Lewis, P.,
delivered the opinion of the court.
The bill was filed to impeach a paper writing admitted to probate in the county court of the said county, as the true last will and testament of George Hartman, deceased. The complainants in the bill, the appellees here, are John N. Strickler and Lucy, his wife, the latter being a daughter and one of the heirs-at-law of the decedent. The bill charges, in general terms, that the paper writing, so admitted to probate, is not the will of the decedent, and prays that an issue devisavit vel non be made up and tried at the bar of the court, as directed by the statute.
The defendant, Nathanial B. Hartman, the appellant here, answered the bill, averring that “the said paper writing is the true and lawful last will and testament of the decedent, who, at the time he signed, sealed, and declared it to be such, was of sound mind and disposing memory, and in all respects capable of making his will, and that he made the same of his own free will.”
An issue was accordingly made up and tried at the bar of the court, upon which, the jury rendered a verdict as follows: “We, the jury, find that the paper writing in the bill mentioned, admitted to probate as the last will and testament of George Hartman, deceased, is not the true last will and testament of the said George Hartman, deceased.”
[233]*233The defendant thereupon moved to set aside the verdict as being contrary to the law and the evidence, and for a new trial; but the court overruled the motion, and entered a decree in accordance with the verdict. To this action of the court the defendant excepted, and the evidence is certified in the bill of exceptions.
The probate proceeding in the county court was ex parte, under the provisions of sec. 34, ch. 118, of the Code of 1873. That section also enacts as follows: “After a sentence or order under this section, a person interested, who was not a party to the proceeding, may, within five years, proceed by bill in equity to impeach or establish the will, on which bill a trial by jury shall be ordered, to ascertain whether any, and if any, how much of what was so offered for probate be the will of the decedent. If no such bill be filed within that time, the sentence or order shall be forever binding.”
Under this statute it has been heretofore decided by this court, that though the proceeding to impeach or establish a will admitted to probate is “ by bill in equity,” yet the verdict of a jury rendered upon an issue devisavit vel non stands on a different footing from that of a verdict in an ordinary issue out of chancery. And the reason is obvious. In the latter case, the issue is a mere incident of the chancery suit. Its object is to satisfy the conscience of the chancellor, who may set aside the verdict, if dissatisfied with it, and direct another issue, or he may dispose of the cause without the aid of another jury.
On theoother hand, in ordering an issue devisavit vel non, the chancellor does not exercise any of the ordinary powers of a chancery court, but acts in obedience to the express mandate of the statute; the object of the issue being to ascertain, by means of a jury trial, whether or not the will admitted to probate is, in whole or in part, the will of the decedent. When [234]*234that question is decided the function of the suit is exhausted, and the verdict is binding .upon t.he court, unless for good cause shown it is set aside, either at the trial or afterwards, on a bill of review. Malone’s Adm’r v. Hobbs, 1 Rob. R., 346; Coalter’s Ex’or v. Bryan and Wife, 1 Gratt. 18; Lambert v. Cooper’s Ex’or, 29 Id. 61; Connolly v. Connolly, 32 Id. 657.
It follows, therefore, that the verdict in the present case is entitled to the same weight as a verdict in an action at common law, and its correctness must be tested in the appellate court by the same rules; that is to say, the evidence, and not the facts, being certified, the verdict must stand, unless, after rejecting the evidence for the exceptor, all of which was parol, and giving full force and credit to that of the appellees, the decision of the lower court still appears to be wrong. Lamberts v. Cooper’s Ex’or, supra.
Applying this rule to the present case, is the decree complained of erroneous? It is conceded that the instructions given to the jury correctly propound the law. The case turns upon the facts, which, as disclosed by the evidence for the appellees, are few and simple.
