I concur in the result and agree with the statements of law set forth in the opinion but cannot say that I view the evidence with the same favor as Mr. Justice Wolfe.
I have read the transcript and have studied the ruling of the trial judge with considerable care. It is evident from the record that this case was tried with considerable patience. The trial court was consistent in its rulings and the trial from the beginning to the end was conducted fairly and impartially. The record is free from reversible error. Because of this and the advantage the trial court has over this court in weighing the testimony and in passing upon the credibility of the witnesses, I feel compelled to concur and sustain the judgment of the trial court.
I cannot say, from having read the record, that I believe *Page 265 as Mr. Justice Wolfe, that the defendant produced a great preponderance of the evidence. True it is, that copy of testimony of defendant's witnesses covers far more pages than that of the plaintiff's, but it is weight of evidence that controls, not mere volume. But for the conclusions of the trial court, I would say I think more of the plaintiff's case than the defendant's in view of all the circumstances. Not having seen the witnesses and had the opportunity to observe them while testifying, I am in doubt as to which of the witnesses deserves most consideration.
Mr. Justice Wolfe states that the fact that Richard, who lived in the same home with Mrs. Thomas, obtained substantially all of her property just a few months before her death and in effect disinherited six other children is the strongest evidence in support of the contention that there was undue influence. I agree with this but do not concur with the following inference that aside from this the evidence of the plaintiff's merely raises a suspicion. A complete picture shows that this aged lady at eighty-two, when her husband's estate was being settled was most insistant that her son, a step-son of the deceased husband, be given the same share as the other children even if it had to come from her interest. From the record I would conclude that up until a year of her death, Mrs. Thomas was determined that no one would influence her to make a will or dispose of her property so as to benefit one child as against another except that for years she had determined that the family home was to pass to her sons, John, Richard and Rosser.
But with Rosser's death conditions apparently changed. Either the son's death or the influence of others changed this old lady's mind. The legal question presented to the court is: Did Mrs. Thomas of her own mind make these deeds or did the influence of some one else take control of her faculties and cause her to act as she otherwise would not have done?
I think courts should accept wills and conveyances made by the extremely aged or severely ill with great caution. *Page 266 It is universally known that serious illness and age wear down both body and mind. Wills and conveyances, generally speaking, should be made before the final turn, the time when it becomes apparent that there is no hope for recovery. In every land and in many families there are some so saturated with greed that they, like vultures, watch the sick and dying and await the opportune time to strike and take everything possible. Greed has no regard for justice or decency. Courts should lend no encouragement to people of such character. It is much better that property be distributed according to statutory law than have the courts give invitation or approval to undue influence and greed.