Butler, J.
This case comes up on a motion in error, and also on a motion cfor a new trial. We do not discover in either motion any sufficient reason for disturbing the verdict.
First. All the errors assigned' in the motion in error relate to supposed defects in the pleadings and issues joined upon the reasons of appeal, or claimed errors in respect to the form and effect of the verdict, when tested by the technical rules of the common law which govern pleadings, issues, and verdicts in civil actions. It will not be necessary to examine or consider those assigned errors in detail, for, in our opinion, [446]*446as the proceeding is statutory and special, the technical rules of the common law relied upon are not applicable to it.
The courts of probate are special and limited courts, without any common law jurisdiction, and created by statute for the probate of wills and the settlement of estates. The statute which creates them and regulates their proceedings provides that when a will is left by a decedent the executor “ shall exhibit it for probate to the court of probate for the district where the testator last dwelt.” Another section confers upon that court cognisance of the probate of wills, and adds, that it “ shall act in all testamentary and probate matters.” The same statute authorizes persons of a certain age and of sound mind to make wills, and prescribes'the formalities to be observed in making them. When therefore the executor, in conformity with his prescribed duty, “ exhibits ” the will to the court of probate which has jurisdiction, it becomes the imperative duty of that court, of its own motion, to take the custody of it, and proceed to enquire and determine whether it was executed according to the formalities prescribed, freely, by a person of lawful age and of sound mind and sufficient capacity, and is a valid will; and to approve or reject it accordingly. The jurisdiction is thus given, and the issue, whether a valid will or not, prescribed by statute, and no process, or formal propounding by the executor, was contemplated by the legislature, or is necessary to give jurisdiction or make an issue, and none are known in our practice. The issue being statutory, all the proceedings are oral and simple. If the oath has not been administered to the subscribing witnesses out of court, the executor, acting thenceforth under the order and direction of the court, procures their attendance and the court examines them, and if contestants appear they cross-examine, and produce other witnesses if they desire. Doubtless it is competent for the court of probate to order the contestants to file their objections, on its own motion, or on motion of the executor, but it is rarely if ever done. Ordinarily the enquiry is confined to the subscribing witnesses, and is preliminary to a final contest, by appeal, in the superior court.
[447]*447An appeal from the judgment of a court of probate accepting or rejecting a will, takes up to the superior court for re-trial that special statutory issue, and nothing more; and the appellate court, having no jurisdiction of probate or testamentary matters, can only re-try that special issue, and affirm or reverse the judgment of the court of probate as that issue shall be determined by a jury, and certify such affirmance or reversal to that court as a guide for its further action. Every fact which shows that the will is not a valid one, whether it relates to the age or capacity of the testator, or a defective execution of the paper, or to fraud and undue influence, is material under that issue, and an element of it, and is involved in its determination. Reasons of appeal therefore are not necessary in our practice to make issues, and if they are filed and issues joined upon them, they are subordinate issues, on the elemental, facts of the main or real issue, which the jury must try and determine. In Comstock v. Hadlyme, 8 Conn., 26, where, as here, reasons were filed and traversed, the court by Judge Williams say : “ The real question to be tried was whether there was a valid will, and this question was to be decided in the same manner as if it had not been decided in the court of probateand that doctrine was the basis of the decision in that case, and in the later case of Knox’s Appeal from Probate, 26 Conn., 20, and is now fundamental in our law.
Reasons of appeal are necessary in those states where the main issue is not sent to the jury, but one or more special issues, real or feigned, are made up on the disputed elemental fact or facts, and are sent by the court to a jury of the same or a different court, to be tried and determined by a special verdict; and the court on the return of the special verdict determines the main issue in accordance with it. But in our simple practice, and under our statute, the main or real issue goes directly to the jury; and with it go the subordinate elemental issues or facts on which it turns; and that main or real issue must be found by the jury by their verdict in some form, as the basis for a judgment by the court, or there will he a mistrial.
