Stacy, C. J.
The case here may be made to turn on exceptions to the charge.
First. The appellants except to the charge on the ground that they were given no benefit of the presumption arising from the fiduciary relation existing between the grantor and testatrix on the one hand and the grantees and principal beneficiary on the other at the time of the execution of the deeds and will.
It is in evidence that Johnnie L. McNeill, grantee in both deeds and principal beneficiary under the will, was, at the time of their execution, manager in full charge of Mrs. Hall’s farming operations. This was her only business. In a letter to Howard Nye, she speaks of “Johnny Me” as “my supervisor, he & his wife are my very best friends.”
The law is well settled that in certain known and definite “fiduciary-relations, if there be dealing between the parties, on the complaint of the party in tie power of tie other, tie relation of itself and without other •evidence, raises a presumption of fraud, as a matter of law, which annuls the act unless such presumption be rebutted by proof that no fraud was committed, and no undue influence or moral duress exerted.”
Lee v. Pearce,
68 N. O., 16. Among these, are, (1) trustee and
cestui que trust
dealing in reference to the trust fund, (2) attorney and client, in respect of the matter wherein the relationship exists, (3) mortgagor and mortgagee in transactions affecting the mortgaged property, (4) guardian and ward, just after the ward arrives of age, and (5) principal and agent, where the agent has entire management so as to be, in effect, as much the guardian of his principal as the regularly appointed guardian of an infant.
Abbitt v. Gregory,
201 N. C., 577 (at p. 598) ;
Harrelson v. Cox,
207 N. C., 651, 178 S. E., 361;
Hinton v. West,
207 N. C., 708, 178 S. E., 356;
McLeod v. Bullard,
84 N. C., 515, approved on rehearing, 86 N. C., 210;
Harris v. Garstarphen,
69 N. C., 416;
Williams v. Powell,
36 N. C., 460.
“When one is the general agent of another, who relies upon him as a friend and adviser, and has entire management of his affairs, a presumption of fraud, as a matter of law, arises from a transaction between them wherein the agent is benefited, and the burden of proof is upon the agent to show by the greater weight of the evidence, when the transaction is disputed, that it was open, fair and honest.”
Smith v. Moore
(7th syllabus), 149 N. S., 185, 62 S. E., 892.
There is also authority for the position that “when a will is executed through the intervention of a person occupying a confidential relation towards the testatrix, whereby such person is the executor and a large beneficiary under the will, such circumstances create a strong suspicion that an undue or fraudulent influence has been exerted, and then the law casts upon him the burden of removing the suspicion by offering proof that the will was the free and voluntary act of the testator.”
In re Will of Amelia Everett, 153
N. C., 83, 68 S. E., 924.
Wigmore puts it this way: “Where the grantee or other beneficiary of a deed or will is a person who has maintained intimate relations with the grantor or testator, or has drafted, or advised the terms of the instrument, a presumption of undue influence or of fraud on the part of the beneficiary has often been applied.” Evidence (3rd Ed.), sec. 2503, and cases cited in note.
The doctrine rests on the idea, not that there
is
fraud, but that there
may be
fraud, and gives an artificial effect to the relation b'eyond its natural tendency to produce belief.
Peedin v. Oliver,
222 N. C., 665;
Harris v. Hilliard,
221 N. C., 329, 20 S. E. (2d), 278.
Tbis .principle, it would seem, was applicable to tbe facts of tbe instant record, as Johnnie McNeill at tbe time of tbe execution of tbe instruments in suit, was tbe supervisor of Mrs. Hall’s farm and in full charge of her business affairs. He purportedly takes as grantee in both deeds and is named sole executor and principal beneficiary in tbe will.
Tbe failure to present these essential features of tbe case to tbe jury must be held for error. Their pertinency is heightened by tbe fact that neither Johnnie L. McNeill nor bis wife testified in the case.
Hudson v. Jordan,
108 N. C., 10, 12 S. E., 1029. True, tbe failure to testify, standing alone and without reference to tbe circumstances, ordinarily counts for naught against a party, and tbe jury should presume nothing therefrom; but when tbe case is such as to call for an explanation, as here, a different situation is presented.
