Mr. Justice Green
delivered the opinion of the court, January 3d, 1887.
There is no merit in the first assignment of error. We‘ have frequently held that the action of the court below in giving the conclusion of the argument to counsel for one side or[37]*37tbe other is not reviewable on error. But here the main, burthen of the case rested with the contestants to the conclusion of the contest. It was for them to satisfy the jury as to the truth of their allegations, and there was, therefore, propriety in awarding to their counsel the right to begin and conclude the final argument to the jury. What was said by the court below in regard to the shifting of the burthen-of proof in certain circumstances was contingent upon a finding of certain facts by the jury, which finding could not be known in advance and was itself a part of the general duty of the jury. Nor can we say there was error in the language covered by the second assignment. Beyond question, if the will had been written by a stranger who was by its terms the principal beneficiary, the burthen of proving that the testatrix was acquainted with its contents, and had an intelligent consciousness of the proportion of the estate to be taken b3r the beneficiary, would rest upon him. But the court below made a most ample exception to this rule in favor of the plaintiff, because he was a son of the testatrix and therefore had a right of importunity in his own favor without incurring the penalty of affirmative proof. The qualifying language which re-imposed the burthen upon him in certain circumstances was applicable to the effect of other and additional facts, one of which was that the will was not read to the testatrix, nor by her, nor explained to her before its execution, nor read by her afterwards before her death, providing this and the other facts referred to in the charge should be found by the jury. Certainly, if such facts were found by the jury, the3r would altogether rebut the legal presumption of knowledge of contents, arising from- the mere fact of execution, and then, without the help of affirmative testimony from the proponent showing knowledge of contents and free will in the execution, the jury would be justified, indeed required, to render their verdict against the will. All that the court said was, that if these facts were found the burthen of proof would rest with the proponent, and in this there was no error.
The remaining assignments allege error in submitting to the jury the question whether there was frand or undue influence in procuring the will, on the part of the plaintiff, and whether the will was executed by the testatrix without a knowledge of its contents. Of course these are questions of fact within the exclusive province of the jury, which includes the' credibility of witnesses, and this court is not at libei^ to review and revise the action of the jury, unless we are prepared to say there was no evidence beyond a scintilla, in support of the verdict. After a most patient and careful study of the testimony, we find ourselves unable to take that position. [38]*38The great and very serious difficulty with the plaintiff's case i.s that, by his own testimony, it is almost distinctly and affirmatively proved.that his mother did not know the contents of the will at the time she signed it. He.said he finished its preparation between four and five o’clock on the morning of December 24th and then went to bed. Between nine and ten of the same morning, still having it in his exclusive possession, he showed it to his counsel, and at about ten o’clock, or soon after, he brought it to his mother and left it with her. He admits that he neither read it to her nor explained it to her. He says he was gone for awhile and then returned for a few minute.s and then went for the witnesses. All the persons present at the signing concur in saying that the will was neither read nor explained at the time of execution. The plaintiff admits, and the others testify, that he took the will into his own possession very soon, if not immediately, after it was executed, and it remained there until it was probated. There is no evidence that the testatrix ever saw it, read it, or heard it read or explained at any time after the plaintiff took it on the day of its execution. During the short time the will was accessible to the testatrix, after it was left with her on the day of its execution and before it was signed, her daughter, Mrs. McClure, was with her, and testified that her mother laid the will down on the bed beside her and she did not know what became of it afterwards. She said the will was not read to her mother and was not read at all, and that her mother asked for some paper to make signatures upon while her brother was gone for the witnesses. She does not say her mother read the will, but clearly implies that she did not. When the plaintiff was examined in the Orphans’ Court he did not say his mother'read the will or any part of it or attempted to read it. When he was examined in the Common Pleas, he sought to convey the idea that she read a part of the will, without absolutely testifying that she did actually read it. After all he said was finished, he was asked in cross-examination — and this was the last of his testimony on this subject: “Q. Was she reading it? A. I didn’t say she was. Q. Do you say now she was reading the will? A. No sir, I do not. Q. Do you say she ever read it ? A. I do not say she did. I said she was reading from the beginning, and I thought it was open about there, from articles five to eight.” The time at which he said this took place was during the short interval immediately after he gave her the will and before he went out for the witnesses. It was the same time that Mrs. McClure went into the bath-room, but not longer than four minutes, according to her testimony. After searching the testimony most thoroughly, we cau discover no possible opportunity fo.r [39]*39the testatrix to have become acquainted with the contents of the will, even upon the testimony of the plaintiff, except in this exceedingly short period, and that testimony fails to prove knowledge of the contents, in the least degree satisfactory to a jury or a court. That the plaintiff’s testimony was changed in regard to this most important subject from his first examination in the Orphans’ Court, when he said nothing about his mother’s' having read any part of the will, until he was examined in the Common Pleas, even if he had'then sworn positively to her reading the whole of it, was in itself a most damaging circumstance against his credibility. His pecuniary interest in making the change in his testimony was enormous. His reputation as a man of fairness and honor was also deeply involved. The necessity for a change in his former statement was simply overpowering for, without it, it was scarcely possible to expect a recovery. In such circumstance's the temptation to depart from the strict truth was so very great that the right of a jury to discredit the changed testimony must be conceded. It is scarcely too much to say that no disinterested tribunal would give the slightest credence to it. But the new testimony was not even distnct or positive that the will was actually read by the testatrix. It was inadequate, it was contradictory, it was confused and so uncertain on the point whether there was any real reading of the will by the testatrix, that, even if the witness had been disinterested, the jury would have been entirely justified in giving no weight to it whatever.
