The opinion of the court was delivered, January 3d 1871, by
Sharswood, J.
— The main contest on the trial of the feigned issue in the court below was, as to the mental competency of the alleged testator to make a will, at the time the paper propounded was executed. Upon that subject in all its aspects, as presented by the evidence, the learned judge delivered to the jury an able and lucid charge, explaining to them, clearly, what was the legal standard of testamentary capacity. To the charge in regard to that question no error has been assigned, except to a single paragraph, extracted from the body of it, and by which it is supposed, contrary to the whole tenor of his instructions, that the jury were told that there were no legal rules, but that it was committed entirely to their discretion. We must read the passage in connection with what preceded and followed, and so interpreted, it could not have been misunderstood. All that the learned judge meant to observe was that, as there was an infinite diversity in the minds of men, both in a sound and an unsound state, it was not possible for the law to draw any marked line, so as to say, on this side is sanity, on that insanity; that certain actions are the acts of a man incompetent to make a will, because the same actions may evince such incompetency in one man, but fall far short of it in another. Eccentricity is not insanity or mental incompetency, nor always even evidence of it. A man may all his life have [293]*293strange and unusual, and even ridiculous ways, from habitual indulgence in mere absence of thought — in reveries or daydreams — he may dodge his acquaintances — behave as though he saw things having no existence but in his imagination, and yet thereby evince no want of testamentary capacity. But if, after having attained mature life without exhibiting any such eccentricities, his character afterwards undergoes a change, it may well induce a belief that it is the result of some morbid condition of his intellectual faculties, especially when connected with any lesion or derangement of the physical organism. We see no error, therefore, in this part of the charge, which is the subject of the 3d assignment.
The most important question in the cause is, whether there was any evidence of undue influence exercised over the mind of the testator in the making of the will in question, which justified the court in submitting to the jury to find a verdict ágainst its validity on that ground alone. This is raised by the 1st and 3d assignments of error, which may therefore be considered together.
Undue influence is very nearly allied to fraud, yet it may be true that they are not identical, so that while undue influence comprehends fraud — fraud by no means embraces every species of undue influence: Redfield on Wills 510, n. A person, for a very disinterested purpose, and because he sincerely believes that it is the duty of a testator to make a will of a particular character, may carry his persuasion and influence beyond that point which is legitimate. Yet it would hardly deserve so harsh a name as fraud. But where the end and purpose of the influence is the benefit of the party employing it, it is not easy to distinguish and save it from that imputation. Hence, when the party upon whom rests the charge, derives none, or a very inconsiderable benefit from the will, there must undoubtedly be evidence of direct influence exerted at the time of making the will; such as in effect to destroy the free agency of the testator: Eckert v. Flowry, 7 Wright 46. But where, being an entire stranger — having no claims from lawful relationship — he derives a very considerable benefit from the act, such direct proof ought not to be, and is not required. Such was the case of Dean v. Negley, 5 Id. 312. General evidence of power exercised over the testator, especially if he be of comparatively weak mind from age or bodily infirmity, though not to such an extent as to destroy testamentary capacity, will be enough to raise a presumption, which ought to be met and overcome before such a will can be established. Particularly ought this to be the rule when the party to be benefited stands in a confidential relation to the testator. “ Where the party,” says Mr. Redfield, “ to be benefited by the will has a controlling agency in procuring its formal execution, it is universally regarded as a very suspicious circumstance, and one requiring the fullest expía[294]*294hation. Thus, where a will was written by an attorney or solicitor, who is to be benefited by its provisions, it was considered that this circumstance should excite stricter scrutiny, and required clearer proof of capacity, and the free exercise of voluntary choice:” Redfield on Wills 515, citing Duffield v. Robeson, 2 Harring. 384. Undoubtedly if the counsel of an old man whose mental faculties are impaired, though not destroyed by advanced age, should draw for him a will giving to himself the bulk of his estate, or a very considerable part of it, it would not be enough to show the formal execution of the paper, in the presence of two subscribing witnesses called in for the purpose. He must go further, and rebut the presumption by some evidence that the disposition made was the exercise of the free will of the testator. “ The existence of that fiduciary relation,” says Mr. Redfield, “does not annul the testamentary act in favor of the attorney by his client; but such fact calls for watchfulness, lest some improper influence may have been exercised. There should be very clear evidence of mental capacity and proof independent of the factum that the mind free and unbiassed .accompanied the act:” Redfield on Wills 529.