It appears that George Hartman died on or about the 1st of March, 1884, a little more than one month after the will was executed. At the time of his death he was a very old man. having attained the age of eighty-five years, and for several years prior to his death he had been “ in feeble health and crippled with rheumatism.” He left two children, the appellant and the female appellee, his only heirs-at-law. His estate consisted of a tract of land in Roanoke county, containing about one hundred and ten acres, upon which he resided, and some personalty, the value of which does not appear. Of this he devised ten acres of the land, of comparatively inferior quality and value, to his daughter, Mrs. Strickler; the residue of his estate he devised to his son, who was named in the will as executor.
[235]*235For several years prior to the execution of the will, the son lived with the father, and during' that time, in the language of one of the witnesses, “ had his own way; always fussing with the old man, and abusing his sister.” In fact, it would seem that his will was not only supreme, but that he ruled his aged and helpless father with a rod of iron. It appears that the daughter, to whom the father was much attached, left his home upon her marriage, which occurred about two years before the execution of the will, and lived with her husband in the same neighborhood. She was forbidden by tire brother to visit her father, and on one occasion when leaving the house in company with an aunt, she was cursed by her unnatural brother, whom she. had in no way wronged, and who uttered threats as to what he would do if she returned again, couched in language too indecent to be repeated.
On one occasion when the daughter, having broken her arm, was confined to her house in Salem, the old man requested his son to go and inquire as to her condition, which he refused to do, saying, with" an oath, that there was nothing' the matter with her. There is other evidence in the case, showing not only the most brutal animosity on the part of the brother towards the sister, but a determination, for reasons very apparent, to prevent, if possible, all communication between her and the father.
It appears that on one occasion the latter started to visit his daughter, when he was seized by the son, and ordered to return into the house, who told him if he did not return, “ he would pull down his breeches and whip him;” “and the old man,” says an eye-witness, “ went back into the house crying.” On another occasion, when he declared his purpose to visit his daughter, he was prevented from doing so by the son, who again threatened him with personal chastisement if he went. This was some time after the daughter’s marriage, and it does not appear that he made any further attempt to visit her.
[236]
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Lewis, P.,
delivered the opinion of the court.
The bill was filed to impeach a paper writing admitted to probate in the county court of the said county, as the true last will and testament of George Hartman, deceased. The complainants in the bill, the appellees here, are John N. Strickler and Lucy, his wife, the latter being a daughter and one of the heirs-at-law of the decedent. The bill charges, in general terms, that the paper writing, so admitted to probate, is not the will of the decedent, and prays that an issue devisavit vel non be made up and tried at the bar of the court, as directed by the statute.
The defendant, Nathanial B. Hartman, the appellant here, answered the bill, averring that “the said paper writing is the true and lawful last will and testament of the decedent, who, at the time he signed, sealed, and declared it to be such, was of sound mind and disposing memory, and in all respects capable of making his will, and that he made the same of his own free will.”
An issue was accordingly made up and tried at the bar of the court, upon which, the jury rendered a verdict as follows: “We, the jury, find that the paper writing in the bill mentioned, admitted to probate as the last will and testament of George Hartman, deceased, is not the true last will and testament of the said George Hartman, deceased.”
[233]*233The defendant thereupon moved to set aside the verdict as being contrary to the law and the evidence, and for a new trial; but the court overruled the motion, and entered a decree in accordance with the verdict. To this action of the court the defendant excepted, and the evidence is certified in the bill of exceptions.
The probate proceeding in the county court was ex parte, under the provisions of sec. 34, ch. 118, of the Code of 1873. That section also enacts as follows: “After a sentence or order under this section, a person interested, who was not a party to the proceeding, may, within five years, proceed by bill in equity to impeach or establish the will, on which bill a trial by jury shall be ordered, to ascertain whether any, and if any, how much of what was so offered for probate be the will of the decedent. If no such bill be filed within that time, the sentence or order shall be forever binding.”
Under this statute it has been heretofore decided by this court, that though the proceeding to impeach or establish a will admitted to probate is “ by bill in equity,” yet the verdict of a jury rendered upon an issue devisavit vel non stands on a different footing from that of a verdict in an ordinary issue out of chancery. And the reason is obvious. In the latter case, the issue is a mere incident of the chancery suit. Its object is to satisfy the conscience of the chancellor, who may set aside the verdict, if dissatisfied with it, and direct another issue, or he may dispose of the cause without the aid of another jury.
