
    WESTBROOK v. WILSON.
    (Filed May 11, 1904).
    
      WILLS — Undue Influence — Fraud—Instructions.
    In proceedings to probate a -will, an instruction that if the devisees “influenced” the testator the finding should be for the caveators, is not ground for a new trial, in view of the entire charge of the court herein.
    ActioN by J. E. Westbrook and others against Lottie Wilson and others, heard by Judge E. B. Jones and a jury, at January (Special) Term, 1904, of the Superior Court of RutheRfobd County.
    This was an issue of devisavit vel non, the caveators being the children and only heirs at law of the alleged testator. The propounders were the children of one Lottie Wilson, to whom the larger portion of the estate was given in the alleged will. The caveators alleged and introduced evidence tending to prove that their father at the date of his will was eighty-two years of age; that by reason of dissipation, sickness and old age, his mental and physical powers were so much impaired that he was incapable of making a valid will or other disposition of his property. That, if not legally incapable of doing so, he was the victim of fraud and undue influence exerted over him by Lottie Wilson, with whom he lived in an illicit relationship, and of her two sons, who were bastards, living in the same house. That the said Lottie Wilson, an unchaste, immoral woman, wielded an almost irresistible influence over him. That by reason of his age, condition of health and an accident sustained by being thrown from a mule, he was easily influenced by said Lottie Wilson, who had absolute control over him. The two sons of said Lottie were named as executors to the alleged will; that he was coerced and compelled to sign it by threats and other undue influence of tbe said, parties. The propounders, admitting the age and infirm condition of tbe alleged testator, denied tbat be was incapable of executing tbe will or that any undue influence or coercion was exerted over bim. Tbe usual issue was submitted to tbe jury, to which they responded in the negative, and from tbe judgment rendered thereon the pro-pounders appealed.
    
      McBrayer & Eaves, for tbe plaintiffs.
    
      Eaves & Rucker, for tbe defendants.
   Connor, J.

The only exception and assignment of error in tbe record is directed to the eighth special instruction given in response to the prayer of tbe caveators, to-wit: “The burden is upon tbe caveators to establish fraud or undue influence, and in passing upon this question it is your duty to take into consideration tbe relation of tbe alleged testator to the devisees; bis age and state of health at tbe time; tbe circumstances surrounding bim, and tbe manner of disposition of such property; and if from all the circumstances surrounding tbe execution of tbe said paper-writing, you shall find tbat the said paper-writing was influenced by tbe beneficiaries, or any of them, then you will answer tbe issue No.” Tbe criticism of this instruction is to the use of the word “influenced” in tbe concluding sentence, in tbe absence of any qualifying word. Tbe propounders say tbat thereby tbe jury were instructed to return a verdict in condemnation of the will if they found tbat the alleged testator was in any way, or to any extent, influenced to execute it by tbe propounders. The exception is well taken and must be sustained unless, as contended by tbe caveators, tbe error is rendered harmless by what is said in other portions of tbe charge. Tbat a person may by proper influences be induced to make a valid disposition of bis property is well settled. As if such influences be addressed to his sense of justice, his affection, or his relation to other persons, there can be no possible valid objection, either in law or morals. The kind and degree of influence which the law denounces as undue, and therefore vitiating, are such as overrule and control, dominate and direct the mind and will of the person operated upon. Wright v. Howe, 52 N. C., 412. It is a fraudulent influence which controls the mind of the testator so as to induce him to make a will which he would not have otherwise made. Marshall v. Flinn, 49 N. C., 199.

The caveators make no contention in regard to the law, but direct attention to the entire charge of his Honor, and say that when read as a whole instruction it is impossible for the jury to have been misled by the failure at this point to use the word “undue” or some other appropriate term. It is settled that if a charge is contradictory in presenting material aspects of the law a new trial will be awarded. This must be so, because this Court cannot know to what extent the jury is misled or confused. Williams v. Haid, 118 N. C., 481. It is equally well settled that when reading the entire charge it is manifest that the jury could not in any reasonable view have misunderstood the real matter in controversy, or the law bearing thereon, a new trial will not be awarded. To the criticism made of the charge in Lewis v. Sloan, 68 N. C., 557, this Court said: “But upon a consideration of the instructions as a whole, we think they called the attention of the jury, as fairly as could be expected under the circumstances, to the material questions upon which they were to pass.” The same rule is announced and followed in Dills v. Hampton, 92 N. C., 565, and State v. Keen, 95 N. C., 646.

