Punnet, J.
1. The objection made to the reception in evidence of the instructions given by the testatrix to Mr. Wiekhem, the attorney who prepared her will, and what took place between them on the subject of the will, is founded on the statute (sec. 4076, E. S.), which provides [168]*168that “ an attorney or counsellor shall not be allowed to disclose a communication* made by his client to him, or his advice given thereon, in the course of his professional employment.” The testatrix requested Mr. Wickhem to sign the will which was the result of the communications between them, as a subscribing witness, and he signed it accordingly. This must be held to be a waiver of objection to his competency, so as to leave the witness free to perform the duties of the position, and to testify to any matter in relation to the'will and its execution of which he acquired knowledge by virtue of his professional relation, including the mental condition of the testatrix at the time. In re Will of Coleman, 111 N. Y. 220; Alberti v. N. Y., I. E. & W. R. Co. 118 N. Y. 85. Some other objections were made to rulings upon questions of evidence, but none of them possess sufficient significance to require special notice.
2. Upon the question of the testamentary competency of the testatrix the evidence, in our opinion, preponderates decidedly in favor of the proponent. There is no doubt she was racked and tortured with pain which it was extremely difficult to endure, and which had reduced her physical and mental vigor, but there is no evidence that her mind wandered in the least, or that her utterances were at any time in the least incoherent or irrational, or that she labored under any mental delusion whatever. On the contrary, all that she is shown to have said or done at the time and for a month or more before the execution of the will indicates that, though at times irritable and excitable, yet her mental faculties and her capacity to understand the situation and extent of her property and to remember all who had natural claims on her bounty, and her ability to judge of the situation and act intelligently in respect to it, still remained sufficiently clear and strong. The scheme of the will shows that it was a matter to which she must have [169]*169given considerable thought, and although Emmett Scriven and Hattie, his wife, take under the will half, at least, of her estate, it is to be remembered that they came to her aid and support in her last illness, and that very many others of her kindred lived in other states, and some at a great distance. She had a right to make the discrimination in this respect she did, and, though it was argued that this fact and others already mentioned subject the will" to some suspicion as to whether it was procured by undue influence, yet this fact alone in its bearing on the question of her mental competency is of little significance. If the testatrix was deficient in testamentary capacity, or the will was the result' of undue influence on the part of the Scriven family, it is not reasonable, under the circumstances, to suppose that about one half of the entire estate would have been given to thirteen other legatees. Quite a number of witnesses, particularly on the part of the proponent, expressed opinions unfavorable to her testamentary capacity, but the facts they state to justify their conclusions are few, and do not throw much light on the question. Mere opinion, without substantial grounds to justify it, is of comparatively little value. Several other witnesses, and among them her attending physician and Mr. Wickhem, who drew the will, give quite clear and convincing testimony showing that she was fully competent to make a testamentary disposition of her property at the time she executed this will. We cannot say, under all the circumstances, that the will is open to objection as being a grossly unreasonable one. The test of testamentary capacity acted on in Delafield v. Parish, 25 N. Y. 9, has been adopted in this state, and applied in numerous cases, that “ it is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relations to the persons who were or- should or might have been the objects of his bounty, and the scope and bearing of his will. He must [170]*170have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and to be able to form some rational judgment concerning them.” In re Lewis’ Will, 51 Wis. 104, and cases there cited; Will of Patrick Carroll, 50 Wis. 437; Will of Smith, 52 Wis. 552; In re Will of Blakely, 48 Wis. 294. One error occurred in drafting the will in stating the relationship of one of the legatees to the testatrix, but this was corrected at her suggestion, and it is said that Mrs. R. C. Peck, a sister of the deceased, and so described in the will, to whom $500 was given by it, was dead at the date of the will. The evidence is not entirely clear on the question, but, if so, there is nothing to show that she knew of the death of this sister when she made the will. These facts do not tend to show a want of testamentary capacity. As the circuit court heard the witnesses testify, and -had opportunities for judging of their intelligence, fairness, and candor which we do not possess, we do not feel that we •could interfere with the finding of that court unless we are able to say that there is quite a preponderance of evidence •against its conclusion. For reasons already stated, we think ■the evidence sustains the finding of the circuit court.
3. It was argued that, in consequence of the relations of Emmett Seriven and his wife to the testatrix, the burden ■of vindicating the will against the imputation that it was procured by fraud and undue influence was on them. They occupied her house, and were caring for her and nursing her in her illness, but we do not understand that by reason of these facts they stood in any fiduciary relation to the testatrix, within the meaning of the rule invoked by appellants, which would impose upon them the burden of showing an absence of fraud or undue influence in a will made •by the testatrix containing substantial provisions in their [171]*171favor. Ordinarily, the proponent of a will “ is not called upon to show affirmatively that there was no undue influence used to procure- the making of the will. Undue influence is a defense, and the evidence of it must regularly come from the contestant.” Tyler v. Gardiner, 35 N. Y. 559; Boyse v. Rossborough, 6 H. L. Cas. 2; Clapp v. Fullerton, 34 N. Y. 192.