Powell v. Strickland,
163 N. C., 393, 79 S. E., 872;
In re Hinton,
180 N. C., 206, 104 S. E., 341. Tbe authorities are at one in bolding that a judge in bis charge to tbe jury should present every substantial and essential feature of tbe case embraced within tbe issues and arising on tbe evidence, and tbis without any special prayer for instructions. C. S., 564;
S. v. O’Neal,
187 N. C., 22, 120 S. E., 817;
S. v. Merrich,
171 N. C., 788, 88 S. E., 501. It is only in reference to subordinate features of tbe case that special requests are necessary.
S. v. Ellis,
203 N. C., 836, 167 S. E., 67.
Indeed, tbe statute provides that in jury trials, tbe judge “shall state in a plain and correct manner tbe evidence given in tbe case and declare and explain tbe law arising thereon.” C. S., 564. We have said in a number of cases that tbis confers a substantial legal right upon litigants, and that it “calls for instructions as to tbe law upon all substantial features of tbe case.”
Williams v. Coach Co.,
197 N. C., 12, 147 S. E., 435;
S. v. Robinson,
213 N. C., 273, 195 S. E., 824;
S. v. Bryant,
213. N. C., 752, 197 S. E., 530;
Wilson v. Wilson,
190 N. C., 819, 130 S. E., 834;
Watson v. Tanning Co.,
190 N. C., 840, 130 S. E., 833;
Bowen v. Schnibben,
184 N. C., 248, 114 S. E., 170;
Blake v. Smith,
163 N. C., 274, 79 S. E., 596;
Holly v. Holly,
94 N. C., 96;
S. v. Matthews,
78 N. C., 523;
S. v. Dunlop,
65 N. C., 288.
Tbe purport of tbe decisions may be gleaned from tbe following-excerpts : “Tbe failure of tbe court to instruct tbe jury on substantive features of tbe case arising on tbe evidence is prejudicial. Tbis is true even though there is no request for special instruction to that effect.”
Spencer v. Brown,
214 N. C., 114, 198 S. E., 630. “On tbe substantive features of tbe case arising on tbe evidence, tbe judge is required to give correct charge concerning it.”
School District v. Alamance County,
211 N. C., 213, 189 S. E., 873. “A judge in bis charge to tbe jury should present every substantial' and essential feature of tbe case embraced within the issue and arising on tbe evidence, and tbis without any special
prayer for instructions to that effect.”
S. v. Merrick,
171 N. C., 788, 88 S. E., 501.
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Stacy, C. J.
The case here may be made to turn on exceptions to the charge.
First. The appellants except to the charge on the ground that they were given no benefit of the presumption arising from the fiduciary relation existing between the grantor and testatrix on the one hand and the grantees and principal beneficiary on the other at the time of the execution of the deeds and will.
It is in evidence that Johnnie L. McNeill, grantee in both deeds and principal beneficiary under the will, was, at the time of their execution, manager in full charge of Mrs. Hall’s farming operations. This was her only business. In a letter to Howard Nye, she speaks of “Johnny Me” as “my supervisor, he & his wife are my very best friends.”
The law is well settled that in certain known and definite “fiduciary-relations, if there be dealing between the parties, on the complaint of the party in tie power of tie other, tie relation of itself and without other •evidence, raises a presumption of fraud, as a matter of law, which annuls the act unless such presumption be rebutted by proof that no fraud was committed, and no undue influence or moral duress exerted.”
Lee v. Pearce,
68 N. O., 16. Among these, are, (1) trustee and
cestui que trust
dealing in reference to the trust fund, (2) attorney and client, in respect of the matter wherein the relationship exists, (3) mortgagor and mortgagee in transactions affecting the mortgaged property, (4) guardian and ward, just after the ward arrives of age, and (5) principal and agent, where the agent has entire management so as to be, in effect, as much the guardian of his principal as the regularly appointed guardian of an infant.