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Mr. Justice Green
delivered the opinion of the court, January 3d, 1887.
There is no merit in the first assignment of error. We‘ have frequently held that the action of the court below in giving the conclusion of the argument to counsel for one side or[37]*37tbe other is not reviewable on error. But here the main, burthen of the case rested with the contestants to the conclusion of the contest. It was for them to satisfy the jury as to the truth of their allegations, and there was, therefore, propriety in awarding to their counsel the right to begin and conclude the final argument to the jury. What was said by the court below in regard to the shifting of the burthen-of proof in certain circumstances was contingent upon a finding of certain facts by the jury, which finding could not be known in advance and was itself a part of the general duty of the jury. Nor can we say there was error in the language covered by the second assignment. Beyond question, if the will had been written by a stranger who was by its terms the principal beneficiary, the burthen of proving that the testatrix was acquainted with its contents, and had an intelligent consciousness of the proportion of the estate to be taken b3r the beneficiary, would rest upon him. But the court below made a most ample exception to this rule in favor of the plaintiff, because he was a son of the testatrix and therefore had a right of importunity in his own favor without incurring the penalty of affirmative proof. The qualifying language which re-imposed the burthen upon him in certain circumstances was applicable to the effect of other and additional facts, one of which was that the will was not read to the testatrix, nor by her, nor explained to her before its execution, nor read by her afterwards before her death, providing this and the other facts referred to in the charge should be found by the jury. Certainly, if such facts were found by the jury, the3r would altogether rebut the legal presumption of knowledge of contents, arising from- the mere fact of execution, and then, without the help of affirmative testimony from the proponent showing knowledge of contents and free will in the execution, the jury would be justified, indeed required, to render their verdict against the will. All that the court said was, that if these facts were found the burthen of proof would rest with the proponent, and in this there was no error.
The remaining assignments allege error in submitting to the jury the question whether there was frand or undue influence in procuring the will, on the part of the plaintiff, and whether the will was executed by the testatrix without a knowledge of its contents. Of course these are questions of fact within the exclusive province of the jury, which includes the' credibility of witnesses, and this court is not at libei^ to review and revise the action of the jury, unless we are prepared to say there was no evidence beyond a scintilla, in support of the verdict. After a most patient and careful study of the testimony, we find ourselves unable to take that position. [38]*38The great and very serious difficulty with the plaintiff's case i.s that, by his own testimony, it is almost distinctly and affirmatively proved.that his mother did not know the contents of the will at the time she signed it. He.said he finished its preparation between four and five o’clock on the morning of December 24th and then went to bed. Between nine and ten of the same morning, still having it in his exclusive possession, he showed it to his counsel, and at about ten o’clock, or soon after, he brought it to his mother and left it with her. He admits that he neither read it to her nor explained it to her. He says he was gone for awhile and then returned for a few minute.s and then went for the witnesses. All the persons present at the signing concur in saying that the will was neither read nor explained at the time of execution. The plaintiff admits, and the others testify, that he took the will into his own possession very soon, if not immediately, after it was executed, and it remained there until it was probated. There is no evidence that the testatrix ever saw it, read it, or heard it read or explained at any time after the plaintiff took it on the day of its execution. During the short time the will was accessible to the testatrix, after it was left with her on the day of its execution and before it was signed, her daughter, Mrs. McClure, was with her, and testified that her mother laid the will down on the bed beside her and she did not know what became of it afterwards. She said the will was not read to her mother and was not read at all, and that her mother asked for some paper to make signatures upon while her brother was gone for the witnesses. She does not say her mother read the will, but clearly implies that she did not. When the plaintiff was examined in the Orphans’ Court he did not say his mother'read the will or any part of it or attempted to read it. When he was examined in the Common Pleas, he sought to convey the idea that she read a part of the will, without absolutely testifying that she did actually read it. After all he said was finished, he was asked in cross-examination — and this was the last of his testimony on this subject: “Q. Was she reading it? A. I didn’t say she was. Q. Do you say now she was reading the will? A. No sir, I do not. Q. Do you say she ever read it ? A. I do not say she did. I said she was reading from the beginning, and I thought it was open about there, from articles five to eight.” The time at which he said this took place was during the short interval immediately after he gave her the will and before he went out for the witnesses. It was the same time that Mrs. McClure went into the bath-room, but not longer than four minutes, according to her testimony. After searching the testimony most thoroughly, we cau discover no possible opportunity fo.r [39]*39the testatrix to have become acquainted with the contents of the will, even upon the testimony of the plaintiff, except in this exceedingly short period, and that testimony fails to prove knowledge of the contents, in the least degree satisfactory to a jury or a court. That the plaintiff’s testimony was changed in regard to this most important subject from his first examination in the