51 So. 130
Miss.
1909
WniTKiBLi), O. J.,

delivered the opinion of the court.

This case is here for the second time. It is a contest over a ■will, and on both trials in the court below the jury have found for the contestants, and the argument now made is to secure a reversal because the evidence is not sufficient to show that undue influence was used in the procurement of this will.

In the case of Blackman v. Edsall, 17 Colo. 429, 68 Pac. 792, a recent well-considered case, the court said: “The chief *298complaint and contention of the proponent is that the evidence-presented, and upon which the jury based its verdict sustaining-its charge of undue influence, was insufficient, by reason of its lacking that affirmative and positive character which is claimed, to be necessary. It follows, from the very nature of the thing,, that evidence to show undue influence must be largely, in effect,, circumstantial. It is an intangible thing, which only in the-rarest instances is susceptible of what may be termed direct or positive proof. The difficulty is also enhanced by the fact, universally recognized, that he who seeks to use undue influence does so in privacy. He seldom uses brute force or open threats-to terrorize his intended victim, and if he does he is careful that no witnesses are about to take note of and testify to the-fact. He observes, too, the same precautions if he seeks by cajolery, flattery, or other methods to obtain power and control over the will of another, and direct it improperly to the accomplishment of the purpose which he desires. Subscribing witnesses are called to attest the execution of wills, and testify as to the testamentary capacity of the testator, and the circumstances attending the immediate execution of the instrument;-, but they are not called upon to- testify as to the antecedent agencies by which the execution of the paper was secured, even-if they had any knowledge of them, which 'they seldom have. Only general rules concerning the amount and character of evidence required to establish undue influence in the execution of a will can be laid down. As to what is sufficient must depend upon the facts and circumstances of each particular case. These • general rules have been stated and restated in many hundreds of different cases in the courts of every jurisdiction-considered authority in this country. Different language is used by the different courts; but one main, underlying prin•ciple, whatever the phraseology, is found in all, and that is-that the evidence required to establish it need not be — indeed, cannot be — of that direct, affirmative, and positive character *299wliicb is required to establish a tangible fact. The only positive and affirmative proof required is of facts and circumstances from wbicb the undue influence may be reasonably inferred.”

In another very recent case, Meier v. Buchter, 197 Mo. 68, 94 S. W. 883, 6 L. R. A. (N. S.) 202, the-facts were, there was an old man in failing health cherishing affection for all his children, especially an afflicted daughter. He lived, however, with another daughter, Mrs. Buchter. It appears that from the time that Mrs. Buchter entered the household the-testator cooled in his regard for his afflicted daughter, and this daughter was finally sent away. There was a prior will, which had disappeared. There was no direct proof of undue influence exerted especially upon the making of the will. The-whole case is strikingly like the case at' bar in many of its important facts. The trial court gave a peremptory instruction-in favor of the will; but the supreme court held that the mere fact of the will being unnatural in its provisions, coupled with other, though slight, evidences of undue influence, was suffi-ciént to take the case to the jury. The court said: “The-courts, too, recognize the fact that testamentary disposition often comes only in the evening of life, and that idiosyncrasies,, foolish words, odd notions, and acts ‘sounding to folly’ in-aged people may be so combed together from far and near, and scheduled and paraded, as somewhat to show unsoundness of mind, and yet, fairly considered in the light of everyday experience, do not establish that infirmity. However, when all this has been said, it still remains that, as long as kindness is esteemed a virtue by civilized people, their laws can neither be interpreted as .essentially unkind, nor are they of such a sour complexion and so-deadly cold in their process as to eliminate all human warmth of sentiment and all moral duty. Accordingly it is the sole doctrine of the law that, while a testator has the abstract power of disposing of his estate by will according" to his settled convictions or caprice, yet a will, producing re-*300suits as those now under judicial scrutiny, is tbe object of sharp solicitude and jealousy in the courts. When one of old by subtlety took from his brother his father’s blessing, and the wronged one was told thereof by his father, it is said: ‘And when Esau heard the word of his father, he cried with a great and exceeding bitter cry, and said unto his father, “Bless me, even me, also, oh! my father!”’ Peradventure the law may utter for this child a cry for a blessing which her dumb lips may not utter. We think it does, because such a will, when there is other substantial evidence of undue influence and testamentary •capacity, calls for explanation, and such unnatural provisions are submitted to the jury as evidence tending to show lack of testamentary capacity where that is in issue, and may be considered by the jury with all other facts and circumstances in the case upon such issue; that is to say, an unnatural disposition of property, standing alone, may not avoid a will, but the results of such unhappy distribution may be tempered and toned down, possibly to avoidance, by allowing it to be weighed by the triers of fact, along with other facts tending to show undue influence or testamentary incapacity.”

In the case of King v. Rowan, 82 Miss. 1, 34 South. 325, this court declared that where the facts in a case are voluminous, and the different facts testified to vary greatly in the statement of them by the witnesses, and even when no member of the court would find as the jury did, the court should yet not exercise the delicate and difficult function of declaring the verdict *of the jury manifestly wrong, and that such a declaration should be made only in those rare cases where the evidence shows it to be wrong, most convincingly and indubitably. See, also, the case of Walls v. Walls, 99 S. W. 969, 30 Ky. Law Rep. 948, where the rule in cases of undue influence is admirably stated.

In 1 Bedfield on Wills, 516, it is said, with respect to the unnatural provisions in a will: “Where the will is unreason*301able in its provisions, and inconsistent with the duties of testator, with reference to his property and family, * * * this, of itself will impose upon those claiming under the instrument the necessity of giving some reasonable explanation of the unnatural character of the will.”

Under these well-settled rules, we cannot '.possibly say that the verdict in this case is manifestly wrong. Two juries, under proper instructions from the court, have found for the contestants, and the judgment is affirmed.