
    In re Will of HIRAM V. ALLRED.
    (Filed 24 November, 1915.)
    1. Wills — Statutory Rights — Witnesses—Presence of Testator.
    The right to testamentary disposition of property rests on statute, which among other things provides that when the paper offered for pro-hate is not in the handwriting of the testator it shall be attested by witnesses who have subscribed the same in the presence of the testator.
    2. Same — Sight—Other Senses — Blind Testators.
    The requirement that a paper-writing offered for probate as a will shall be subscribed by attesting witnesses thereto in the testator’s presence does not exclude the operation of the testator’s senses other than sight; and a blind man may make a valid will when it appears that he requested the witnesses to sign as such, who did so at the time, in the same room in which the testator was sitting, a few feet from him; that one of the witnesses had written the will, read it over to the testator, item by item, and item by item the testator said it was right, the other witness, being present, then signing the will, as stated, in the presence of the other, who watched him do so.
    3.Wills — Confidential Relations — Beneficiaries—Father and Son — Presumptions — Instructions—Trials—Questions for Jury.
    Where upon a caveat of a will the presumption of undue influence is relied upon as a presumption from the confidential relationship existing - / i I ■between the testator and the beneficiary, semMe, that this presumption would not obtain where the father is old and blind, depending upon his son, the beneficiary, who was living with and caring for him and his property. But were it otherwise, the evidence presents a question for-the determination of the jury, and a request by caveator for a peremptory instruction is properly refused. As to whether this principle applies only as to gifts inter vivos, Quwre.
    
    4. Wills — Instructions—Undue Influence — Appeal and Error — Harmless Error.
    Where a will is sought to be set aside for undue influence upon the-testator, and there is evidence tending to show such influence theretofore, so as to infer its existence at the time of its execution, an instruction by the court that the jury must find that it was exercised at the timé-is reversible error to the caveator’s prejudice; but it appearing from the context of the charge in this case that it must have been operative at that time, no error is found.
    Appeal by caveators from Rountree, J., at April Term, 1915, of SuRRT.
    Proceeding to caveat a will upon tbe ground:
    1. That tbe paper-writing offered for probate was not executed as-required by tbe statute in that tbe subscribing witnesses did not attest it in tbe presence of tbe testator.
    2. For that tbe testator did not have sufficient mental capacity to-enable bim to make a will.
    3. For that tbe execution of tbe will was procured by undue influence..
    It was admitted upon tbe trial tbat tbe testator did bave sufficient mental capacity, and tbis ground of objection to tbe paper-writing as; a will was abandoned by tbe caveators.
    Tbe testator was blind and tbe evidence as to tbe execution of the-will is as follows:
    R. D. Critz testified: At tbe time of tbe alleged execution of tbis will I lived witbin a mile and half of H. Y. Allred. In consequence of request I went to Mr. Allred’s house 27 March, 1905. He told me be-wanted me to write bis will for bim, when I got there. He told George-Allred to go and get Mr. Wolfe to witness it. I wrote tbe will. I wrote-tbe will in accordance with what be told me. I first read tbe sections to-bim, and after I got tbe whole will wrote I went back and read it all over to bim. He said it suited bim; tbat was tbe way be wanted it.. Mr. Wolfe came. I might bave started tbe will before Wolfe came, got tbe form written, before be got there. He was there at tbe time these-bequests were made. Mr. Allred was blind. I wrote bis name and then held tbe pen and took bis hand and placed it on tbe pen and made bis-mark tbat way. Mr. Wolfe was standing there present. Mr. Wolfe and myself signed as witnesses. I signed tbe witness as a subscribing witness at bis request. Mr. Wolfe did, too. We were in tbe presence of each other and in tbe presence of Mr. Allred. He knew tbat we both signed the will there in his presence as witnesses. After the will was signed and witnessed, he told his son George to take it and put it away for him. H. Y. Allred, in my opinion, had sufficient mental capacity to understand what property he was disposing of, the persons to whom he was giving it, and the purpose for which he was disposing of it. Subsequent to this I was called upon to write a codicil to his will, on 31 May, 1909. lie sent for me and I went to his house and wrote the codicil. "When I got there he sent his son George to get Mr. Pete Beamer as a witness, and while he was gone I wrote out the codicil and was waiting for him to come before I read it over to Mr. Allred. Then we both signed it as witnesses. Upon its completion I then wrote Mr. Allred’s name. I took his hand and placed it on the pen and he make his mark. Mr. Beamer was there in his presence and in my presence. At that time his mental condition was good. He was sitting there by the fire. I did the writing about four feet from him; he was in front of the fire and I was to one side. I used a table to write on; it was already in the room when I got there. I read it all over to Mr. Allred. Mr. Allred had hold of the paper. I laid the paper on his lap. He signed it on his lap. It was ten or fifteen minutes after I wrote that he signed it. During that time I had the paper in my hand. I read the first will over to Mr. Allred in sections as I read it; then I read it all over to him. I was between him and the table. He did not sign on the table; I laid it down on his lap; I held to the pen and he held to the staff. I did not witness it at the same time I wrote his name. I did not sign it on his lap. No, sir. After he signed it on his lap, four or five feet from me, I turned and laid it on the table and signed it. My face was west and his was east. If his eyesight had been good he could have seen me sign it. I was a little farther back. When the other witness signed it, Mr. Allred was at the same place. I was standing right there looking at the witness when he signed. I got up and let him sit down at the table. I stood right behind him and saw him sign it.
    The caveators contended upon this evidence that as the paper-writing wa's signed by the testator while it was resting in his lap and was then taken by the witness and placed on a table about four feet from the testator but in the same room, and there subscribed by the witnesses with their backs to the testator, that this was not a compliance with the statute requiring the paper-writing to be subscribed by the witnesses in the presence of the testator, and they presented this contention by several prayers for instructions, which were refused, and they excepted.
    The testator left surviving him six sons, three of whom are the principal beneficiaries under his will, and the caveators offered evidence tending to prove that one of these sons had never married and had lived with his father and mother and for 'twenty years had had charge of his farm and had managed his business, and that during the last six years tbis son and the other two sons who were beneficiaries under the will had had control and management of his business.
    The caveators requested his Honor to charge the jury as follows:
    “When one is the general agent of another and has entire management of his affairs, so as in effect to be as much his guardian as the regularly appointed guardian of an infant, a presumption of fraud, as matter of law, arises from a transaction between the agent and his principal for the latter’s benefit, and it will be decisive of the issue in favor of the principal unless rebutted.”
    This prayer was refused and the caveators excepted.
    The caveators also excepted for that his Honor, in his charge to the jury upon undue influence, stated that it must be an influence “exercised upon the mind of Mr. Allred át the time of making the will.”
    There was a verdict in favor of the propounders, and from the judgment rendered thereon the caveators appealed.
    
