
    IN THE MATTER OF THE WILL OF E. J. STEPHENS.
    (Filed 11 March, 1925.)
    1. Wills — Caveat—Undue Influence — Evidence—Appeal and Error.
    Upon the trial of a caveat to a will upon the issue of undue influence, it is not required that the evidence upon the affirmative of the issue be direct, for such may be inferred from circumstances tending to show the affectionate relationship between the testator and certain of his children by a former marriage whom he had omitted from benefits, and had given his entire estate for life to his second wife with remainder to two of the children of that marriage, his being under the full care of his second wife during the latter years of his life when the will was written, and the weakened condition of his mind that would tend to subject him to her influence, with circumstances tending to show she had exercised such influence with the effect of causing him to make a will he would not otherwise have made; and the rejection of such evidence by the trial judge is reversible error.
    2. Same — Admissions of Wife of Second Marriage.
    Where a testator has devised his estate to his second wife for life, with remainder to two of his children by that marriage in exclusion of those of his first marriage, by will made while living with her, the issue of the first marriage being grown and living in their own separate homes, evidence of admissions of the second wife, relative to the question of her undue influence in procuring the will goes to show the validity of the will itself, and may be received as evidence against the interests of her children.
    Appeal by caveators from Barnhill, J., and a jury, at September Term, 1924, of HakNett.
    Tbe facts and assignments of error will be set forth in the opinion.
    
      Young, Best & Young, Baggett & McDonald and Charles Boss for caveators.
    
    
      W. P. Byrd and Clifford & Townsend for propounders.
    
   ClabksoN, J.

The exceptions and assignments of error of caveators are as follows :

“1. That his Honor erred in excluding the testimony offered by the caveators as to the admission of Mrs. E. J. Stephens, second wife and widow of the alleged testator (hereafter denoted as testator) who with her two youngest children were principal devisees and legatees, as to the weakened mental condition of her husband and her alleged undue influence over him, as set forth in the exceptions.
“The substance of this testimony being that John Stephens, son of testator, was ordered away from his father’s home by his stepmother; that Mrs. Stephens said she was going to take charge of her husband’s business and see what became of the rest of his property; that Mrs. Stephens told witness that there had a great change come over Mr. Stephens during the past several years, ‘We could handle him, do anything we wanted to, and he would give up to us. . . . Anything we asked him to do he would go ahead and do it; . . . we could manage him any way we wanted to; that Mrs. Stephens told the witness her husband had lost money, but she would see what became of the rest of i't; that he did not have sense enough to look after his business, was not like he used to be, could be led into anything; that Mrs. Stephens made unfavorable comments about the children of the former marriage, stating among other things, that she would not permit them to know of his death and burial if she could prevent it; that Mrs. Stephens told witness tbat ber husband’s mind bad considerably failed and tbat sbe and ber son, Joe, bad to watcb bim and look after bim, tbat be was not capable of attending to business; all of wbicb evidence was duly offered by tbe caveators and excluded by bis Honor.
“2. Tbat bis Honor erred in directing a verdict' in favor of tbe pro-pounders on tbe issue of undue influence, having stated at tbe conclusion of tbe caveator’s evidence as set forth in tbe' 12th exception, ‘That be would instruct tbe jury tbat there is no sufficient evidence to justify them in answering tbe issue as to undue influence in favor of tbe caveators, and tbat it would be their duty to answer it in favor of tbe propounders’; and again in bis charge to tbe jury as set forth in tbe 13th exception, stated: Now, gentlemen, you come to consider tbe third issue, wbicb is: "Was tbe execution of tbe said paper-writing procured by undue influence? Tbe court instructs you tbat there is no sufficient evidence in this case to justify you in answering tbat issue “Yes,” and in finding tbat any person exerted any undue influence upon tbe deceased in executing bis will, so it would be your duty to answer tbat issue “No,” upon tbe evidence in this case.’ ”

On tbe record in this Court, tbe only contest is over tbe exceptions and assignment of error on tbe issue “Was tbe execution of said paper-writing procured by undue influence ?”

