In this case a motion has been lodged asking that the petition for rehearing be transferred to the Supreme Court proper, and that oral argument be granted thereon. This motion is respectfully referred to the court for its determination without recommendation, but in view of the fact that the court may see proper to grant such motion, I shall not in this report discuss the various propositions raised on the petition for rehearing seriatim, but will only advert briefly to the principal contentions made, viz., that there is no sufficient evidence in the record of a fiduciary relation between Walter D. Myers and the deceased, and that there is no sufficient evidence of undue influence exerted by Walter D. Myers *Page 196 upon the deceased which induced or influenced the deceased to dispose of his property in the manner he did by the will herein questioned.
This case was argued orally before this divison of the Commission, an extension of time beyond that usually allowed for oral argument being granted in view of the importance of the questions involved and the value of the estate. After this extended oral argument the members of this division were unanimously of the opinion that Walter D. Myers did stand in a relation of trust and confidence to the decedent, and that the facts and circumstances in evidence attending the preparation, execution, and retention of the will by Walter D. Myers were amply sufficient to throw a strong suspicion upon his actions so as to place upon him the burden of proof of showing that the will executed under those circumstances expressed the free and deliberate will and intention of the testator.
In the instant opinion, prepared by RAY, C., the facts and circumstances in evidence attending the preparation, execution, and retention of the will by Walter D. Myers are set forth with considerable particularity, and it is unnecessary in this report to restate the facts as recited in the opinion. It may be observed, however, that before going to the hospital testator had several times stated that it was his intention not to make a will, but to let his property descend under the laws of the state. Within a short time after his reception at the hospital Walter D. Myers began to have private and confidential conversations with decedent, eventuating in the preparation of the will by his own attorney and its execution in duplicate by the decedent. Why it was thought necessary to execute the will in duplicate so that the original and the carbon copy might either or both serve as an original will is not shown by the evidence, but the circumstances in the case lead to a very definite and logical inference as to the purpose in so doing. If the original will had been called for by the testator and either destroyed or altered, its duplicate could have been probated as an original instrument if no subsequent will had been produced. The reasonableness of this inference is demonstrated by the fact that the attesting witnesses, both bankers, did not remember on the trial that the will was executed in duplicate. In Rood on Wills (2nd Ed.) sec. 190, it is stated:
"Undue influence is not to be inferred from the scrivener being procured by the principal legatee, though the testator lived with him and was old and sick. If the testator was well and strong, there arises no presumption of undue influence or fraud from the fact that the person who drew it up was favored by it. But if the testator was weak and the scrivener benefited, slight circumstances in addition may suffice to cast the burden upon him to show that there was no fraud practiced and no undue influence exercised."
In Howell v. Taylor, 50 N.J. Eq. 428, 26 A. 566, it appeared that one of the principal legatees personally gave instructions to the draftsman of the will and paid him for his services; that two of the legatees were present at the execution of the document; that the will subsequently came from their possession. The court stated that these circumstances are sufficient to excite the judicial mind to suspicious scrutiny, and naturally call upon those who participated in the production of the will and who profited by it to satisfy the court that the document was not the product of their unlawful management.
In the early English case of Barry v. Butlin, 1 Curt. 637, Baron Parke announced in simple and precise language the rule which has since been universally recognized in this character of cases, thus:
"If a party writes or prepares a will, under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument in favor of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased."
I think no one can read the record in this case and not be impressed by the fact that it is peculiarly one for the application of this rule. The will was prepared in the home town of Walter D. Myers, at a great distance from the hospital where the testator was then under treatment in what proved to be his last illness; it was prepared without the knowledge or consent of the testator's wife and its existence was never divulged to her until after Walter D. Myers had himself filed the will for probate and employed an attorney to represent him and the widow as joint executors of the will. This wife was at the hospital in constant attendance upon her sick husband, but the utmost degree of secrecy attended the preparation and execution of the will, so that the wife was kept in complete ignorance of its existence; after the execution both copies of the will, either or both of which could be used as originals, were *Page 197 taken by Walter D. Myers to his distant home and locked in his bank vault; after the will was executed Walter D. Myers requested the nurse whenever she called the wife of the testator to his bedside to always notify him, Walter D. Myers, also. At the time of the funeral of the testator, Walter D. Myers denied to the widow any knowledge that a will existed.
I think the opinion prepared by RAY, C., in this case announces the one correct conclusion which can be logically drawn from the facts and circumstances in evidence. I think correct principles of law were announced and applied, and I recommend that the petition, for rehearing be in all things denied.
Further comment or citation of additional authorities is wholly unnecessary. This court has repeatedly announced the rule that the only question for determination on appeal in cases of this kind is whether or not the judgment and findings of the trial court are clearly against the weight of the evidence, and if not, the trial court should be affirmed. Following this rule, the original opinion herein affirmed the trial court, and after a thorough review of this entire record we are firmly of the opinion that the trial court rendered the only proper judgment which could have been rendered under the law and the evidence, and it therefore follows same should be affirmed.