Taylor v. Wilburn

Scott, Judge, delivered the opinion of the court. There is no doubt but that the burden of proof in this case was upon the petitioners or plaintiffs. They did not deny the execution of the will, but set up such weakness and infirmity of intellect, caused by sickness and age, as rendered the testator not of a sound and disposing, mind, and such an influence exercised over him as vitiated his will. But in making this admission, we cannot see any consequence resulting from it injurious to the plaintiffs by reason of the first instruction given at their instance by the court. That instruction directs the jury to find for the plaintiffs, unless they believe from the evidence that John Wilburn was of sound mind at the time of making his will. Now this instruction did not relieve the petitioners from the burden they had assumed of showing insanity in the testator. The instruction is to the effect that the insanity of the testator must be shown by the plaintiffs in order to obtain a verdict. To say that the act of a man is void, unless he was of sound mind when he performed it, is the same thing as to say the act of a man of -unsound mind was void. When the objection to the validity of a will is the insanity of the testator, it is generally sufficient to show that he was of a sane mind at the time of its execution. But where a will is impeached for undue influence exercised over a weak intellect, and that too, by one holding the close and constant relationship of a wife, it is not sufficient to show that the testator was not under restraint at the moment of the execution of the will. Such is the nature of the human mind, that when it has been habituated to the influence of another, it will yield to that influence and suffer it to have its effect, although the person in the habit of its exercise may not be present or exert it at the time an act is done. So that the inquiry, in such cases, is not whether an undue influence was exerted at the time of the execution of the will, but whether an [310] influence bad been acquired, and did operate in the disposition of bis property by the testator. After one mis-trial and two verdicts against the will, this court would scarcely be warranted in pronouncing that the facts assumed in the second and eleventh instructions of the plaintiffs, were not warranted by the evidence. The first instruction given for the defendants was broader than the first given for the plaintiffs, but, so far as they relate to the question of the sanity of the testator, there was no inconsistency between them. This is sufficiently' apparent from the considerations above stated. Nor is there any contrariety between the plaintiffs first, and third instructions. As the evidence warranted the instructions given for the plaintiffs, and as all the instructions asked by the defendants were given, which fully explained the nature of the influence to be exerted, in order to invalidate a will, and as there have been one mis-trial and two verdicts against the will, we are satisfied that no advantage would ultimately result to the defendants from disturbing the judgment of the court below. Judge Ryland concurring, tbe judgment will be affirmed.