Opinion
(June Term, 1860.)
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.
DEVISAVIT VEL NON, tried before Shepherd, J., at last Spring Term of NEW HANOVER.
Strange and W. A. Wright for propounder.
E. G. Haywood for caveator.
The maker of the will was an aged person of 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 he had the collection of moneys due her for rents. The defendant had no relation except one neice, for whom she had provided by a deed of gift for a house and lot in the said town. It was proved that Mr. Wright carried the message to Mr. Davis, a gentleman of the bar, also in Wilmington, from the 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 go the whole property from her husband, which was shown to be true; also, that her niece had been provided for, which was shown to 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 were left to the jury, with the following instructions from the court:
After explaining to the jury that by undue influence is meant (413) a fraudulent influence, overruling and controlling the 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 scrutinized 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.
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 instruction 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 denied 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 of attorney and client, patron and dependent, and the court below, in noticing this, informs the jury "that dealings between persons bearing (414) these relations, one to another, are to be suspected and scrutinized more closely and carefully 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 authorized to do by the law of the land.
A paper that does not emanate 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 from 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, 18 N.C. 90.
We concur with the court below, therefore, that undue influence must be fraudulent and controlling, and must be shown to the satisfaction of a jury, in a court of law, upon an issue of devisavit vel 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.
PER CURIAM. No error.
Cited: Horah v. Knox, 87 N.C. 490; Wessell v. Rathjohn, 89 N.C. 383; Westbrook v. Wilson, 135 N.C. 402; In re Abee, 146 N.C. 274; Myatt v. Myatt, 149 N.C. 141; In re Craven, 169 N.C. 569; In re Mueller, 170 N.C. 29; In re Broach, 172 N.C. 523; McDonald v. McLendon, 173 N.C. 177.
(415)