On theoother hand, in ordering an issue devisavit vel non, the chancellor does not exercise any of the ordinary powers of a chancery court, but acts in obedience to the express mandate of the statute; the object of the issue being to ascertain, by means of a jury trial, whether or not the will admitted to probate is, in whole or in part, the will of the decedent. When [234]*234that question is decided the function of the suit is exhausted, and the verdict is binding .upon t.he court, unless for good cause shown it is set aside, either at the trial or afterwards, on a bill of review. Malone’s Adm’r v. Hobbs, 1 Rob. R., 346; Coalter’s Ex’or v. Bryan and Wife, 1 Gratt. 18; Lambert v. Cooper’s Ex’or, 29 Id. 61; Connolly v. Connolly, 32 Id. 657.
It follows, therefore, that the verdict in the present case is entitled to the same weight as a verdict in an action at common law, and its correctness must be tested in the appellate court by the same rules; that is to say, the evidence, and not the facts, being certified, the verdict must stand, unless, after rejecting the evidence for the exceptor, all of which was parol, and giving full force and credit to that of the appellees, the decision of the lower court still appears to be wrong. Lamberts v. Cooper’s Ex’or, supra.
Applying this rule to the present case, is the decree complained of erroneous? It is conceded that the instructions given to the jury correctly propound the law. The case turns upon the facts, which, as disclosed by the evidence for the appellees, are few and simple.
It appears that George Hartman died on or about the 1st of March, 1884, a little more than one month after the will was executed. At the time of his death he was a very old man. having attained the age of eighty-five years, and for several years prior to his death he had been “ in feeble health and crippled with rheumatism.” He left two children, the appellant and the female appellee, his only heirs-at-law. His estate consisted of a tract of land in Roanoke county, containing about one hundred and ten acres, upon which he resided, and some personalty, the value of which does not appear. Of this he devised ten acres of the land, of comparatively inferior quality and value, to his daughter, Mrs. Strickler; the residue of his estate he devised to his son, who was named in the will as executor.
[235]*235For several years prior to the execution of the will, the son lived with the father, and during' that time, in the language of one of the witnesses, “ had his own way; always fussing with the old man, and abusing his sister.” In fact, it would seem that his will was not only supreme, but that he ruled his aged and helpless father with a rod of iron. It appears that the daughter, to whom the father was much attached, left his home upon her marriage, which occurred about two years before the execution of the will, and lived with her husband in the same neighborhood. She was forbidden by tire brother to visit her father, and on one occasion when leaving the house in company with an aunt, she was cursed by her unnatural brother, whom she. had in no way wronged, and who uttered threats as to what he would do if she returned again, couched in language too indecent to be repeated.
On one occasion when the daughter, having broken her arm, was confined to her house in Salem, the old man requested his son to go and inquire as to her condition, which he refused to do, saying, with" an oath, that there was nothing' the matter with her. There is other evidence in the case, showing not only the most brutal animosity on the part of the brother towards the sister, but a determination, for reasons very apparent, to prevent, if possible, all communication between her and the father.
It appears that on one occasion the latter started to visit his daughter, when he was seized by the son, and ordered to return into the house, who told him if he did not return, “ he would pull down his breeches and whip him;” “and the old man,” says an eye-witness, “ went back into the house crying.” On another occasion, when he declared his purpose to visit his daughter, he was prevented from doing so by the son, who again threatened him with personal chastisement if he went. This was some time after the daughter’s marriage, and it does not appear that he made any further attempt to visit her.