[448]*448It is not easy to ascertain when, or in which of the three courts which have successively had appellate jurisdiction of testamentary matters, the practice of filing reasons for such an appeal was introduced in this state. Undoubtedly they have served, and now serve, a useful purpose as a notice to the opposite party of the grounds of objection to the will, which will be relied upon at the trial; and by limiting the party filing them to evidence of the objections alleged in them; and were probably introduced for that reason. But however that may be, as our law now stands, and the whole case goes to the jury, they can have no other practical effect. And, so that they are not admitted on the record to be true, it is immaterial, especially after verdict, how they are answered, or whether answered at all. In either case the technical rules of the common law relative to the formation and determination of issues cannot be applied to them. Verdicts too have been drawn in practice, by counsel, very much according to their tastes, and the form is immaterial, if the main issue, on which alone the judgment must be based, is clearly determined by them.
This view disposes of the questions on the motion in error. As there was no intentional admission of fact, the whole case went to the jury, and they found “ the issue,” and by intendment the real issue, and of course all elemental facts or issues, for the appellees; and that was a correct method of expressing their conclusion, and disposing of the case.
Second. The questions raised on the motion for a new trial will be considered in their order.
1. The appellants claim, in the first place, that the court should have- Charged as they requested, or otherwise than it did, on the question of capacity.
But we think differently. Since the decision of this court in Kinne v. Kinne, 9 Conn., 102, the instructions there held proper to be given to the jury have been well understood, and have beeiq given in practice with substantial uniformity. The jury have been informed in substance, that it was not necessary that the testator should have been capable of transacting business generally; but that he had sufficient capacity [449]
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Butler, J.
This case comes up on a motion in error, and also on a motion cfor a new trial. We do not discover in either motion any sufficient reason for disturbing the verdict.
First. All the errors assigned' in the motion in error relate to supposed defects in the pleadings and issues joined upon the reasons of appeal, or claimed errors in respect to the form and effect of the verdict, when tested by the technical rules of the common law which govern pleadings, issues, and verdicts in civil actions. It will not be necessary to examine or consider those assigned errors in detail, for, in our opinion, [446]*446as the proceeding is statutory and special, the technical rules of the common law relied upon are not applicable to it.
The courts of probate are special and limited courts, without any common law jurisdiction, and created by statute for the probate of wills and the settlement of estates. The statute which creates them and regulates their proceedings provides that when a will is left by a decedent the executor “ shall exhibit it for probate to the court of probate for the district where the testator last dwelt.” Another section confers upon that court cognisance of the probate of wills, and adds, that it “ shall act in all testamentary and probate matters.” The same statute authorizes persons of a certain age and of sound mind to make wills, and prescribes'the formalities to be observed in making them. When therefore the executor, in conformity with his prescribed duty, “ exhibits ” the will to the court of probate which has jurisdiction, it becomes the imperative duty of that court, of its own motion, to take the custody of it, and proceed to enquire and determine whether it was executed according to the formalities prescribed, freely, by a person of lawful age and of sound mind and sufficient capacity, and is a valid will; and to approve or reject it accordingly. The jurisdiction is thus given, and the issue, whether a valid will or not, prescribed by statute, and no process, or formal propounding by the executor, was contemplated by the legislature, or is necessary to give jurisdiction or make an issue, and none are known in our practice. The issue being statutory, all the proceedings are oral and simple. If the oath has not been administered to the subscribing witnesses out of court, the executor, acting thenceforth under the order and direction of the court, procures their attendance and the court examines them, and if contestants appear they cross-examine, and produce other witnesses if they desire. Doubtless it is competent for the court of probate to order the contestants to file their objections, on its own motion, or on motion of the executor, but it is rarely if ever done. Ordinarily the enquiry is confined to the subscribing witnesses, and is preliminary to a final contest, by appeal, in the superior court.