His Honor’s charge was very full and clear. There is no possible criticism to be made of it, certainly not by the propounders, except in the particular pointed out. He gave tbe jury a full and. clear statement of tbe contentions of tbe parties and of tbe testimony. He also stated correctly tbe definition and test of mental capacity requisite to make a will, and of wbat constituted such undue influence as would invalidate a will. He further said tbat “Tbe caveators contend tbat if you should find tbat at all times tbe testator bad sufficient mind to apprehend, understand and know tbe consequences of bis act in making the will and disposing of bis property, yet tbe evidence shows tbat tbe testator’s mind was very weak and feeble; tbat bis disease was such as to weaken bis mind; tbat being weak in body and mind be was surrounded by tbe beneficiaries of tbe will, and tbat their influence, domination and control over him were such as to put him in fear, to coerce and influence and force bis conduct in writing tbe will as it was made, and by these means tbe will of tbe testator was perverted from its free action or thrust aside entirely, and the will of tbe beneficiaries substituted for tbe will of tbe testator; tbe caveators must show to you by tbe greater weight of evidence tbat these infectious influences existed, and tbat they, tbe beneficiaries, were successful in procuring tbe making of the will as it was made. If you find as a fact from tbe evidence tbat tbe testator lived an adulterous life, cut loose and abandoned his children begotten in lawful wedlock, and lived entirely, or a greater part of tbe time, with Lottie Wilson, bis mistress, treating her as bis lawful wife and recognizing tbe children begotten by her as bis offspring, these facts and circumstances alone would not be sufficient to show fraud, undue influence and coercion in making tbe will; but you may consider them along with other facts and circumstances in passing upon the question of fraud, undue influence and coercion, which is alleged by tbe caveators to have existed at tbe time of tbe execution of tbe will. If you find there was no fraud, undue influence, «coercion or threats which procured tbe execution of tbe will, and that tbe testator bad mental capacity to make tbe will on tbe 24th of February, 1903, it would be your duty to answer tbe issue Yes.”

We think that in view of this clear and explicit instruction in regard to tbe kind and degree of influence which would invalidate tbe will, tbe jury could not have understood bis Honor to say, or to mean, that any other test should bo applied to tbe will, or that they should disregard all that be bad theretofore said to them upon that point. Tbe language of Mr. Justice Montgomery in Crenshaw v. Johnson, 120 N. C., 270, is directly in point: “If tbe charge, on tbe whole, was not full and clear on tbe point to which tbe exception is directed, we would have no hesitancy in ordering a new trial for tbe reason set out in tbe exception. But upon reading tbe whole charge it is perfectly clear, that on this point tbe jury could not have been misled. Tbe language used by tbe Judge, when taken in connection with tbe balance of tbe charge, was so manifestly an inadvertence that it could have produced no barm.” After a careful examination of tbe entire record we find no reversible error. While it is not our province to pass upon tbe verdict, we think that it is amply supported by tbe evidence sent up to this Court. We are not sure that bis Honor should not have told tbe jury that if they found tbe facts in regard to tbe age, mental and physical condition, habits, etc., of tbe testator, coupled with bis relations with Lottie Wilson and her sons, to be as contended by tbe cave-ators, tbe burden of proof would have been on them to rebut tbe presumption of undue influence. Wills made by men under such conditions and surroundings should be sustained only when it clearly appears that they are tbe offspring of a sound and disposing mind, free from tbe baleful influence of those who have obtained control of tbe maker. There is

No Error.

Douglas, J.,

dubitante. I feat we are too much influenced in tbis case by its intrinsic equities, and that in our desire to prevent injustice we are ignoring those settled principles of law which experience has shown to be essential to the permanent administration of justice itself. It is always dangerous to stretch general principles too far to cover particular cases. A late eminent statesman, who was regarded as somewhat inflexible in his opinions, said that he was afraid to stretch a principle or a blanket too much at the edges, as he might split it down the middle.

This case goes beyond Crenshaw v. Johnson, 120 N. C., 210, because there the error and correcting portion of the charge were in a consecutive paragraph. I fear it comes within the rule laid down in Edwards v. Railroad, 129 N. C., 78, and 132 N. C., 99.  