      A. E. Holton and J. U. Folger for caveators.
    
    
      S. P. Graves and W. F. Garter for propounders.
    
   AlleN, J.

The right to dispose of property by will is a creature of statute and it is generally provided when the paper-writing offered for probate is not in the handwriting of the testator that it shall be attested by witnesses, who are required to subscribe the same in the presence of the testator.

There was at one time a disposition to give a restricted meaning to the term “in the presence of the testator,” and to hold that it meant “in the sight of or within the scope of the vision,” but as it was soon seen that this narrow construction would prevent a blind man from making a will and that it excluded the operation of the other senses, except that of sight, a broader and more liberal construction has been generally adopted, and it is now well settled that a blind man may know of the presence of the witness without sight and that he may make a will. Bynum v. Bynum, 33 N. C., 632; Underhill on Wills, Vol. 1, 267; Ray v. Hill, 28 S. C., 302; Reynolds v. Reynolds, 24 S. C., 253; Riggs v. Riggs, 135 Mass., 238.

“In the case of a blind man the superintending control which in other eases is exercised by sight must be transferred to the other senses.” Ray v. Hill, 28 S. C., 304.

“He must first be made sensible through his remaining senses that the witnesses subscribed in his presence.” Reynolds v. Reynolds, 24 S. C., 256.

“It is true that it is stated in many cases that witnesses are not in the presence of the testator unless they are within his sight; but these statements are made with, reference to testators who can see. As most men can see, vision is tbe usual and safest test of presence, but it is not tbe only test. A man may take note of tbe presénee of another by tbe other senses, as bearing or touch. Certainly if two blind men are in tbe same room, talking together, they are in each other’s presence. ... In cases where be has lost or cannot use bis sense of sight, if bis mind is not affected, if be is sensible of what is being done, if tbe witnesses subscribe in tbe same room, and within bis bearing, they subscribe in bis presence.” Riggs v. Riggs, 135 Mass., 241; 1 Underhill, p. 267.