Tbe caveators charge tbat tbe execution of tbe will of E. J. Stephens was procured by undue influence on tbe part of bis second wife, Civil Ann Stephens. E. J. Stephens, by bis first wife, bad seven children— five were living and two dead at tbe time of bis death. One daughter, Maggie Lenora Byrd, married John W. Byrd — both were dead and left five children. Both Byrd and wife were dead at tbe time tbe will was .executed on 31 March, 1921. E. J. Stephens died 6 January, 1924. By bis second wife be bad three children.

E. J. Stephens’ entire property was left to bis wife and tbe two youngest of her children. Tbe land willed, when first purchased by E. J. Stephens, was almost all in woods. Tbe boys by tbe first wife cleared up about 100 acres of tbe land and worked on tbe farm until tbe first piece purchased was paid for. E. J. Stephens married bis second wife, Civil Ann Stephens, tbe fall after bis first wife died. Tbe boys worked on tbe land until they were about 19, 20 and 21 years old and left. Some lived not far from bim. Tbe relationship between E. J. Stephens and all of bis children at tbe time of bis death was good. It was in evidence tbat E. J. Stephens bad about 450 acres of land when be died, worth about $100.00 an acre, for wbicb be paid about $3.00 an acre. There was evidence to show “a change in bis mind and body in tbe last 8 or 10 years. He was easily influenced,” not tbat way before.

George A. Wicker, a neighbor of E. J. Stephens for 42 years, testified: “I do not think from my association with him for the last three or five years that he had mental capacity to know his property, his people, his relations, and had mental capacity sufficient to make a will, knowing the effect that the will would have upon his family, on 31 March, 1921.”

It was in evidence that the second wife would often speak to her husband about the Byrd children “they did not care anything about him,” and tried to prevent him from going to see them. She spoke about his son Will, saying “Will moved back to this county because his father was getting old and would soon die and he wanted to get a part of his property.”

Sarah McLean, a half-sister to E. J. Stephens, testified that “he spoke affectionately of his different children,” etc. She further said: “After he was taken down sick, witness visited him in his home; while there he stated he had made his will and if he ever got able to travel he was going to change it. Witness told him he could get someone to come to his house and fix it for him. He never said what way he wanted to change it. Mrs. E. J. Stephens and her daughter, Mollie, were present in the room, but neither made any response when the question of changing the will was mentioned.”

The will substantially leaves all his real and personal property to his second wife for life and the remainder to her two youngest children, Joseph S. Stephens and Mary Jones Stephens; 50c to the heirs of his dead daughter, Maggie Lenora Byrd; to his other six living sons 50c each, including Cleveland C. Stephens the oldest child by his second wife, who was not living with his father. The second wife and her two youngest children lived with E. J. Stephens. The testator was much older than his wife.

There was evidence on the part of the propounders that on 29 July, 1914, the testator made and executed a will, this being written in the office of the witness, Walter P. Byrd, in the town of Lillington, and was witnessed by the same witnesses that witnessed the will offered for probate; that in this will his property was devised exactly as in the will propounded for probate with the exception that in the last will he made provisions for the disposition of property acquired since the writing of the first will, giving the after-acquired property to his wife for life, and then to his son, Joe.

■ There was evidence on the part of the propounders tending to show that on 13 March, 1921, that he came up to the auditor’s office in the county courthouse, by himself, and asked A. M. Shaw, the executor named in the first will, to procure his will which was done, and thereupon he directed A. M. Shaw to rewrite the will of 1914, disposing of his property as in said former will with the exception of devising his after-acquired real estate to bis wife for life and then to his son, Joe, and in accordance with said instruction said A. M. Shaw prepared the last will which is the paper-writing propounded for probate; that thereupon E. J. Stephens called in the same witnesses who had witnessed his will before and requested them to witness his present will; that the same was left in the hands of A. M. Shaw, who was named as executor in the second will as well as in the first.

There was evidence on the part of Dr. W. C. Melvin and J. W. Halford to the effect that they were well acquainted with the deceased during his life time, and that in their opinion he was up to a few days before his death, a man of sound mind and with sufficient intelligence to make a will, knowing the effect of the same.