In Boyse v. Bossborough, supra,. the Lord Chancellor says: “ One point, however, is beyond dispute, and that is that when once it has been proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it. Undue influence cannot be presumed.” And this language is cited with approval and was acted on in Armstrong v. Armstrong, 63 Wis. 169. In the Jackman Will Case, 26 Wis. Ill, it was said that undue influence “ cannot be presumed from conjecture or suspicion without reasonable and satisfactory proof of facts establishing the contrivance and undue influence. . . .
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Punnet, J.
1. The objection made to the reception in evidence of the instructions given by the testatrix to Mr. Wiekhem, the attorney who prepared her will, and what took place between them on the subject of the will, is founded on the statute (sec. 4076, E. S.), which provides [168]*168that “ an attorney or counsellor shall not be allowed to disclose a communication* made by his client to him, or his advice given thereon, in the course of his professional employment.” The testatrix requested Mr. Wickhem to sign the will which was the result of the communications between them, as a subscribing witness, and he signed it accordingly. This must be held to be a waiver of objection to his competency, so as to leave the witness free to perform the duties of the position, and to testify to any matter in relation to the'will and its execution of which he acquired knowledge by virtue of his professional relation, including the mental condition of the testatrix at the time. In re Will of Coleman, 111 N. Y. 220; Alberti v. N. Y., I. E. & W. R. Co. 118 N. Y. 85. Some other objections were made to rulings upon questions of evidence, but none of them possess sufficient significance to require special notice.
2. Upon the question of the testamentary competency of the testatrix the evidence, in our opinion, preponderates decidedly in favor of the proponent. There is no doubt she was racked and tortured with pain which it was extremely difficult to endure, and which had reduced her physical and mental vigor, but there is no evidence that her mind wandered in the least, or that her utterances were at any time in the least incoherent or irrational, or that she labored under any mental delusion whatever. On the contrary, all that she is shown to have said or done at the time and for a month or more before the execution of the will indicates that, though at times irritable and excitable, yet her mental faculties and her capacity to understand the situation and extent of her property and to remember all who had natural claims on her bounty, and her ability to judge of the situation and act intelligently in respect to it, still remained sufficiently clear and strong. The scheme of the will shows that it was a matter to which she must have [169]*169given considerable thought, and although Emmett Scriven and Hattie, his wife, take under the will half, at least, of her estate, it is to be remembered that they came to her aid and support in her last illness, and that very many others of her kindred lived in other states, and some at a great distance. She had a right to make the discrimination in this respect she did, and, though it was argued that this fact and others already mentioned subject the will" to some suspicion as to whether it was procured by undue influence, yet this fact alone in its bearing on the question of her mental competency is of little significance. If the testatrix was deficient in testamentary capacity, or the will was the result' of undue influence on the part of the Scriven family, it is not reasonable, under the circumstances, to suppose that about one half of the entire estate would have been given to thirteen other legatees. Quite a number of witnesses, particularly on the part of the proponent, expressed opinions unfavorable to her testamentary capacity, but the facts they state to justify their conclusions are few, and do not throw much light on the question. Mere opinion, without substantial grounds to justify it, is of comparatively little value. Several other witnesses, and among them her attending physician and Mr. Wickhem, who drew the will, give quite clear and convincing testimony showing that she was fully competent to make a testamentary disposition of her property at the time she executed this will. We cannot say, under all the circumstances, that the will is open to objection as being a grossly unreasonable one. The test of testamentary capacity acted on in Delafield v. Parish, 25 N. Y. 9, has been adopted in this state, and applied in numerous cases, that “ it is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relations to the persons who were or- should or might have been the objects of his bounty, and the scope and bearing of his will. He must [170]*170have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and to be able to form some rational judgment concerning them.” In re Lewis’ Will, 51 Wis. 104, and cases there cited; Will of Patrick Carroll, 50 Wis. 437; Will of Smith, 52 Wis. 552; In re Will of Blakely, 48 Wis. 294. One error occurred in drafting the will in stating the relationship of one of the legatees to the testatrix, but this was corrected at her suggestion, and it is said that Mrs. R. C. Peck, a sister of the deceased, and so described in the will, to whom $500 was given by it, was dead at the date of the will. The evidence is not entirely clear on the question, but, if so, there is nothing to show that she knew of the death of this sister when she made the will. These facts do not tend to show a want of testamentary capacity. As the circuit court heard the witnesses testify, and -had opportunities for judging of their intelligence, fairness, and candor which we do not possess, we do not feel that we •could interfere with the finding of that court unless we are able to say that there is quite a preponderance of evidence •against its conclusion. For reasons already stated, we think ■the evidence sustains the finding of the circuit court.