Abbitt v. Gregory,
201 N. C., 577 (at p. 598) ;
Harrelson v. Cox,
207 N. C., 651, 178 S. E., 361;
Hinton v. West,
207 N. C., 708, 178 S. E., 356;
McLeod v. Bullard,
84 N. C., 515, approved on rehearing, 86 N. C., 210;
Harris v. Garstarphen,
69 N. C., 416;
Williams v. Powell,
36 N. C., 460.
“When one is the general agent of another, who relies upon him as a friend and adviser, and has entire management of his affairs, a presumption of fraud, as a matter of law, arises from a transaction between them wherein the agent is benefited, and the burden of proof is upon the agent to show by the greater weight of the evidence, when the transaction is disputed, that it was open, fair and honest.”
Smith v. Moore
(7th syllabus), 149 N. S., 185, 62 S. E., 892.
There is also authority for the position that “when a will is executed through the intervention of a person occupying a confidential relation towards the testatrix, whereby such person is the executor and a large beneficiary under the will, such circumstances create a strong suspicion that an undue or fraudulent influence has been exerted, and then the law casts upon him the burden of removing the suspicion by offering proof that the will was the free and voluntary act of the testator.”
In re Will of Amelia Everett, 153
N. C., 83, 68 S. E., 924.
Wigmore puts it this way: “Where the grantee or other beneficiary of a deed or will is a person who has maintained intimate relations with the grantor or testator, or has drafted, or advised the terms of the instrument, a presumption of undue influence or of fraud on the part of the beneficiary has often been applied.” Evidence (3rd Ed.), sec. 2503, and cases cited in note.
The doctrine rests on the idea, not that there
is
fraud, but that there
may be
fraud, and gives an artificial effect to the relation b'eyond its natural tendency to produce belief.
Peedin v. Oliver,
222 N. C., 665;
Harris v. Hilliard,
221 N. C., 329, 20 S. E. (2d), 278.
Tbis .principle, it would seem, was applicable to tbe facts of tbe instant record, as Johnnie McNeill at tbe time of tbe execution of tbe instruments in suit, was tbe supervisor of Mrs. Hall’s farm and in full charge of her business affairs. He purportedly takes as grantee in both deeds and is named sole executor and principal beneficiary in tbe will.
Tbe failure to present these essential features of tbe case to tbe jury must be held for error. Their pertinency is heightened by tbe fact that neither Johnnie L. McNeill nor bis wife testified in the case.
Hudson v. Jordan,
108 N. C., 10, 12 S. E., 1029. True, tbe failure to testify, standing alone and without reference to tbe circumstances, ordinarily counts for naught against a party, and tbe jury should presume nothing therefrom; but when tbe case is such as to call for an explanation, as here, a different situation is presented.
Powell v. Strickland,
163 N. C., 393, 79 S. E., 872;
In re Hinton,
180 N. C., 206, 104 S. E., 341. Tbe authorities are at one in bolding that a judge in bis charge to tbe jury should present every substantial and essential feature of tbe case embraced within tbe issues and arising on tbe evidence, and tbis without any special prayer for instructions. C. S., 564;
S. v. O’Neal,
187 N. C., 22, 120 S. E., 817;
S. v. Merrich,
171 N. C., 788, 88 S. E., 501. It is only in reference to subordinate features of tbe case that special requests are necessary.
S. v. Ellis,
203 N. C., 836, 167 S. E., 67.
Indeed, tbe statute provides that in jury trials, tbe judge “shall state in a plain and correct manner tbe evidence given in tbe case and declare and explain tbe law arising thereon.” C. S., 564. We have said in a number of cases that tbis confers a substantial legal right upon litigants, and that it “calls for instructions as to tbe law upon all substantial features of tbe case.”