There was further evidence on the part of Marvin Wade, J. W. Byrd, and N. W. Parker, and others, to the effect that the deceased during all his life was a man of strong mental capacity; that he was a man of good business judgment, was successful in the management of his own affairs, and a man of strong purpose and firm and unyielding in his convictions.

The court below charged the jury, in part, as follows: “Now, gentlemen, you come to consider the third issue, which is ‘Was the execution of said paper-writing procured by undue influence.’ The court instructs you that there is no sufficient evidence in this case to justify you in answering that issue ‘Yes,’ and in finding that any person exerted any undue influence upon the deceased in executing this will so it would be your duty to answer that issue ‘No’ upon the evidence in this case.”

The proposition for us to decide is: Was the evidence excluded competent and, if competent, was it, with the other evidence in the case, sufficient to be submitted to the jury under the issue of “undue influence.” We think the evidence excluded competent and the entire evidence on all the facts and circumstances of the case, should have been submitted to the jury.

The question of “undue influence” can be shown by direct evidence or by circumstantial evidence. A wide range of inquiry into the family relations is usually allowed.

In the case at bar, testator had eight living children at his death and children of a daughter who had predeceased him. His entire property was left to his second wife and her two youngest children — who were living with him when he died. The other children were left 50c each and all his grandchildren by his daughter 50c. We are not now considering testator’s mental capacity to make a will, but we are considering whether there was any evidence of “undue influence” by his second wife.

“As tbe strength or weakness of mind of the testator and Ms susceptibility to influence are important in determining whether undue influence was exerted, the physical and mental condition of the testator, together with his age, is, under an issue of undue influence, a proper subject for consideration by the jury, the evidence tending to show such condition is admissible. However, evidence tending to show total mental incapacity cannot be received under an allegation of undue influence.” 40 Cyc., p. 1156 (II).

In re Will of Mrs. Hardee, 187 N. C., p. 383, it is said: “In the first place, it should be observed that his Honor says the giving of the whole estate to one child, to the exclusion of other children, ‘in the absence of some reasonable ground for such preference,’ would constitute what the law calls an unnatural will (but he did not say this was an unnatural will), and such fact ‘may be considered, with the other evidence in the case, as evidence upon the question of mental capacity and undue influence.’ See In re Burns' Will, 121 N. C., 338; In re Worth's Will, 129 N. C., 228, and In re Mueller’s Will, 170 N. C., 30. In a previous portion of the charge, the jury had been instructed upon this point as follows: ‘If you are satisfied that she made an unreasonable disposition, but are not satisfied that she was lacking in testamentary capacity, or that she was unduly influenced, that cannot affect you in any way. You would disregard the question of reasonableness or unreasonableness, because, as I have already said, she had a right to make any disposition she saw fit, if she had capacity and was not unduly influenced.’ ”

The evidence on the part of the propounders was that the first will was made 29 July, 1914, and the second 31 March, 1921, and they were practically the same, except that some after-acquired property testator gave to his wife for life and then to his son Joe.

Allen, J., In re Mueller's Will, 170 N. C., p. 29, writes fully on the controlling influence, and says: “As said In re Everett's Will, 153 N. C., 85: ‘Experience has shown that direct proof of undue 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 that degree of importunity which deprives a testator of his free agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act. It is closely allied to actual fraud; and, like the latter, when resorted to by an adroit and crafty person, its presence often becomes exceedingly difficult to detect. Indeed, the more skillful and cunning the accused, and the more helpless and secluded the victim, the less plainly defined are the badges which usually denote it.' Under such conditions, the results accomplished, the divergence of those results from the course which would ordinarily be looked for, the situation of the party taking benefits under the will towards the one who has executed it, and their antecedent relations to each other, together with all the surrounding circumstances, and the inferences legitimately deducible from them, furnish, in the absence of direct evidence, and often in the teeth of positive testimony on the 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.”

