Estate of Walton

Per Curiam, There was a grave irregularity in the execution of the first codicil. One of the subscribing witnesses did not attest it in the presence of the testatrix. But there was a subsequent codicil properly executed and attested, and that codicil contained an express republication of both the will and the first codicil, and the latter instrument was thereby validated. By far the most important contention of the contestants was the proposition that the legatee, Herman W. Lentz, was the confidential agent and trusted adviser of the testatrix, and that he procured the preparation and execution of the will of 1891, under which he took a large part of the estate of the testatrix, and that he was therefore subject to the rule which requires such persons to give affirmative proof that the will was the intelligent act of the testatrix, done with a full knowledge of its contents and also of her property and of the disposition made of it by the will. If there were nothing else in the case but this will the rule invoked would he clearly applicable, because this legatee did occupy a very close and confidential relation with the testatrix, and he was her trusted adviser, and he did take a large benefit under the will, and he did intervene in the preparation and execution of the will. But it was most positively and without contradiction shown in the testimony that in April, 1887, the testatrix executed another will, which was prepared by Mr. Morris, who was her family solicitor, from instructions received, from her, without any intervention by Lentz, and by which he received precisely the same legacy as is contained in the present will. And Mr. Morris testified that she was of perfectly sound mind at the time, and there is no evidence impugning the integrity of that will on this record. Moreover, the will of 1887 gave nothing but some furniture and books and pictures to Rosanna Knowles, one of the present appellants, while the will of 1891 and the first codicil gave her [534] $6,000 in money, and the second codicil gives her all the furniture, household effects and “ personal effects generally ” without restriction. Under the will of 1891 Lentz takes a less valuable interest than he would have taken under the will of 1887. Moreover, it was testified and not contradicted that the only difference between the two wills was a change in some unimportant provisions growing out of the death of one of the legatees. It was testified by Lentz that there was a second will executed some time in 1887 or 1888, which was subsequently destroyed, and that the testatrix instructed him to take the former will to another person than Mr. Morris and have a new will made just like the old one, except in the matter of the changes, and that -this was the way it happened that the last will was written. There was no evidence to impeach the correctness of this testimony. In view of these circumstances the rule affecting confidential agents taking benefits under wills which they have prepared or caused to be prepared does not prevail, and we are of opinion that the learned court below was entirely right in refusing its application. In regard to the habit of using intoxicating liquors in excess, the testimony was most violently contradictory, and if the fate of the case depended upon that consideration it would have to be submitted to a jury. But the fact itself does not necessarily affect the validity of wills executed by such persons. As the evidence of the condition of the testatrix at the time the will of 1891 and the codicils were executed shows not only that the testatrix was not then affected by intoxication, but that she was in an entirely sound mental condition, and as we fail to discover any evidence showing solicitation by the legatee, Lentz, to have the testatrix leave to him any part of her property, it would not be possible to sustain a verdict against the will on the ground of undue influence, and we do not feel that we can say there was error in the refusal of an issue by the learned court-below. We sustain the action of the court substantially for the reasons stated in the opinion. Decree affirmed and appeal dismissed at the cost of the appellants.