A notable instance of tbe execution of a will by a blind man is that of Francois Xavier Martin, who, after be left this State, was for thirty-one years a member of tbe Supreme Court of Louisiana, and during tbe last eight years of bis service be was totally blind. His will was contested by tbe State upon tbe ground tbat a blind man could not make a will and also because of an alleged illegal trust, but was sustained. S. v. Martin, 2 La. An., 667.

Mr. Underbill, in bis work on "Wills, Yol. 1, sec. 196, gives tbe reasons for tbe requirement of tbe statute and states bow it may be complied with by one wbo cannot see. He says: “Many of tbe statutes regulating tbe execution of wills require tbat tbe witnesses shall subscribe their names In tbe presence of tbe testator.’ The purpose and object of such statutory regulations are to enable tbe testator to see tbat tbe very persons whom be has requested to attest bis will do in fact attest it, and also to prevent wicked and interested parties from substituting, in tbe place of tbe paper which be has subscribed as bis last will, another paper of which be knows nothing. Presence in its widest meaning is the antonym of absence. Hence, where tbe statute requires a signing by witnesses in tbe presence of tbe testator a subscription to a will by tbe witnesses in tbe absence of tbe testator is absolutely void. Nor can such a fatal defect be remedied by a subsequent acknowledgment by tbe witnesses of their signature, uttered in tbe presence of tbe testator. Tbe requirement tbat tbe will shall be signed by tbe witnesses in tbe presence of tbe testator does not prescribe tbat be shall actually see tbe witnesses sign tbe will, provided they do in fact sign it in bis presence. Tbe validity of tbe execution of a will cannot be made to turn upon tbe ability of tbe testator to see; for, if such were tbe law, it is clear tbat no blind man could execute a valid will. Therefore, while bis intellect and bearing remain unimpaired, and be is conscious of what is going on about him, an attestation in tbe same room where be is, or in such proximity in another room as to be in tbe testator’s line of vision, provided be could see, and within bis bearing, will be sufficient signing in bis presence.”

It is not contended by tbe caveators that tbe witnesses did not in fact sign tbe same paper tbat was signed by tbe testator, and if these principles are applied to tbe evidence we are of opinion tbat tbe will has been properly executed, as tbe witnesses were only four feet from him and be bad tbe opportunity of knowing tbat they were signing tbe paper which be bad signed, by tbe sense of bearing, and tbe witnesses say be knew tbat they signed tbe will there in bis presence.

Tbe principle contended for by tbe caveators tbat a presumption of undue influence arises as to transactions between a confidential adviser and general manager and tbe person whose agent be is, is very generally applied, but there is highly respectable authority for tbe position of tbe propounders tbat it only .prevails as to gifts and conveyances inter vimos and should not obtain as to testamentary dispositions. Lee v. Lee, 71 N. C., 145; In re Hurlburt, 48 N. Y., App. Div., 91; Bancroft v. Otis, 24 A. S. R., 908.

In tbe last case cited there is a learned and instructive discussion of tbe question by Justice McClellan, of tbe Supreme Court of Alabama, which be concludes as follows:

“Tbe doctrine of presumed undue influence against tbe dominant party, in transactions inter vivos, seems to us eminently sound and just. It proceeds, primarily, upon tbe natural assumption tbat a living person, having, it is to be supposed, a need for bis property, or at least a desire to retain it, during life, will not part with it without a measurably adequate equivalent. Where it is made to appear tbat be has given it away, and tbat to one who- occupies a position of domination in relation to him, tbe presumption still is tbat be has not freely deprived himself of it and its use and enjoyment, but tbat bis act was induced by tbe undue exercise of tbe influence which tbe beneficiary is shown to have bad over him; and this presumption must be met by tbe donee and rebutted, else, in equity, it becomes as a fact proven — a vitiating fact in tbe transaction. With respect to testamentary dispositions, tbe primary presumption upon which tbe whole superstructure of tbe doctrine of presumed undue influence in contracts and gifts inter vivos rests is entirely lacking. They take effect upon tbe death of tbe donor. They involve no deprivation of use and enjoyment. There can be, with respect to them, no assumption that tbe donor would not voluntarily part bis property, since in tbe nature of things it must then pass from him to others selected by himself according to tbe dictates of bis affections, or appointed by tbe law of descents and distributions; and in either case without consideration moving to him. It is not out of tbe usual course of things, but in accordance with tbe exigencies of mortality, tbat tbe property should cease to be bis, and should become tbat of another. And tbe very considerations which lead to suspicion, which must be removed in transactions inker vivos — friendship, trust and confidence, affection, personal obligation — may, and generally do, justly and properly give direction to testamentary dispositions.”