[447]*447An appeal from the judgment of a court of probate accepting or rejecting a will, takes up to the superior court for re-trial that special statutory issue, and nothing more; and the appellate court, having no jurisdiction of probate or testamentary matters, can only re-try that special issue, and affirm or reverse the judgment of the court of probate as that issue shall be determined by a jury, and certify such affirmance or reversal to that court as a guide for its further action. Every fact which shows that the will is not a valid one, whether it relates to the age or capacity of the testator, or a defective execution of the paper, or to fraud and undue influence, is material under that issue, and an element of it, and is involved in its determination. Reasons of appeal therefore are not necessary in our practice to make issues, and if they are filed and issues joined upon them, they are subordinate issues, on the elemental, facts of the main or real issue, which the jury must try and determine. In Comstock v. Hadlyme, 8 Conn., 26, where, as here, reasons were filed and traversed, the court by Judge Williams say : “ The real question to be tried was whether there was a valid will, and this question was to be decided in the same manner as if it had not been decided in the court of probateand that doctrine was the basis of the decision in that case, and in the later case of Knox’s Appeal from Probate, 26 Conn., 20, and is now fundamental in our law.
Reasons of appeal are necessary in those states where the main issue is not sent to the jury, but one or more special issues, real or feigned, are made up on the disputed elemental fact or facts, and are sent by the court to a jury of the same or a different court, to be tried and determined by a special verdict; and the court on the return of the special verdict determines the main issue in accordance with it. But in our simple practice, and under our statute, the main or real issue goes directly to the jury; and with it go the subordinate elemental issues or facts on which it turns; and that main or real issue must be found by the jury by their verdict in some form, as the basis for a judgment by the court, or there will he a mistrial.
[448]*448It is not easy to ascertain when, or in which of the three courts which have successively had appellate jurisdiction of testamentary matters, the practice of filing reasons for such an appeal was introduced in this state. Undoubtedly they have served, and now serve, a useful purpose as a notice to the opposite party of the grounds of objection to the will, which will be relied upon at the trial; and by limiting the party filing them to evidence of the objections alleged in them; and were probably introduced for that reason. But however that may be, as our law now stands, and the whole case goes to the jury, they can have no other practical effect. And, so that they are not admitted on the record to be true, it is immaterial, especially after verdict, how they are answered, or whether answered at all. In either case the technical rules of the common law relative to the formation and determination of issues cannot be applied to them. Verdicts too have been drawn in practice, by counsel, very much according to their tastes, and the form is immaterial, if the main issue, on which alone the judgment must be based, is clearly determined by them.
This view disposes of the questions on the motion in error. As there was no intentional admission of fact, the whole case went to the jury, and they found “ the issue,” and by intendment the real issue, and of course all elemental facts or issues, for the appellees; and that was a correct method of expressing their conclusion, and disposing of the case.
Second. The questions raised on the motion for a new trial will be considered in their order.
1. The appellants claim, in the first place, that the court should have- Charged as they requested, or otherwise than it did, on the question of capacity.
But we think differently. Since the decision of this court in Kinne v. Kinne, 9 Conn., 102, the instructions there held proper to be given to the jury have been well understood, and have beeiq given in practice with substantial uniformity. The jury have been informed in substance, that it was not necessary that the testator should have been capable of transacting business generally; but that he had sufficient capacity [449]*449to make a will if he understood the business in which he was engaged, and the elements of it, namely, if he recollected and understood, or in other words comprehended, the nature and condition of his property, the persons who were or should be the natural objects of his bounty, and his relation to them, the manner in which he wished to distribute it among or withhold it from them, and the scope and bearing of the provisions of the will he was making ; and we are not aware that any better or safer and more just guide for the jury has been or can be adopted. The charge of the court below conformed substantially to it, and we think the appellants have, in that respect, no just cause for complaint. And on the other hand, we are of opinion that the instruction prayed for ought not to have been given, if we had not, in our practice, a settled rule of our own.
