyd, 66 Pa., 283. In this last case, referring to above rule the Court says: “Particularly ought this to be the rule when the party benefited stands in a confidential relation with the testator.”

Judge Redfield says: “Where the party to be benefited by the will has a controlling agency in procuring its execution, it is universally regarded as a very suspicious circumstance and one requiring the fullest explanation.” Wills, 515.

*87This text bas been adopted and approved generally by the courts of this country. 27 Am. & Eng. Ency., 488; Gardner on Wills, p. 189.

Prof. Wigmore says: “Where the grantee or other beneficiary of a deed or will is a person who has maintained intimate relations with the grantor or testator, or has drafted, or advised the terms of the instrument, a presumption of undue influence or of fraud on the part of the beneficiary has often been applied.” Sec. 2503, and cases cited in note.

The courts of appeals of Virginia declare: “When a will executed by an old man differs from his previously expressed intentions and is made in favor of those who stand in relations of confidence or dependence towards him, it raises a violent presumption of undue influence which should be overcome by satisfactory testimony.” Hartman v. Strickler, 82 Va., 238; Whitelaw v. Sims, 90 Va., 588; 1 Jarman Wills, 71, 72.

Undue influence is generally proved by a number of facts, each one of which standing alone may be of little weight, but taken collectively may satisfy a rational mind of its existence.

From the several facts offered in evidence by the caveator the inference is strong that the will in question was the result of a controlling and improper influence upon the part of the pro-pounders and especially the executor. The making and execution of the paper was surrounded by all the indicia of undue influence.

The testatrix was an old and feeble woman in her last illness in the house of propounders. She could not read or write and had to make her mark. There is no evidence that the paper was explained to her or that she fully understood its contents. The inference is strong that the executor, and chief beneficiary, had the paper written at a lawyer’s office and kept possession of it, and that he was “master of ceremonies” at its execution. He and his daughters take the entire estate except ten dollars, which is the sole legacy to testator’s only child, for whom she had, only, a short time before, expressed a purpose to properly provide.

Shortly before the execution of the will the executor had procured from testator a check for her entire bank funds and given them to his own daughter. The son was carefully excluded from *88any private conversation or intercourse with Ms mother, and not permitted to see her except in presence of propounder’s wife and daughters. The executor was for years her confidential adviser and business- agent as well as brother.

.In'view of such facts in evidence, under the rulings of many courts,- as well as the teachings of text-writers, the doctrine of presumptions would be applied and the burden be cast upon the propounders to rebut a presumption of fraud and undue influence.

■;'But it is not necessary that we pass on that question now, as the court below, so far as the record discloses, did not apply the doctrine or'place such burden upon the propounders. His Honor appears to have submitted the question of undue influence to the consideration of the jury without instruction as to the burden of proof, and to the chargé as given no exception seems to have been taken.

No error.