Let us see, then, if there was any evidence in this case which raised this presumption and shifted the onus. If there was, it was a question for the jury; and however slight and in themselves insufficient in an ordinary case the circumstances mentioned by the learned judge would have been, there was no error on his part in calling the attention of the jury to them.
John Boyd was a man upwards of seventy years of age,— infirm of body, and certainly not of a strong mind, — exceedingly illiterate — able to write his name, perhaps to read, but not much more — during the latter years of his life showing, to say the least, indications of folly or eccentricity. David Longenecker was not indeed a lawyer, but he was or had been a justice of the peace, and was his adviser in business matters. He acted as the scrivener in drawing this will, two prior ones, and one subsequent. Not to refer to smaller legacies to different members of his family and relatives, it gave a very considerable benefit to him personally. As appears by the instrument itself, and by David Longenecker’s own testimony, John Boyd estimated his estate at thirty thousand dollars. , Besides the mansion-house, lot, stabling, and the dowry of the saddler-shop devised to his wife for her life, and after her decease to be sold and converted into money, he gave to her all the benefits of the Act of Assembly, with fifty dollars additional as her portion. What the value of the real estate was does not appear, but it will be near enough for the sake of the argument to consider this as a bequest to her of ten thousand dollars absolutely. Then he gives ten thousand dollars to his only child, Maggie, with a limitation over in case of her death before twenty-one and marriage, to some twenty persons, among them [295]*295Longenecker and two of his sons.
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The opinion of the court was delivered, January 3d 1871, by
Sharswood, J.
— The main contest on the trial of the feigned issue in the court below was, as to the mental competency of the alleged testator to make a will, at the time the paper propounded was executed. Upon that subject in all its aspects, as presented by the evidence, the learned judge delivered to the jury an able and lucid charge, explaining to them, clearly, what was the legal standard of testamentary capacity. To the charge in regard to that question no error has been assigned, except to a single paragraph, extracted from the body of it, and by which it is supposed, contrary to the whole tenor of his instructions, that the jury were told that there were no legal rules, but that it was committed entirely to their discretion. We must read the passage in connection with what preceded and followed, and so interpreted, it could not have been misunderstood. All that the learned judge meant to observe was that, as there was an infinite diversity in the minds of men, both in a sound and an unsound state, it was not possible for the law to draw any marked line, so as to say, on this side is sanity, on that insanity; that certain actions are the acts of a man incompetent to make a will, because the same actions may evince such incompetency in one man, but fall far short of it in another. Eccentricity is not insanity or mental incompetency, nor always even evidence of it. A man may all his life have [293]*293strange and unusual, and even ridiculous ways, from habitual indulgence in mere absence of thought — in reveries or daydreams — he may dodge his acquaintances — behave as though he saw things having no existence but in his imagination, and yet thereby evince no want of testamentary capacity. But if, after having attained mature life without exhibiting any such eccentricities, his character afterwards undergoes a change, it may well induce a belief that it is the result of some morbid condition of his intellectual faculties, especially when connected with any lesion or derangement of the physical organism. We see no error, therefore, in this part of the charge, which is the subject of the 3d assignment.
The most important question in the cause is, whether there was any evidence of undue influence exercised over the mind of the testator in the making of the will in question, which justified the court in submitting to the jury to find a verdict ágainst its validity on that ground alone. This is raised by the 1st and 3d assignments of error, which may therefore be considered together.