[236]*236In addition to this, it appears that the old man repeatedly-declared his intention not to make a will, saying that he wished his estate to be equally divided between his children, and that the law would make a better will for him than he could make. This was repeated to the son by one of the witnesses, who testifies that some time afterwards he was asked by the old man why he had told “Nat” (the appellant) what he had said about not making a will, saying “it had caused him a great deal of trouble; that they (meaning the appellant and his wife) had him tied down, and that he was unable to .do anything, but that he would leave it to the law to decide.” This was a little more than a year before the will was made. •
On another occasion, less than two years before his death, the old man remarked to one of the witnesses that Nat and his wife wanted him to make a will, but that he did not intend to do so. To the same witness he also said that Nat’s wife was so high-tempered and disagreeable that he was afraid of her; that he would not make her mad for anything in the world, for he did not think she was any too good to kill him, or any one else, if she got mad. It also appears that on one occasion, when informed of his father’s declared intention to leave his property to be equally divided by law among his children, the appellant remarked that he intended to have it all.
Such, substantially, is the evidence for the plaintiffs, and we are of opinion that the decree approving the verdict is right.
It is seldom, perhaps, that a case arises in which undue influence upon a testator, vitiating a will, is more clearly apparent from the circumstances surrounding the execution of the instrument than in the present case. It is difficult to see how the jury could have arrived at any other conclusion than that the will was not the unconstrained act of the decedent, but was obtained from him in his unhappy condition under such circumstances as to amount to force and coercion, destroying free agency. :
[237]*237. It is shown that he repeatedly declared his intention not to make a will, intending that his daughter, whom he loved with parental affection, should share equally in the division of his estate. And why this purpose was abandoned, within a few weeks prior to his death, may be readily inferred from the evidence. The only rational explanation is, that the .father, enfeebled by age and other infirmities, was under the controlling influence of the son.
The question as to what is undue influence, such as to overcome the will or control the judgment of a testator, largely depends upon the circumstances of each case, the chief of which are the dispositions contained in the will, the situation of the testator, and his mental and physical condition at the time the will is made. “And the better opinion seems to be that whenever influence is successfully employed to induce a testator to make a grossly unequal disposition of his property, or disregard the ties of blood without sufficient cause, it should be viewed as illegitimate, and may be treated as undue.” Notes to Huguerrin v. Basely, 2 Lead. Cas. Eq., Pt. II, page 1265. On the other hand, where the provisions of the will accord with the affections and previous declarations of the testator, and are such as might have been justly expected, that is persuasive evidence both of testamentary capacity and freedom of action. Young v. Barner, 27 Gratt. 96.
“There are few things,” it has been well said, “in which mankind more generally agree, than in the wish that their property should devolve after death on their descendants,” and where “a will which runs counter to this sentiment is made in favor of one who is so placed as to have a controlling power over the testator’s mind, it is not unreasonable to require him to show that he did not bring about a result that would not have ensued in the normal course of events.”
[238]*238Where a will executed by an old man differs from his previously expressed intentions, and is made in favor of those who stand in relations of confidence or dependence towards him, it raises a violent presumption of fraud and undue influence, which should be overcome by satisfactory testimony. 1 Williams on Ex’or, 58, note.
Nor 'is it essential to the application of the principle that unsoundness of mind on the part of the testator should be shown. The question is not whether the testator knew what he was doing, but how the intention was produced; and if it appears that it arose from the controlling influence of force, imposition, or fraud, that is sufficient ground for setting aside a will. It is not necessary, however, to show that undue influence was exercised at the very time the will was executed. It is sufficient that the will was executed afterwards, under the control of such influence. Hence, proof that a son imperiously told his father, some time prior to the execution of the will, to “shut up and not make so much noise,” and that the father obeyed, has been held admissible as showing that the son had both the power and the disposition to exercise a controlling influence over the father’s mind. 2 Lead. Cas. Eq., Pt. II, p. 1280. See also Tyler v. Gardiner, 35 N. Y., 559; S. C., Redf. Am. Cas. upon the law of wills, 451, et seq.
In the light of these principles, we are of opinion that the decree pronounced by the learned judge who presided at the trial, and saw the witnesses, and heard them testify, must be affirmed. Dudleys v. Dudleys, 3 Leigh, 436; Parramore v. Taylor, 11 Gratt. 220; Montague v. Allan’s Ex’or, 78 Va. 592.
Decree affirmed.