Juries contain usually some new and inexperienced men. The first branch of the request was not preceded, as it should have been, by a statement that the full possession of his faculties by the testator was not necessary; and it required that he should comprehend “perfectly” the condition of his property &c.; and if given as an instruction, without such prefix and alone, as requested, to such men, they would have been in. danger of being misled. The second branch of the request originated with a very distinguished jurist of another state ; and as a part of a judicial opinion, intended for the profession, was an apt and intelligible description of the degree of capacity required. But it does not particularize the elements of the business, was not intended as a guide for the jury, and was not alone or in connection with the first branch of the request, a sufficient instruction for them.
2. The court did not conform to the second request of the appellants in terms, but it did in substance. The whole charge recognizes the principle that undue influence vitiates a will. The request did not define or imply what undue influence was ; and the court very properly told the jury what was and what was not such influence. And in performing this plain duty the court adopted the true rule.' It was not necessary for the court to tell the jury that a less degree of [450]*450influence would overcome the free agency of a weak man than was required to overcome that of a strong one. That is a matter of fact, founded on common experience, and was doubtless urged in argument to and appreciated by the jury; not a principle of law, in respect to which the court was bound to instruct them.
8. The next four requests relate to the same subject-matter and may be considered together. They assume a confidential relation between Mr. Loomis and Mr. Hynnott, who were legatees, and the testator, that the law presumes undue influe'nce from such a relation, and that the burden was upon them to show by satisfactory proof that such presumed influence did not in fact, or in any degree, induce the giving of those legacies. Thus far the court recognized the propriety of the requests, and charged the jury in conformity with them. But one of the requests went further, and asked the court to charge that, as to the legatee who drew the will, and between whom and the testator the relation of attorney and client subsisted, unless the jury should find that means were employed, by the intervention of a third person or otherwise, to prevent such relation from influencing the testator in the disposition of his property, it would be their duty to find the legacies given him and his son void. The court did not so charge, but in that omission we perceive no error.
The rule that undue influence in respect to a legacy is to be presumed, when the relation of attorney and client subsists between the testator and the legatee, and the will is drawn by the latter, is well established, and was recognized in the charge of the court. But we have been referred to no authority, and know of none, which sustains or recognizes the claim of the appellants, nor upon principle can such intervention or caution be required as matter of law. The presumption is one of fact — a badge of fraud, (for undue influence is a species of fraud,) — and, like other presumptions of fact, may be rebutted by any evidence which tends to show, and satisfies the jury, that in the particular case it is untrue. It is not that the mere relation necessarily induces or exerts an undue influence, as the request implies, (for all [451]*451legacies by clients to their attorneys are not presumptively induced by undue influence,) but because drawing the will presents an opportunity and a temptation, which, together with tire personal friendship and confidence and influence of the relation, justify suspicion and the requirement from the legatee of satisfactory evidence that the opportunity was not embraced and the influence was not exerted. Sir Edward Coke advised the intervention of the neighbors in a class of presumptively fraudulent conveyances, but in order to furnish evidence of the Iona fides of the transaction, not to prevent a fraud. We know of no instance where a preventive intervention has ever been advised. Whether the jury should or should not be satisfied, in any particular case, that the bequest was not induced by undue influence, without evidence of the precaution and intervention claimed, it is their province to determine, and the argument that they should not is for them.
When therefore the court told the jury that the presumption existed, and that it threw upon the appellees the burden of showing, by a clear preponderance of evidence, that every thing connected with the making and execution of the instrument was free from impropriety and unfairness, and that it was necessary that they should be satisfied that the relation had no undue or improper influence over the mind of the testator, and did not induce him to make a different disposition of his estate or any portion of it from what he otherwise would have done, it gave them all the instruction which the appellants could lawfully or reasonably require.
Eor these reasons a new trial is not advised.
In this opinion the other judges concurred, except Hinman, C. J., who did not sit.