Undue influence is very nearly allied to fraud, yet it may be true that they are not identical, so that while undue influence comprehends fraud — fraud by no means embraces every species of undue influence: Redfield on Wills 510, n. A person, for a very disinterested purpose, and because he sincerely believes that it is the duty of a testator to make a will of a particular character, may carry his persuasion and influence beyond that point which is legitimate. Yet it would hardly deserve so harsh a name as fraud. But where the end and purpose of the influence is the benefit of the party employing it, it is not easy to distinguish and save it from that imputation. Hence, when the party upon whom rests the charge, derives none, or a very inconsiderable benefit from the will, there must undoubtedly be evidence of direct influence exerted at the time of making the will; such as in effect to destroy the free agency of the testator: Eckert v. Flowry, 7 Wright 46. But where, being an entire stranger — having no claims from lawful relationship — he derives a very considerable benefit from the act, such direct proof ought not to be, and is not required. Such was the case of Dean v. Negley, 5 Id. 312. General evidence of power exercised over the testator, especially if he be of comparatively weak mind from age or bodily infirmity, though not to such an extent as to destroy testamentary capacity, will be enough to raise a presumption, which ought to be met and overcome before such a will can be established. Particularly ought this to be the rule when the party to be benefited stands in a confidential relation to the testator. “ Where the party,” says Mr. Redfield, “ to be benefited by the will has a controlling agency in procuring its formal execution, it is universally regarded as a very suspicious circumstance, and one requiring the fullest expía[294]*294hation. Thus, where a will was written by an attorney or solicitor, who is to be benefited by its provisions, it was considered that this circumstance should excite stricter scrutiny, and required clearer proof of capacity, and the free exercise of voluntary choice:” Redfield on Wills 515, citing Duffield v. Robeson, 2 Harring. 384. Undoubtedly if the counsel of an old man whose mental faculties are impaired, though not destroyed by advanced age, should draw for him a will giving to himself the bulk of his estate, or a very considerable part of it, it would not be enough to show the formal execution of the paper, in the presence of two subscribing witnesses called in for the purpose. He must go further, and rebut the presumption by some evidence that the disposition made was the exercise of the free will of the testator. “ The existence of that fiduciary relation,” says Mr. Redfield, “does not annul the testamentary act in favor of the attorney by his client; but such fact calls for watchfulness, lest some improper influence may have been exercised. There should be very clear evidence of mental capacity and proof independent of the factum that the mind free and unbiassed .accompanied the act:” Redfield on Wills 529.
Let us see, then, if there was any evidence in this case which raised this presumption and shifted the onus. If there was, it was a question for the jury; and however slight and in themselves insufficient in an ordinary case the circumstances mentioned by the learned judge would have been, there was no error on his part in calling the attention of the jury to them.
John Boyd was a man upwards of seventy years of age,— infirm of body, and certainly not of a strong mind, — exceedingly illiterate — able to write his name, perhaps to read, but not much more — during the latter years of his life showing, to say the least, indications of folly or eccentricity. David Longenecker was not indeed a lawyer, but he was or had been a justice of the peace, and was his adviser in business matters. He acted as the scrivener in drawing this will, two prior ones, and one subsequent. Not to refer to smaller legacies to different members of his family and relatives, it gave a very considerable benefit to him personally. As appears by the instrument itself, and by David Longenecker’s own testimony, John Boyd estimated his estate at thirty thousand dollars. , Besides the mansion-house, lot, stabling, and the dowry of the saddler-shop devised to his wife for her life, and after her decease to be sold and converted into money, he gave to her all the benefits of the Act of Assembly, with fifty dollars additional as her portion. What the value of the real estate was does not appear, but it will be near enough for the sake of the argument to consider this as a bequest to her of ten thousand dollars absolutely. Then he gives ten thousand dollars to his only child, Maggie, with a limitation over in case of her death before twenty-one and marriage, to some twenty persons, among them [295]*295Longenecker and two of his sons. Then follow several legacies— one of them to a son of Longenecker — amounting, in all, to seventeen hundred dollars; leaving as the residue of his estate, according to his estimate, eight thousand three hundred dollars.
