
    Argued February 18,
    affirmed March 23, 1920.
    RICE v. RICE. 
    
    (188 Pac. 181.)
    Wills—Contestant has Burden of Showing Fraud and Undue Influence.
    1. Contestants have burden of showing by a preponderance of the evidence their allegations of fraud and undue influence, which induced testatrix to make the will as she did.
    Wills—Proponents must Prove Testamentary Capactiy When Challenged.
    2. When a will is challenged on the ground of want of testamentary capacity in testator, it is incumbent upon proponents to prove decedent’s capacity to make a will by a preponderance of the evidence.
    
      Wills—Evidence of Undue Influence Held Insufficient.
    3. Testimony whieh simply showed that defendants had the opportunity to exercise undue influence upon testatrix was insufficient to authorize overturning of will.
    From Wasco: William L. Bradshaw, Judge.
    Department 1.
    This is a proceeding instituted in the County Court of Wasco County to contest the will of Eliza J. Rice. Two of the plaintiffs are George W. Rice, son, and Emma Southern, a daughter of the decedent. The other plaintiffs, six in number, are grandchildren of the decedent, descendants of her deceased children. The two defendants, Austin C. Rice and Etta Waterman, are respectively son and daughter of the testatrix. She was 84 years of age. Her husband had died on January 10th; the disputed will was executed February 23d; and she died May 24th—all in the year 1915. Her estate was appraised at $4,482.73. Two of the plaintiff grandchildren are children of Nellie Mann, daughter of the testatrix, who died subsequent to the execution of the will and prior to the death of Mrs. Rice. After directing* the payment of her debts and expenses of administration, the will made a bequest of $1,500 to her son Austin C. Rice, and gave a legacy of $10 to each of her other descendants then living except to her daughter, the defendant Etta Waterman. As a residuary' clause, the document provided that all the remainder of the estate should be divided equally between the defendants Austin O. Rice and Etta Waterman.
    The complaint by which it is sought to overturn the will is based solely on the ground of undue influence alleged to have been exercised upon the testatrix by the defendants, which the plaintiffs contend was sufficient to and did overcome the judgment of the testatrix, so that the will was not in fact her disposition of her property, but rather the product of the dominant wills and influence of the defendants. It is not averred that she lacked testamentary capacity.
    On proper issues framed, the County Court heard the testimony and found in favor of the defendants. This judgment was affirmed on appeal by the plaintiffs to the Circuit Court, and they have prosecuted a further appeal to this court.
    Affirmed.
    For appellants there was a brief and an oral argument by Mr. W. II. Wilson.
    
    For respondents there was a brief over the names of Mr. R. R. Butler and Mr. Fred W. Wilson, with an oral argument by Mr. Butler.
    
   BURNETT, J,

As taught in Simpson v. Durbin, 68 Or. 518 (136 Pac. 347), and Sturtevant v. Sturtevant, 92 Or. 269 (178 Pac. 192), the bnrden of proof is upon the contestants in such a ease as this to prove by a preponderance of the evidence their allegations of fraud and undue influence which induced the testatrix to make the will as she did. On the other hand, it is the rule that when a will is challenged on the ground of want of testamentary capacity in the testator, it is incumbent upon the proponents to prove the decedent’s capacity to make a will, by a preponderance of the evidence. As stated, this latter issue is not present in the instant case. Here, the heat of contest seems to center about the legacy of $1,500 left to the defendant Austin O. Eice. His father, husband of the testatrix, died without having made a will. The defendants explain that bequest in this wise: Austin C. Eice some years before his father’s death was the owner of a tract of land in Wasco County, and, being in need of money, conveyed it to his father for the sum of $1,000, although it was worth at the time, as witnesses say, $2,500. While it was recognized that no legal obligation rested upon the father to make good the difference, it was conceded by both of the parents, as disinterested witnesses state, to be a moral obligation that the father should reimburse the son for the difference between the consideration named in the deed and the actual value of the land. Like many such family affairs, it was left open by the death of the father. The mother, speaking to disinterested witnesses, declared her intention to make good what her deceased husband had omitted, which seems to have convinced the County Court and the Circuit Court of the justice of the $1,500 legacy to Austin C. Eice.

After the death of her husband, some of the plaintiffs proposed to place the testatrix under guardianship, and this proposal was favored by most of the contestants and acquiesced in by others of them, but was opposed by the two defendants here so strongly that finally it was abandoned. It had the effect, however, of offending the testatrix, and probably accounts for the nominal bequests to the contestants and the residuary clause in favor of the two defendants.

The authorities relied upon by the plaintiffs on the question of undue influence in the main rest upon false representations prejudicing the parent against some child who would be the natural object of her bounty. For instance, in In re Budlong’s Will, 126 N. Y. 423 (27 N. E. 945), a son had married a domestic employed in his. father’s family which displeased the father very strongly. The parent seemingly acquiesced in the marriage afterwards, but it proved unhappy to the contracting parties. It seems that the husband on one occasion had grown very angry with his wife and uttered very harsh language to her iri the presence of his sister, who rebuked him for his mistreatment of his wife. Later he went from New York to Iowa for the purpose of procuring a divorce from his wife. She, however, followed him and resisted the suit, pending which he wrote to another sister a bitter letter denunciatory of the sister in whose presence the quarrel with his wife had taken place, and falsely accused the sister of aiding the wife in the defense of his suit. He requested that this letter be shown to his father, which was done, and it aroused in the latter all his former antipathy against the son’s wife and deeply incensed him against the sister. This was a circumstance submitted to the jury on the subject of undue influence. It was by no means the controlling feature of the case. It is not decisive of the present controversy. Here, no false representation is shown to have been made by the defendants respecting the conduct of the plaintiffs. The latter concede that the subject of guardianship -was favored by them and opposed •by the defendants, and this is what came to the old lady’s knowledge.

There is no direct testimony that either of the defendants sought to influence the mother in the making of lier will. They both flatly deny that they undertook to control her mind in any way respecting the disposition of her property. All that is shown is that they had opportunity to accomplish this sinister purpose, but that they availed themselves of the opportunity does not appear. It would be a profitless waste of space in the reports, without corresponding advantage to the profession or to the public at large, to go into details of the testimony in this opinion. That it is not enough to show mere opportunity to exercise undue influence is taught in Rowe v. Freeman, 89 Or. 428 (172 Pac. 508, 174 Pac. 727), and Sturtevant v. Sturtevant, 92 Or. 269 (178 Pac. 192).

A careful study of the testimony appearing in the record impels us to approve the conclusion of the County and Circuit Courts. The decree is affirmed.

Affirmed.

McBride, C. J., and Benson and Harris, JJ., concur.  