#### JOSHUA G. WRIGHT, propounder, v. MARY HOWE, caveator.

Undue influence, in order to invalidate a will, must be established to be fraudulent and controlling, and even where the relation of client and attorney •existed, such influence must be made to appear, to the satisfaction of the jury, by that, and other facts of the case, and is not to be inferred from the relation as a matter of law.

Issue of devismit vel non, tried before S:uepherb, ¿T., at the last Spring Term of New Hanover Superior Court.

The maker of the will was an aged person o'f color, living in the town of Wilmington ; and it was proved that she looked to Mr. Wright, the sole legatee, for counsel as -a lawyer, and for protection, habitually, and, occasionally, for small sums of money — it was proved also, that be had the collection of moneys due her for rents. ’The decedent bad no relation except one .niece, tor whom she had .provided, by a deed of gift, for a house and lot in the said town. It was proved that Mr. Wright earned the message to Mr. Davis, a gentleman •of the bar, also in Wilmington, from t.he decedent, Mary Green, as to writing her will, and gave him the instructions how -it was to be done. There was -much corroborating testimony as to the decedent’s purpose of making her will in favor •of Mr. Wright, particularly, that the witness had said her husband’s wish was, that she should give her property in that way, and that she had got the whole property from her husband, which was shown to be true ; also, that her niece had been provided for, which was shown by the deed of gift, and many declarations to the same effect, as tending to show that it was her deliberate intention so to dispose of her property. Her testamentary capacity was established beyond dispute, and the ground of opposition insisted on, was certain declarations of the decedent disclaiming the act as her will, and complaining that she did not understand it, and was unwilling that it should stand as her will. These, and various other facts, of the same tendency, w7ere left to the jury, with the following instructions from the Court:

*413After explaining- to- the jury, that by an- undue influence is-meant a fraudulent influence, over-ruling-and controlling th-e mind of the person operated upon, directed the jury further, that if they should become satisfied that the propounder was in the relation towards the decedent as her attorney, the relation was one of confidence, and their dealings, where the attorney took a benefit from-the act of his client, as in this case, were regarded with suspicion, and were to be scrutinised with a degree of care and closeness, such as would not be required in dealings between those who stood in no such relations. The Court further charged the jury, that an undue influence, fraudulent and controlling, must be shown, and if they were satisfied that it existed in this case, they must find for the defendant, even though Mary Green might have had capacity, but if they were not so satisfied upon all the facts proven,, then, they would find for the propounder. The caveator excepted.

Verdict for the propounder. Judgment and appeal.

/Strange and T7. A. Wright, for the propounder.

E. G. Haywood, for the caveator.

Manly, J.

~We have examined this case, and do not find any error in the instructions excepted to-. The case yields all question as to- the formal execution of the instrument, and its execution by one having sufficient capacity, and makes a question only upon the point of undue influence. Our attention, therefore, is directed to certain instructions upon that point alone. Undue influence is defined to be an influence by fraud or force, or by both, and, in its application to the making of a will, signifies, that through one, or both of these means, the will of the decedent was perverted from its free action, or thrust aside entirely, and the will of the influencing party substituted for it. This definition is substantially given when the jury are told, “ it is a fraudulent influence, overruling or controlling the mind of a person operated on.”

It seems the decedent and the legatee stood in the relation *414‘of attorney and client — patron and dependent, and the Court below, in noticing this, informs the jury “that dealings between persons bearing these relations, one to another, are to be ■suspected and scrutinised more closely and caréfully than dealings between others.” These relations, as facts pertinent to the issue, with the other facts in the cause, bearing upon the point, were submitted to the jury with proper instructions. This is •'all, we think, the Court was authorised to do by the law of :the land.

A paper that does not emenate from the consent of the maker, freely given, is not a will, but the want of such consent, is not a legal conclusion from the relations referred to, •or from any, or all of the facts in the cause. Altogether, these form a body of facts, from which undue influence may ■or may not be inferred. But this inference should be drawn by the jury, and not by the Court; Downey v. Murphy, 1 Dev. and Bat. 90.

We concur with the Court below, therefore, that undue influence must bo fraudulent and controlling, and must be shown to the satisfaction of a jury, in a court of law, upon an issue of devisavit ml non.

No special instructions were asked for by the appellant. Of the instructions given and excepted to, no particular portion has been pointed out as the object of the exception. We have, therefore, gone through the whole, and find no error.

Per Curiam,

Judgment affirmed.