Opinion
(Filed 11 May, 1904.)
Wills — Undue Influence — Fraud — Instructions.
In proceedings to probate a will, an instruction that if the devisees "influenced" the testator the finding should be for the caveators, is not ground for a new trial, in view of the entire charge of the Court herein.
ACTION by J. F. Westbrook and others against Lottie Wilson and others, heard by Judge E. B. Jones and a jury, at January (Special) Term, 1904, of the Superior Court of RUTHERFORD County.
McBrayer Eaves for plaintiffs.
Eaves Bucker for defendants.
This was an issue of devisavit vel non, the caveators being the children and only heirs at law of the alleged testator. The propounders were the children of one Lottie Wilson, to whom the larger portion of the estate was given in the alleged will. The caveators alleged and introduced evidence tending to prove that their father at the date of his will was eighty-two years of age; that by reason of dissipation, sickness and old age, his mental and physical powers were so much impaired that he was incapable of making a valid will or other disposition of his property. That, if not legally incapable of doing so, he was the victim of fraud and undue influence exerted over him by Lottie Wilson, with whom he lived in an illicit relationship, and of her two sons, who were bastards, living in the same house. That the said Lottie Wilson, an unchaste, immoral woman, wielded an almost irresistible influence over him. That by reason of his age, condition of health and an accident sustained by being thrown from a mule, he was easily influenced by said Lottie Wilson, who had absolute control over him. The two sons of said Lottie were named as executors to the alleged will; that he was coerced and compelled to sign it by threats and other undue influence of the said (401) parties. The propounders, admitting the age and infirm condition of the alleged testator, denied that he was incapable of executing the will or that any undue influence or coercion was exerted over him. The usual issue was submitted to the jury, to which they responded in the negative, and from the judgment rendered thereon the propounders appealed.
The only exception and assignment of error in the record is directed to the eighth special instruction given in response to the prayer of the caveators, to wit: "The burden is upon the caveators to establish fraud or undue influence, and in passing upon this question it is your duty to take into consideration the relation of the alleged testator to the devisees; his age and state of health at the time; the circumstances surrounding him, and the manner of disposition of such property; and if from all the circumstances surrounding the execution of the said paper-writing, you shall find that the said paper-writing was influenced by the beneficiaries, or any of them, then you will answer the issue No." The criticism of this instruction is to the use the word "influenced" in the concluding sentence, in the absence of any qualifying word. The propounders say that thereby the jury were instructed to return a verdict in condemnation of the will if they found that the alleged testator was in any way, or to any extent, influenced to execute it by the propounders. The exception is well taken and must be sustained unless, as contended by the caveators, the error is rendered harmless by what is said in other portions of the charge. That a person may by proper influences be induced to make a valid disposition of his property is well settled. As if such influences be addressed to his sense of justice, his affection, or his relation to other persons, there can (402) be no possible valid objection, either in law or morals. The kind and degree of influence which the law denounces as undue, and therefore vitiating, are such as overrule and control, dominate and direct the mind and will of the person operated upon. Wright v. Howe, 52 N.C. 412. It is a fraudulent influence which controls the mind of the testator so as to induce him to make a will which he would not have otherwise made. Marshall v. Flinn, 49 N.C. 199.
The caveators make no contention in regard to the law, but direct attention to the entire charge of his Honor, and say that when read as a whole instruction it is impossible for the jury to have been misled by the failure at this point to use the word "undue" or some other appropriate term. It is settled that if a charge is contradictory in presenting material aspects of the law a new trial will be awarded. This must be so, because this Court cannot know to what extent the jury is misled or confused. Williams v. Haid, 118 N.C. 481. It is equally well settled that when reading the entire charge it is manifest that the jury could not in any reasonable view have misunderstood the real matter in controversy, or the law bearing thereon, a new trial will not be awarded. To the criticism made of the charge in Lewis v. Sloan, 68 N.C. 557, this Court said: "But upon a consideration of the instructions as a whole, we think they called the attention of the jury, as fairly as could be expected under the circumstances, to the material questions upon which they were to pass." The same rule is announced and followed in Dills v. Hampton, 92 N.C. 565, and State v. Keen, 95 N.C. 646.
His Honor's charge was very full and clear. There is no possible criticism to be made of it, certainly not by the propounders, except in the particular pointed out. He gave the jury a full and clear (403) statement of the contentions of the parties and of the testimony. He also stated correctly the definition and test of mental capacity requisite to make a will, and of what constituted such undue influence as would invalidate a will. He further said that "The caveators contend that if you should find that at all times the testator had sufficient mind to apprehend, understand and know the consequences of his act in making the will and disposing of his property, yet the evidence shows that the testator's mind was very weak and feeble; that his disease was such as to weaken his mind; that being weak in body and mind he was surrounded by the beneficiaries of the will, and that their influence, domination and control over him were such as to put him) in fear, to coerce and influence and force his conduct in writing the will as it was made, and by these means the will of the testator was perverted from its free action or thrust aside entirely, and the will of the beneficiaries substituted for the will of the testator; the caveators must show to you by the greater weight of evidence that these infectious influences existed, and that they, the beneficiaries, were successful in procuring the making of the will as it was made. If you find as a fact from the evidence that the testator lived an adulterous life, cut loose and abandoned his children begotten in lawful wedlock, and lived entirely, or a greater part of the time, with Lottie Wilson, his mistress, treating her as his lawful wife and recognizing the children begotten by her as his offspring, these facts and circumstances alone would not be sufficient to show fraud, undue influence and coercion in making the will; but you may consider them along with other facts and circumstances in passing upon the question of fraud, undue influence and coercion, which is alleged by the caveators to have existed at the time of the execution of the will. If you find there was no fraud, undue influence, coercion or threats which procured the execution of the will, and that the testator had mental capacity to make the will on the 24th of February, 1903, it (404) would be your duty to answer the issue Yes."
We think that in view of this clear and explicit instruction in regard to the kind and degree of influence which would invalidate the will, the jury could not have understood his Honor to say, or to mean, that any other test should be applied to the will, or that they should disregard all that he had theretofore said to them upon that point. The language of Mr. Justice Montgomery in Crenshaw v. Johnson, 120 N.C. 270, is directly in point: "If the charge, on the whole, was not full and clear on the point to which the exception is directed, we would have no hesitancy in ordering a new trial for the reason set out in the exception. But upon reading the whole charge it is perfectly clear that on this point the jury could not have been misled. The language used by the judge, when taken in connection with the balance of the charge, was so manifestly an inadvertence that it could have produced no harm." After a careful examination of the entire record we find no reversible error. While it is not our province to pass upon the verdict, we think that it is amply supported by the evidence sent up to this Court. We are not sure that his Honor should not have told the jury that if they found the facts in regard to the age, mental and physical condition, habits, etc., of the testator, coupled with his relations with Lottie Wilson and her sons, to be as contended by the caveators, the burden of proof would have been on them to rebut the presumption of undue influence. Wills made by men under such conditions and surroundings should be sustained only when it clearly appears that they are the offspring of a sound and disposing mind, free from the baleful influence of those who have obtained control of the maker. There is
No error.