
    In re Will of ALBERT MUELLER.
    (Filed 3 November, 1915.)
    1. Wills — Caveat—Undue Influence.
    The influence which destroys the validity of a will is a fraudulent influence, controlling the mind of the testator so as to induce him to make a will which he would not have otherwise made, or a substitution of the mind of the person exercising the influence for the mind of the testator.
    2. Same — Trials—Evidence—Questions for Jury.
    In an action to set aside a will for undue influence, evidence thereof is sufficient to be submitted to the jury which tends to show that the testator made the will when at the home of his sister-in-law, when old and in a dying condition of cancer of the liver, giving all of his property to his sister-in-law and her husband, making the latter sole executor, disinheriting his children and revoking a former will made in favor of his children; that the will was made several days before the testator’s death and shortly after he came to the home of the beneficiaries thereunder, one of them sending for and paying the attorney who wrote the will, the attorney testifying that the testator directed him to make the will in accordance with the desires of the beneficiaries named therein, who were present at the time; the children of the testator being absent; that there was no evidence that the relationship between the testator and his children was not friendly.
    3. Evidence — Deceased Persons — Interpretation of Statutes — Appeal and Error.
    Objection to testimony under the provisions of Revisal, sec. 1631, as to the communications or personal transactions with a deceased person, cannot be sustained when it appears on appeal that they wére not of the prohibited character, that they were in favor of the appellant, and tended to sustain his contention.
    
      Appeal by propounders from Justice, J., at tbe April Term, 1915,' of - Columbus.
    Proceeding to caveat tbe will of Albert Mueller, Sr.
    Tbe caveators admitted tbat tbe alleged testator bad sufficient mental capacity to make a will, but alleged tbat tbe execution of tbe will was procured by undue influence.
    Tbe will was signed 14 December, 1913, and Albert Mueller died 21 December, 1913, of cancer of tbe liver. Three weeks before bis deatb be was moved to tbe borne of Henry Breternitz, where be remained until bis deatb. Henry Breternitz and bis wife, Camilla, were not related to him by blood, but Camilla is tbe sister of bis deceased wife. The-said Albert Mueller left children surviving him. After being at tbe borne of Breternitz two weeks, tbe paper-writing was executed giving all of bis estate to Henry Breternitz and bis wife and leaving Henry Breternitz as bis sole executor. Tbe paper-writing devised to Breter-nitz and bis wife a tract of land valued at $2,000 and other real and personal property. It was written by an attorney whose services were paid for by Mrs. Breternitz, and Mr. Breternitz went after tbe attorney and engaged bis services. Albert Mueller did not know tbe attorney. When tbe attorney reached tbe home of Mr. Breternitz be found Mr. Mueller in bed very sick and unable to get up. There was evidence of other circumstances which will be adverted to in tbe opinion.
    Tbe formal execution of tbe paper-writing was proven, and tbe pro-pounders requested bis Honor to instruct tbe jury tbat there was no. evidence of undue influence, which was refused, and tbe propounders excepted. There was a verdict and judgment in favor of tbe caveators, and tbe propounders appealed.
    
      Schullcen, Toon & Schullcen for propounders.
    
    
      MacBaclcan & Greer and Winston & Biggs for caveators.
    
   Allen, J.

Tbe influence which destroys tbe validity of a will is a fraudulent influence, controlling tbe mind of tbe testator so as to induce him to make a will which be would not otherwise have made. It is tbe substitution of the mind of tbe person exercising tbe influence for tbe mind of tbe testator. Wright v. Howe, 52 N. C., 412; In re Abee, 146 N. C., 214.

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

It is generally recognized that tbe following circumstances are evidence of undue influence in tbe execution of a will, and that when combined they are sufficient to .support a verdict against tbe will, and in some jurisdictions several of them, considered separately, are said to raise a presumption of fraud and undue influence:

1. Old age and physical and mental weakness.

2. That tbe person signing tbe paper is in tbe borne of tbe beneficiary and subject to bis constant association and supervision.

3. That others have little or no opportunity to see him.

4. That tbe will is different from and revokes a prior will.

5. That it is made in favor of one with whom there are no ties of blood.

6. That it disinherits tbe natural objects of bis bounty.

7. That tbe beneficiary has procured its execution.

Tbe authorities supporting tbe admissibility of these circumstances on tbe issue of undue influence are collected and approved and their legal effect discussed in tbe valuable opinion of Associate Justice Brown in tbe Everett Will case, 153 N. C., 85, and In re Worth’s Will, 129 N. C., 223, and in tbe text and notes of 40 Cyc., 1154 et seq. Tbe evidence introduced by tbe caveators shows tbe presence of all these circumstances, and, in addition, there are declarations of tbe testator sustaining their position.

Tbe evidence tends to prove that tbe testator was old and in a dying condition of cancer of tbe liver; that tbe will was executed seven days before bis death; that it disposed of land worth $2,000 and of other real and personal property; that Breternitz and bis wife, who were not related by blood to tbe testator, were tbe sole beneficiaries, and that Henry Breternitz, tbe husband, was tbe sole executor; that tbe will disinherited the children of the testator; that it revoked a prior will which gave to Breternitz and his wife $400 and devised the remainder of his property to be equally divided between his children; that it was ■executed in the home of Breternitz two weeks after he went there, and that during that time other persons had little or no opportunity of ■communicating with him; that at the time of its execution no one was present except Breternitz and his wife and the attorney who wrote the will, and two witnesses who were called in to sign it after it had been written by the attorney; that Breternitz went after the attorney and that the wife of Breternitz paid him for his services; that the testator did not know the attorney, and the attorney says in his evidence that after he reached the home “I asked him (Mueller) if he had any children, and he said ‘Yes; but I want to give my property to Mr. Henry Breternitz and his wife.’ I asked him if he had any particular property that he wanted to give to either, but he said ‘It did not make any difference to him; that whichever way they wanted it would be satisfactory to him’ ”; that there is no evidence that the relationship between the testator and his children was not friendly and affectionate.

In our opinion, these circumstances were fully sufficient to justify submitting the question of undue influence to the jury. There are several exceptions to 'the evidence which we need not consider in detail.

The objection to the evidence of the son is under section 1631 of the Revisal, but it cannot be sustained because it does not appear that he testified to a communication or personal transaction with the deceased, and as appears from the brief of the propounders, it was favorable to them and tended to sustain their contention. ,.

There is

No error.  