Orphans’ Court, when he said nothing about his mother’s' having read any part of the will, until he was examined in the Common Pleas, even if he had'then sworn positively to her reading the whole of it, was in itself a most damaging circumstance against his credibility. His pecuniary interest in making the change in his testimony was enormous. His reputation as a man of fairness and honor was also deeply involved. The necessity for a change in his former statement was simply overpowering for, without it, it was scarcely possible to expect a recovery. In such circumstance's the temptation to depart from the strict truth was so very great that the right of a jury to discredit the changed testimony must be conceded. It is scarcely too much to say that no disinterested tribunal would give the slightest credence to it. But the new testimony was not even distnct or positive that the will was actually read by the testatrix. It was inadequate, it was contradictory, it was confused and so uncertain on the point whether there was any real reading of the will by the testatrix, that, even if the witness had been disinterested, the jury would have been entirely justified in giving no weight to it whatever. There were many other considerations, such as the great inequality of the distribution made by the will, the repeatedly expressed declarations made by the testatrix to the effect that she intended to divide her property equally among her children, and her personal relations with her children, which bore as well upon the question of undue influence as upon knowledge of contents, which were or might be fairly influential with the jury. We can not however go into an extended discussion of these matters. It is not necessary. We refer to them only as illustrative of the proposition that there was evidence proper for the determination of the jury on both the issues. It would be quite impossible for us to say as matter of law that there was no evidence beyond a scintilla, tending to show ignorance of the contents of the will. To us it seems clear that the evidence greatly preponderated in favor of the allegation that the testatrix was not acquainted with the contents of the will, and if she was not it can not be said that it was legally her will.
On the question of undue influence of course there was no evidence of physical force or personal constraint. But of that kind of influence which accomplishes its results by misrepre[40]*40sentations, by deceit, by fraud, we cannot say there was no evidence, the plaintiff, unfortunately perhaps for himself, chose to conduct his proceedings in the procurement and the preparation of the will and in the. inducements to his mother to sign it, secretly and by himself alone. There is absolutely no evidence whatever except his own to support his own allegations as to his communications with her. Apparently he was not even willing to suffer the presence of a lawyer, though employed by himself, at his interviews with his mother. He is directly responsible, therefore, for every inference which may fairly be made against him as to the means he employed to obtain the assent of his mother to the execution of the will in question. The evidence of a testamentary intent on her part to make an equal division of her estate among her children comes from so many different persons, is so voluminous, so direct, so emphatic and so entirely credible apparently, that it can not but be regarded as a very important element in the inquiry whether the will she signed expressed her real, or an imposed, intent. It was very easy for -the plaintiff to set this question entirely at rest by simply having her communicate her intentions in the presence of a third person, or by reading the will to her, or explaining it to her, or having her read it in such a presence. But he did not do this, and because he did not do it he is subject fairly to an inference that the will did not contain her true testamentary purpose. For if it did it would not only be largely to his pecuniary interest but to the defence of his character as an honorable man to let at least some' one other person know' the fact from her, that she assented to its terms. Of course, if there were clear proof that she had read it, the same result would have been reached, but there is no such proof. Her condition at the time is also a matter of much importance in this connection. That she was in a state of excessive feebleness and exhaustion, physically, when the will was signed, is proved by so many disinterested witnesses that the plaintiff’s testimony to • the contrary might well be discredited by the jury. In such a state of bodily health the jury might well have inferred a condition of mind easily controlled by one in a confidential relation, as a son to his mother. The undisputed fact, testified to by the plaintiff himself, that he alone had said and done whatever was actually said and done for the purpose of inducing her to make a will, that lie alone, had consulted with her in regard to it, that he alone prepared it and knew its provisions, proved clearly that he was the one person who procured it to be made and executed. If from all the evidence the jury believed that the will she signed did not reflect her true testamentary intent, but something quite different, they wmre justified in inferring that she had been imposed [41]*41upon by lier son, since no one else, under the evidence, could have done so. The immense inequality of division also is á circumstance in support of such a theory. He cannot say, therefore, that there was no evidence of undue influence proper to be submitted to a jury. In making these comments upon the testimony we have not undertaken to present both sides of the case as that is not our proper function. It is not for us to determine the facts upon their merits, but only to show that •there was evidence in support of the verdict sufficient to be submitted to the consideration of the jury for their determination of the issues they were to try. We think it unnecessary to prolong the discussion. The learned judge who tried the cause treated it fairly and dispassionately as it seems to us, and gave to the plaintiff every opportunity to have his views and his facts carefully considered. We see no error in the various matters assigned as erroneous, and must therefore affirm the judgment.
Judgment affirmed.