The authorities are also more'insistent'against allowing this presumption to prevail when the confidential agent is the son of the testator. Berberet v. Berberet, 52 A. S. R. (Mo.), 640; Eastis v. Montgomery, 93 Ala., 299; Dale’s Appeal, 57 Conn., 144; Huffman v. Groves, 245 Ill., 445; Bundy v. McKnight, 48 Ind., 516; Marshall v. Hanby, 115 Iowa, 322; Furlong v. Carraher, 108 Iowa, 493; In re Smith’s Will, 95 N. Y., 522; In re Hurlburt, 48 N. Y. App. Div., 91; Friend’s Estate, 198 Pa. St., 363; Hook’s Estate, 207 Pa. St., 207; In re Mason’s Will, 82 Vt., 165; 40 Cyc., 1152.

Mr. Underhill, vol. 1, sec. 145, says of this presumption: “If the testator is well advanced in years and has grown-up sons, it is almost certain that he has, prior to his death, intrusted the management of at least a portion of his estate to one of them, who, by reason of the power and control over the property of the testator thus delegated to him, occupies a position of marked trust. Can it be said that a son who, under such circumstances, received a large portion of his father’s estate to the exclusion of another son, who has never manifested any ability or even inclination to care for the interests of his father, is called upon to show that he has not procured his legacy by fraud and undue influence? Or is the legal adviser of the testator, by whose industry, experience and skill his property has perhaps been protected from the assaults of those who by fraud and trickery have endeavored to deprive him of it, called upon to rebut a presumption of undue influence because, prompted by gratitude and appreciation of his efforts, the testator has, out of a large estate, left him a small legacy? Such is not the rule that commends itself to the sense and reason of mankind.”

We would be slow to admit that the presumption of fraud or undue influence prevails in a case like this where the testator was old and blind and unable to attend to his business and when the son, in the performance of a natural and moral duty, remained with him and looked after his business as he ought to have done, but it is not necessary for us to pass upon the question, because at most it could only raise a presumption of fact which would entitle the caveators to have the question submitted to the jury, and they asked his Honor to charge the jury that it would be decisive of the issue.

In Furniture Co. v. Express Co., 144 N. C., 644, the Court said: “It may be well to note here that in using the terms prima facie and presumptive, the terms do not import that the burden of the issue is changed, but that on the facts indicated the plaintiff is entitled to have his cause submitted to the jury under a proper .charge as to its existence or nonexistence and of tbe effect of any presumption wbicb may attach,” and in Currie v. R. R., 156 N. C., 424, “When the presumption is treated as one of fact tbe rule usually obtains that tbe evidence must be submitted to tbe jury and tbey must pass on its sufficiency.”

Tbe authorities in support of tbis position are collected in tbis last case, and in S. v. Wilkerson, 164 N. C., 436.

If tbe prayer bad been given as requested, nothing would have been left for tbe determination of tbe jury and it would have amounted to a direction by tbe judge to answer tbe issue in favor of tbe caveators, when, if tbe position of the caveators could be sustained, that a presumption of undue influence arose, tbis presumption was only evidence of tbe fact wbicb would have to be passed on by the jury. We therefore conclude that there was no error in refusing tbe prayer for instruction.

Tbe criticism upon tbe statement in tbe charge that tbe undue influence must be exercised at tbe time of tbe execution of tbe will would be well founded if it did not appear from tbe context that what his Honor meant was that it must be operative at that time, and it must have been so understood by tbe jury.

We have carefully considered tbe exceptions and find

No error.  