On appeal by Snedeker, contestant, to the circuit court, from so much of the order or sentence of the county court, as admitted to probate, as the last will and tеstament of Lula L. Conner, deceased, a paper writing, dated January 23, 1909, the jury upon the issue of devisavit vel non, found, that neither the writing, dated December 9, 1908, also involved therein, nor said writing of January 23, 1909, offered for probate, taken separately or together, constituted the true last will and testament of said decedent.
On. this verdict the court below denied the motion of Rulong, proponent, and devisee, to enter judgment, non obstante vere-dicto, that said paper -writing, dated January 23, 1909, was the true and last will and testament of said decedent; and also his motioi\to set aside the verdict of the jury and grant him a new trial. And on November- 6, 1909, the court pronounced the
To this judgment, on the petition of Kulong, a writ of error was awarded, bringing the case here for review, for the errors assigned.
A preliminary point presented in the briefs, is that as no one who desired it had offered the alleged wills for probate in the county court, and аs the proceedings there had been initiated by Snedeker, contestant, that court should not have proceeded, over the objections of Bulong, to try the contest begun by Snedeker. Section 26, chapter 77, Code 1906, does not authorize the institution of such a contest, before the will has been offered for probate by some one desiring the рrobate thereof. But Bulong did not stand on his objection, either in the county court, or on appeal, in the circuit court. After his objection had been overruled by the county сourt, he took the affirmative, and offered evidence to prove the due execution of said paper writings, resulting in the order and sentence of that court, denying the рrobate of the paper of December 9, 1908, but’ admitting to probate the paper of January 23, 1909, as the true last will and testament of said testatrix.
In the circuit court, on aрpeal, no question was presented by proponent as to the regularity of the proceedings in the county court. In the circuit court the proceedings were altоgether regular, resulting in the judgment now under review. There the proponent, without again questioning the regularity of the proceedings in the county court, again took the affirmative оf establishing the due and proper executions of the testamentary papers, and there, after the verdict, moved the court, notwithstanding the verdict, to pronounce judgmеnt that the said paper writing of January 23, 1909, is the true and last will and testament of said Lula L. Conner. We are of opinion, therefore, that Bulong must be regarded as having waived all objeсtions to the irregularity of the proceedings in the county court.
But three other points of error are presented: First, the giving of contestant’s instructions to the jury, numbers one,,. six, seven, eight and nine; second, overruling proponent’s motion for
First, as to the instructions. It is not claimеd that these instructions do not state correct legal propositions. The contention is that there was no evidence justifying them, and that for this reason they were misleadnig and ought not to have been given. Without quoting, all of them, except the eighth, were intended to cover contestant’s theory of undue influence, controlling the mind of the testatrix. Numbers one, seven and nine seem to have been approved, as correct legal propositions, in McMechen v. McMechen,
But did the evidence warrant contestant’s several instructions given on the theory of incompetency and undue influence? We think it did. By so saying we must not be understood as indicating the opinion that the evidence justifiеd the verdict of the jury on these theories. What we mean to say is, that the evidence tended in an appreciable degree to establish these theories of the cаse, justifying the giving of the instructions, and that no error was committed in doing so. As was said by Judge PoeeeNbarger, in State v. Clifford,
We have carefully examined the evidence on the questions of incompetency, and undue influence, and while we find evidencе ■of an appreciable degree justifying the giving of the instructions on these theories, it is very doubtful whether the verdict could be justified on these theories. Indeed our doubt, based on numеrous prior decisions, amounts to substantial conviction that the verdict and judgment, if they stood alone on these theories, and the evidence thereon, would have to be reversed. It is not only proven, but admitted, that the testatrix was sick and weak physi-calty, at the dates of the alleged execution of these papers; that Rulong, who practiсed the profession of “Masseur,” — treatment ■of the body, as described by him, by the process of manipulation, concussion, kneading and rubbing, and who had been employed, professionally, by Mrs. Conner’s husband, before his death, and afterwards by her; had visited her nearly every day, sometimes remaining with here for long periods, and in this wajq and by befriending her in other ways, had gained grеat favor with, and influence over her, and had many opportunities to unduly influence Mrs. Conner; and had gone to the extent of advising her to make a will. Other facts proven arousе grave suspicions of improper and undue influence, by Rulong; but our decisions say , that, opportunity, suspicion, physical and even mental weakness, attachment or love fоr, and desire to gratify the'wishes of a beneficiary, axe not enough to overthrow a will, if the free agency of the testator, at the time of the execution of his will, be not overcome by undue influence; and that such undue influence must have amounted to such force or coercion as to overcome such, free agency. Woodville v. Woodville,
But may the verdict and judgment stand on the other theory
Affirmed.