In 40 Cyc., p. 1155 (b) it is stated: “Where the grounds of objection to the validity of a will are fraud and undue influence, the evidence is permitted to take a wide range and it is declared that every fact and circumstance, no matter how little its probative value, which throws light on these issues, is admissible. The range of inquiry may cover not only the provisions of the will itself and the circumstances surrounding its execution, but also the mental condition of the testator, the motive and opportunity of others to unduly influence him, his relations with persons benefited by or excluded from the will, and the acts and declarations of such persons. Although none of these matters, standing alone, may be sufficient to establish the issues, yet taken together they may have that effect. Of course evidence which throws no light whatever on the question whether fraud or undue influence was exerted, and which is wholly immaterial and irrelevant, should be excluded, as should also evidence which is too remote in point of time to furnish any reasonable ground of inference that the testamentary act was effected by undue influence.”

Testator left his property to his second wife, Civil Ann Stephens, and her two youngest children, and propounders contend if the evidence is competent and the entire evidence sufficient to be submitted to the jury, the declarations of Civil Ann Stephens tending to show undue influence should not hind her two children. The testator, Civil Ann Stephens and their two children were all living together in the same house.

The instant case is in many respects like Mullen v. Helderman, 87 N. C., 471. Smith, C. J., said, at p. 472: “Upon the trial, and after the testimony was heard, the proof of formal execution and sufficient mental capacity in the deceased was not controverted, hut conceded by the contestants, who resisted the probate upon the ground of undue influence exerted over the mind and volition of the deceased, by his wife, in procuring the making of the instrument in the sole interest of herself and her own children, to the exclusion of the children of the deceased by a former marriage, and in the impairment of that freedom essential to the validity of a disposition in a testamentary act. . . . (p. 477). But we prefer to sustain tbe ruling upon tbe ground of identity of interest among tbe beneficiaries and its common origin in an act .by wbicb tbat of eacb is secured, and wben tbe mother bears to her children'a relation not unlike tbat of agent to principal, and admitting tbe rule tbat wben tbe latter claims tbe benefit of what tbe former has done without previous authority, be must submit to tbe conditions and attending incidents of the act itself.”

But piopounders contend tbat this evidence was incompetent to bind tbe two children, and rely on Linebarger v. Linebarger, 143 N. C., p. 229. In tbe Linebarger case, tbe alleged testator gave almost bis entire estate to bis wife, Caroline Linebarger, for life, remainder to two of bis sons, being tbe youngest, Hosea and Marvin Linebarger. There was no competent evidence tbat Marvin or Caroline Linebarger used any undue influence with tbe alleged testator. Tbe question in tbe case, on this aspect, was whether Hosea’s declarations regarding bis conduct for bis own benefit should be used against them and defeat their -interest in tbe alleged will. Tbe court said tbat it could be used only against Hosea. In tbe Linebarger case, and in this case, there was no proof of conspiracy — common design — no joint action among tbe parties. In tbe present case, will tbe alleged declarations of tbe mother, Civil Ann Stephens, affect tbe two children’s interest in tbe will ? Tbe relationship existing between tbe parent and two children, tbe alleged undue influence exerted by tbe mother is tbe source naturally from wbicb she and tbe two children would be enriched. We think this alleged undue influence exerted by tbe mother, under tbe facts and circumstances of this case, affect not only tbe mother but her two children, and goes to tbe validity of tbe entire will, and as said by Smith, C. J., in the Mullen case, supra: “And admitting tbe rule tbat wben tbe latter claims tbe benefit of what tbe former has done without previous authority, be must submit to tbe conditions and attending incidents of tbe act itself.”

In this case tbe mother was tbe agency through wbicb tbe alleged testator was induced to favor bis two youngest children, all living under tbe same roof, and exclude those who bad gone out in life from tbe “old homestead.”

■ Tbe case is not free from doubt, but, on account of tbe peculiar relationship existing between tbe parties, if tbe mother exerted undue influence on tbe testator, under tbe facts and circumstances of this case, it went to tbe validity of tbe entire will.

From a careful review of tbe entire record and tbe law, we think there should be a

New trial.  