Williams v. Coach Co.,
197 N. C., 12, 147 S. E., 435;
S. v. Robinson,
213 N. C., 273, 195 S. E., 824;
S. v. Bryant,
213. N. C., 752, 197 S. E., 530;
Wilson v. Wilson,
190 N. C., 819, 130 S. E., 834;
Watson v. Tanning Co.,
190 N. C., 840, 130 S. E., 833;
Bowen v. Schnibben,
184 N. C., 248, 114 S. E., 170;
Blake v. Smith,
163 N. C., 274, 79 S. E., 596;
Holly v. Holly,
94 N. C., 96;
S. v. Matthews,
78 N. C., 523;
S. v. Dunlop,
65 N. C., 288.
Tbe purport of tbe decisions may be gleaned from tbe following-excerpts : “Tbe failure of tbe court to instruct tbe jury on substantive features of tbe case arising on tbe evidence is prejudicial. Tbis is true even though there is no request for special instruction to that effect.”
Spencer v. Brown,
214 N. C., 114, 198 S. E., 630. “On tbe substantive features of tbe case arising on tbe evidence, tbe judge is required to give correct charge concerning it.”
School District v. Alamance County,
211 N. C., 213, 189 S. E., 873. “A judge in bis charge to tbe jury should present every substantial' and essential feature of tbe case embraced within the issue and arising on tbe evidence, and tbis without any special
prayer for instructions to that effect.”
S. v. Merrick,
171 N. C., 788, 88 S. E., 501. “When the evidence is susceptible of several interpretations a failure to give instructions which declare and explain the law in its application to the several phases of the evidence is held for reversible error.”
Williams v. Coach Co., supra.
A situation quite similar to the one here presented arose in the case of
Hauser v. Furniture Co.,
174 N. C., 463, 93 S. E., 961. There, a minor between the ages of 12 and 13, suing for personal injuries, lost before the jury on the issue of contributory negligence. The failure of the judge to instruct the jury that the evidence should be considered and the issue determined in the light of the presumption against contributory negligence arising on the evidence, was held for error, and this without any special prayer for instructions, the Court saying: “It is not a mere omission in reference to a ‘subordinate feature of the cause, or some particular phase of the testimony/ but is to be considered as a ‘substantial defect,’ which may he raised by an exception properly entered and requiring that the issue be submitted to another jury.”
The same rule would seem to be applicable here. The plaintiffs and caveators lost before the jury on the issue of undue influence. No reference is made in the charge to the presumption of fraud arising out of the relation of the parties. The two cases appear to be alike. The situations are similar.
Second. In giving the contentions of the defendants and propounders, the court called the jury’s attention to the recitals in the deeds as showing
ex proprio vigore
knowledge of the grantor’s properties and evidence of mental capacity. Attention was also directed to the preamble and to the several clauses of the will as evidence of Mrs. Hall’s mental capacity,
e.g.,
“They say and contend that the paper writing itself shows in the preamble that she was of sound mind . . . that the person best qualified to know whether or not Mrs. Hall was of sound mind at that time was Mrs. Hall herself.” The preamble recites, “I, Florence McNeill Hall, . . . being of sound mind,” etc.
In apt time, counsel for plaintiffs and caveators asked the court to instruct the jury that if they were satisfied from the evidence that Mrs. Hall did not give directions for the recitals in the deeds and will, “then such recitals would not be evidence in this case of mental capacity.”
It would seem that in the circumstances here disclosed, the plaintiffs and caveators were entitled to this instruction.
It is true, in a number of cases the provisions of a will and the recitals in other writings have been allowed to be considered by the jury in connection with other evidence, as bearing upon the issues of mental capacity and undue influence.
In re Will of Beale,
202 N. C., 618, 163 S. E., 684;
In re Hardee's Will,
187 N. C., 381, 121 S. E., 667;
In re Burns’
Will,
121 N. C., 336, 28 S. E., 519. But iu no cáse where this has been done has it been predicated upon a finding that the testator or maker was not the author of the provisions or recitals and gave no instructions in respect of their composition.
Jones v. Williams,
176 N. C., 245, 96 S. E., 1036. Here, the very question at issue is whether these recitals correctly express the mind of a competent person free from any fraud or undue influence, in the face of a presumption that they do not.
A careful perusal of the entire record induces the conclusion that a new trial should be awarded. It is so ordered.
New trial.