3. It was argued that, in consequence of the relations of Emmett Seriven and his wife to the testatrix, the burden ■of vindicating the will against the imputation that it was procured by fraud and undue influence was on them. They occupied her house, and were caring for her and nursing her in her illness, but we do not understand that by reason of these facts they stood in any fiduciary relation to the testatrix, within the meaning of the rule invoked by appellants, which would impose upon them the burden of showing an absence of fraud or undue influence in a will made •by the testatrix containing substantial provisions in their [171]*171favor. Ordinarily, the proponent of a will “ is not called upon to show affirmatively that there was no undue influence used to procure- the making of the will. Undue influence is a defense, and the evidence of it must regularly come from the contestant.” Tyler v. Gardiner, 35 N. Y. 559; Boyse v. Rossborough, 6 H. L. Cas. 2; Clapp v. Fullerton, 34 N. Y. 192.
In Boyse v. Bossborough, supra,. the Lord Chancellor says: “ One point, however, is beyond dispute, and that is that when once it has been proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it. Undue influence cannot be presumed.” And this language is cited with approval and was acted on in Armstrong v. Armstrong, 63 Wis. 169. In the Jackman Will Case, 26 Wis. Ill, it was said that undue influence “ cannot be presumed from conjecture or suspicion without reasonable and satisfactory proof of facts establishing the contrivance and undue influence. . . . It must be such an influence as to destroy the freedom of the testator’s will, and thus render his act obviously more the offspring of the will of others than of his own. It must be an influence especially directed towards the object of procuring a will in favor of particular parties. . . . It must be such as was intended to mislead him to the extent of making a will essentially contrary to his duty; and it must have proved successful to some extent, certainly,” and “ must be such as in some degree to destroy the free agency of the testator, and constrain him to do not only what is against his will, but what he is unable to refuse or too weak to resist.” There must be proof that the act was obtained by importunity which could not be resisted; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear.
[172]*172In this case it is contended that Scriven and his wife had the opportunity to exercise undue influence over the testatrix ; that they had the temptation to exercise it; and because of the liberal provisions in the will in their favor it is to be presumed that it was the result of such influence acting on the mind of the testatrix, and this presumption must prevail unless rebutted. It may be conceded that there are circumstances in this case which beget suspicion, but the judgment of the court cannot go upon mere suspicion. The special circumstances in Davis v. Dean, 66 Wis. 108, 110, and Will of Slinger, 72 Wis. 27-33, clearly distinguished those cases from the present, and, like the case of Tyler v. Gardiner, 35 N. Y. 559, show under what circumstances the burden of proof will be placed on the claimant under the will to show that the will was not the result of undue influence. It was there held that, “ when it appears from the proof that the will was made by a testatrix on her death-bed; that her faculties were enfeebled by long and wasting disease; that she had been for a considerable period under the active and controlling influence of the principal beneficiary; that during this period she had been imbued with causeless antipathy to her only son, and had been induced to expel him from her house and to pursue him with unmerited accusations; that the will originated with the chief beneficiary, who framed the written instructions, engaged the counsel, and superintended its execution ; that it involved a complete revolution of intention and an entire departure from previous testamentary dispositions; that it was made under mistaken impressions of fact, recently imbibed and vitally affecting its provisions; these facts, coupled with gross inequality and apparent injustice, raise a presumption of undue influence, and cast the burden of proof of repelling it upon the party to whom it is imputed.”
These cases have but a few features in common with the [173]*173present case. There is nothing whatever to show that the Soriven family had any control or influence over the testatrix, or that they had tried to imbue her with prejudice against any of her «relatives, or that the will originated with them or either of them, or that they even knew what its provisions were, or were proposed to be, until after it was executed. The only thing that is shown is that Soriven •employed for the testatrix Mr. "Wickhem to prepare the will, but it does not appear that any member cff the family was present when any of the instructions for it were given, much less that they, or either of them, made any suggestion as to its provisions, or any request of the testatrix. In short, there is nothing whatever showing or tending to show that all the provisions of the will were not the free, uninfluenced result of the deliberate and intelligent judgment of the testatrix. The facts shown by the contestant did not, in our judgment, change the burden of proof on the subject of undue influence, or establish it by a preponderance of evidence against that produced by the proponent. On this point, as well as on that of testamentary capacity, we think the evidence does not warrant a reversal of the findings of the circuit court.
The contest was originated and prosecuted in good faith by the contestant, and, in accordance with the settled rule of the court, he is to be allowed his taxable costs of the litigation to be paid out of the estate. The judgment of the circuit court must be affirmed.
By the Court — The judgment of the circuit court is affirmed, the appellant’s taxable costs to be paid out of the estate of the testatrix.