This would be considerably increased by the conversion of his real estate into money after the death of his wife — to what- probable extent does not appear. Then follows: “ And the balance that may remain I bequeath equally to my executors, and any surplus remaining may remain equally in their hands;” and immediately afterwards, as to the money produced by the sale of the real estate: “ the proceeds may remain equally in the hands of my executors for divers good causes, either sold or unsold, as they-,” and here there is a break, leaving the sentence unfinished. David Longenecker and John Boyd, Jr., are then named the executors. Now, is it at all probable, after all this string of .legacies, conditional and absolute, that John Boyd, being a man not apt at figures, — doing all his counting in his head, — would know how much of his estate this balance would probably be ? David Longenecker, in his testimony, does not say that he explained it to him; that he placed before him a calculation showing what the residue thus given to the executors would probably be. In the relation in which he stood it was incumbent upon him to have done this, and, if he had been wise, to call in a disinterested person to witness the fact of his having done so. I consider the following clause also as calculated to strengthen the presumption that John Boyd had no idea what amount of his estate he was thus giving to his executors: “ I have estimated my whole estate at thirty thousand dollars, but should a depreciation occur on bonds, judgments, notes, bank-stock or real estate, that it don’t amount to my estimation, from any cause whatever, then I direct a proportionate reduction on every devise I have made, and a pro rata divide in the same proportion to every legatee; and if my estate comes to my estimate or exceeds-” Here there is another break, and an unfinished sentence. It is clear that the penman intended that the bequest to the wife and child, all the other legacies, and also the residuary bequest, should abate in proportion if the estate fell short of thirty thousand dollars. Is it likely that if John Boyd had supposed that this residue would be one-third part, and including the proceeds of his real estate after his wife’s death, perhaps much more than a third of all his property, that he would not have left the depreciation to fall on that alone ? But that is not all. There was in evidence a previous will of John Boyd, dated February 25th 1867, also drawn by David Longenecker, and of which he and James A. Dick were named as executors, which shows clearly to my apprehension that he did not consider that this residue would be more than a reasonable compensation to his executors for their trouble. The [296]*296frame of the will is very much the same as the present, and the amount of the residue, except as to the real estate, does not differ materially. It provides, “ the balance that may. remain of my estate I will and bequeath equally to my two executors, to be at their control in settlement of my estate and court charges, and for all claims that may justly be paid. I direct that my executors shall be well paid for carrying out my devises, and also attorneys, one or more, under them.” “And lastly, I direct, as before I have directed, that after the legacies are distributed and subject to depreciation and loss, that the remaining balance shall descend to James A. Dick and David Longenecker, my executors, for the expenses, purposes, aforesaid.” In this connection, the conversation detailed by John C. Plumer, in November 1867, was very significant: “ He came to me in November 1867, and wanted me to write his will. He said it would be short; that he had a will in Betsy’s time, in which there was considerable settlement; said he had an heir now, little Maggie, and a wife; they should have it, except two outsiders, and he named them, — John Blackburn and Jerry Boyd.” On a subsequent day there was another conversation upon the same subject. “ Came across wbat be bad said before, that-his wife and Maggie were to have the greater part of his estate, and two outsiders.”
“ It i's always,” remarks Mr. Redfield, “the proper inquiry, in regard to undue influence, whether it operated as part of the transaction in making the will in question. And as that is an act always ambulatory, during the life of the testator, his conduct after its execution is entitled to some weight in determining its validity:” Redfield on Wills 526.
On the whole, we have arrived at the conclusion that there were circumstances in evidence in this case which raised the presumption that David Longenecker had taken advantage of the confidential position he occupied as legal adviser and scrivener, to secure substantial benefits to himself and his family, and that it threw upon the plaintiff in the issue the onus of showing that the provisions of the will were fully explained to and understood by the testator, and fully assented to by him. This, as we have said, necessarily made it a question for the jury, and justified the learned judge in submitting it to them in the manner he did.
In regard to the 4th assignment of error, it is enough to say that it is not according to Rule 8, 6 Harris 578, and therefore is to be holden for none.
Judgment affirmed.