On April 1, 1939, O.O. O'Bannon, a bachelor, about thirty-seven years of age, executed a will, devising his property which did not exceed $25,000 in value, to his fiancee, Miss Julia Henrich. O'Bannon died on the 6th day of October, 1939, and the will was probated in common form on the 9th day thereof. O'Bannon was survived by six brothers, one sister and four children of a deceased brother, who, on December 1, 1939, contested the validity of this will by filing a petition in the court below under Section 1609 of the Code, alleging that: (1) At the time of the execution of the will, O'Bannon was mentally incapacitated therefor; and (2) "he was under undue influence with reference to the same to the extent that said alleged will is not the will of the reputed testator but that of another against his wish." Thereafter, a jury was empaneled to try the issue devisavit vel non presented by this petition. The proponent rested her case after proving that the will was duly probated. Whereupon, evidence was introduced by the contestants in support of their claim that the testator was without mental capacity to make the will, but they introduced no evidence whatever that any influence at all had been brought to bear on the testator in the making of the will except that two relations existed between the proponent and O'Bannon, which they say were confidential and from which an inference should be drawn that O'Bannon was unduly influenced by her in the making of the will. The issue of mental capacity *Page 821 was submitted to the jury, which decided against the contestants and in favor of the proponent, and we find no reversible error in the rulings of the court below on that issue. To respond to the appellants' contentions relative thereto would require the setting out of the evidence at length and a discussion of well-settled legal propositions, and consequently would serve no good purpose. The court below, by an instruction, excluded from the jury the consideration of the contestants' claim that the will was procured by undue influence on the testator.
The burden was on the proponent of proving the validity of this will, i.e., that the testator had the mental capacity to make it, and that he was not procured to make it by the pressure of undue influence on him. This burden she met by the introduction of evidence that the will "had been duly admitted to probate." Section 1611, Code of 1930. It then devolved on the contestants to introduce evidence in support of their two contentions affecting the validity of the will hereinbefore set forth. No evidence appears disclosing that O'Bannon was under any obligation, legal or otherwise, to devise his property to his brothers and sister, he therefore had the absolute right to devise his property to whomsoever he wished. The jury having found that he was of sound and disposing mind and memory, his will must be given effect unless it appears from the evidence that it does not express his real purpose and intent, but on the contrary that he was caused to make it by an influence exercised over him by another which virtually destroyed his free agency in the making of the will. The record is barren of any direct evidence that any influence whatever was exercised over him by anyone in this connection. No circumstances appear from which an inference of such influence can be drawn unless the relations between O'Bannon and the beneficiary in the will were of such a confidential nature that, when viewed in the light of the fact that without the will O'Bannon's property would have gone to his heirs-at-law, an inference that she unduly influenced him to *Page 822 make it is justified. Two separate and distinct such relations are here claimed: (1) That of guardian and ward, or rather a relation so analogous thereto as to be governed here by the law thereof; and (2) that existing between a man and the woman whom he is engaged to marry.
In June, 1938, the testator had become so habituated to the use of intoxicating liquor that the chancery court appointed its clerk as the guardian of his estate, and P.C. Hemphill as the guardian of his person. Both of these guardianships were discharged by the chancellor on March 29, 1939. The beneficiary in this will, which was executed on April 1, 1939, was this chancery clerk's deputy on and several years prior to March 29, 1939, and continued thereafter so to be until this case was tried in the court below. Acting as guardian of the person or estate of an habitual drunkard is not one of the ex officio duties of a clerk of the chancery court but devolves upon him when but not unless he is appointed as such by a decree of that court, and therefore is not within the ex officio powers vested in a deputy chancery clerk by Section 747, Code of 1930, and there is no evidence that the beneficiary in this will did in fact perform any of the duties with which this guardianship charged the chancery clerk. The fact that she was the chancery clerk's deputy during the period this guardianship existed may therefore be dismissed from further consideration in this connection.
The testator and the beneficiary became affianced several years before the will was made and continued so to be until the testator's death. While they lived eighteen or twenty miles apart, the testator visited her frequently and their affection for each other clearly appears. No other relation between them of any character whatever than this is in any way remotely indicated by the record. Evidence disclosing a case where a man and woman are engaged to be married may also disclose that one of them has a dominating influence over the other, but this record is barren of any such evidence, and we are unwilling to hold that an inference may arise merely from the existence *Page 823 of the relationship itself that the woman has a dominating influence over the man. This court has never so held, and an examination of the few cases dealing therewith will disclose that the mere relationship itself does not justify the drawing of any such inference. If the evidence disclosed that this beneficiary actually participated in the preparation of this will, or if the character of the devise itself, under the circumstances confronting the testator, could be said to be unreasonable or unnatural, a different question might be presented, on which we express no opinion. As hereinbefore said, the testator was under no obligation to leave his property to his brothers and sister, and we are unable to perceive how it could be said that it was unreasonable for him to leave it to the woman he loved and expected to marry. The evidence as to the execution of this will is that on April 1, 1939, the testator carried it, typewritten and ready for his and the attesting witnesses' signatures, to the residence of the beneficiary's mother, with whom she lived, produced it in the presence of the beneficiary and several others, declared it to be his will, signed it and asked two of the persons present to attest it, which they did, all in the presence of each other. The will when produced by the testator bore a date prior to April 1st, which the beneficiary, in the presence of the testator and others, changed with a typewriter to April 1st. While the evidence does not directly disclose a request from the testator that the beneficiary make this change, it is manifest therefrom that it was made with his knowledge and approval.
There being nothing in the evidence that would have warranted the jury in finding that the testator was influenced in any degree by anyone in making the will, the court below committed no error in withdrawing that issue from its consideration.
Affirmed. *Page 824