In Re Will of Mueller

Allen, J. Tbe influence which destroys tbe validity of a will is a fraudulent influence, controlling tbe mind of tbe testator so as to induce him to make a will which be would not otherwise have made. It is tbe substitution of the mind of tbe person exercising tbe influence for tbe mind of tbe testator. Wright v. Howe, 52 N. C., 412; In re Abee, 146 N. C., 214. As said in In re Everett’s Will, 153 N. C., 85: “Experience has shown tbat direct proof of undue or fraudulent influence is rarely attainable, but inferences from circumstances must determine it.” It is “generally proved by a number of facts, each one of which standing' alone may have little weight, but taken collectively may satisfy a rational mind of its existence.” It is “said to be tbat degree of importunity which deprives a testator of bis free agency, which is such as be *30 is too weak to resist, and will render tbe instrument not bis free and unconstrained act. It is closely allied to actual fraud; and, like tbe latter, when resorted to by an adroit and crafty person, its presence often becomes exceedingly difficult to detect. Indeed, tbe more skillful and cunning tbe accused, and tbe more helpless and secluded tbe victim, tbe less plainly defined are tbe badges wbicb usually denote it. Under sucb conditions, tbe results accomplisbed, tbe divergence of those results from tbe course wbicb would ordinarily be looked for, tbe situation of tbe party taking benefits under tbe will towards tbe one who has executed it, and their antecedent relations to each other, together with all tbe surrounding circumstances, and tbe inferences legitimately deducible from them, furnish, in tbe absence of direct evidence, and often in tbe teeth of positive testimony to tbe contrary, ample ground for concluding that fraud or undue influence has been resorted to and successfully employed. Grove v. Spiker, 72 Md., 300.” 18 A. and E. Anno. Cases, 412. It is generally recognized that tbe following circumstances are evidence of undue influence in tbe execution of a will, and that when combined they are sufficient to .support a verdict against tbe will, and in some jurisdictions several of them, considered separately, are said to raise a presumption of fraud and undue influence: 1. Old age and physical and mental weakness. 2. That tbe person signing tbe paper is in tbe borne of tbe beneficiary and subject to bis constant association and supervision. 3. That others have little or no opportunity to see him. 4. That tbe will is different from and revokes a prior will. 5. That it is made in favor of one with whom there are no ties of blood. 6. That it disinherits tbe natural objects of bis bounty. 7. That tbe beneficiary has procured its execution. Tbe authorities supporting tbe admissibility of these circumstances on tbe issue of undue influence are collected and approved and their legal effect discussed in tbe valuable opinion of Associate Justice Brown in tbe Everett Will case, 153 N. C., 85, and In re Worth’s Will, 129 N. C., 223, and in tbe text and notes of 40 Cyc., 1154 et seq. Tbe evidence introduced by tbe caveators shows tbe presence of all these circumstances, and, in addition, there are declarations of tbe testator sustaining their position. Tbe evidence tends to prove that tbe testator was old and in a dying condition of cancer of tbe liver; that tbe will was executed seven days before bis death; that it disposed of land worth $2,000 and of other real and personal property; that Breternitz and bis wife, who were not related by blood to tbe testator, were tbe sole beneficiaries, and that *31 Henry Breternitz, tbe husband, was tbe sole executor; that tbe will disinherited the children of the testator; that it revoked a prior will which gave to Breternitz and his wife $400 and devised the remainder of his property to be equally divided between his children; that it was ■executed in the home of Breternitz two weeks after he went there, and that during that time other persons had little or no opportunity of ■communicating with him; that at the time of its execution no one was present except Breternitz and his wife and the attorney who wrote the will, and two witnesses who were called in to sign it after it had been written by the attorney; that Breternitz went after the attorney and that the wife of Breternitz paid him for his services; that the testator did not know the attorney, and the attorney says in his evidence that after he reached the home “I asked him (Mueller) if he had any children, and he said ‘Yes; but I want to give my property to Mr. Henry Breternitz and his wife.’ I asked him if he had any particular property that he wanted to give to either, but he said ‘It did not make any difference to him; that whichever way they wanted it would be satisfactory to him’ ”; that there is no evidence that the relationship between the testator and his children was not friendly and affectionate. In our opinion, these circumstances were fully sufficient to justify submitting the question of undue influence to the jury. There are several exceptions to 'the evidence which we need not consider in detail. The objection to the evidence of the son is under section 1631 of the Revisal, but it cannot be sustained because it does not appear that he testified to a communication or personal transaction with the deceased, and as appears from the brief of the propounders, it was favorable to them and tended to sustain their contention. ,. There is No error.