(After stating the foregoing facts.)
The first ground of the amendment to the motion for a new trial assigns error upon the following charge of the court: “ The bur.den of proof in the case is primarily with Edwin S. Davis, who offers the will for probate. If the party offering the will ior probate proves its execution, proves that John W. Johnson was apparently of sound mind, proves that the will was, or paper was, freely and voluntarily executed, then the petitioner has *812carried the burden of proof to that extent, and the burden is cast upon the caveators to meet that prima facie case.” The charge is criticized upon various grounds specifically set forth; but upon a reading of the charge and considering the subject dealt with, it is manifest that there was no material error in the part of the charge here excepted to. In the case of Oxford v. Oxford, 136 Ga. 589 (71 S. E. 883), it was said: “Upon the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case, by showing the factum of the will, and that at the time of its execution the testator apparently had sufficient mental capacity to make it, and, in making it, acted freely and voluntarily. When this is done, the burden of proof shifts to the caveator.” Similar rulings and dicta can be found in numerous decisions. See Eedfearn on Wills and Administration of Estates, 217, notes to § 122. The limiting or qualifying expression “to that extent,” employed in this excerpt from the charge, is excepted to and criticised on the ground that it “ implied to the jury that proof that the testator was apparently of sound mind, proof of the execution of the paper, and proof that it was freely and voluntarily executed, was not all that the propounder was required to submit m order to carry the burden imposed upon him by law.” The expression, “ to that extent,” might well have been omitted, but we do not think that it had the force and effect attributed to it by movant. The court merely suggested the essential issues as to which the burden at first rested upon the propounder, and did not state (as there was no contest in regard to these) certain formalities to be observed in the execution of the will, and, after stating the essential issues, charged the jury that if the party' offering the will carries the burden as to those essential issues, or, in the words of the charge, “to that extent,” then the burden is cast upon the caveators, etc. But at any rate, whether we have properly here ascribed to the expression objected to the meaning which the judge who employed it intended it to have, we do not see how it could have had any injurious effect, in view of the entire charge.
In another ground of the motion for a new trial error is assigned upon the following charge of the court: “What the law requires as a test for the making of a will is that a man shall *813have a decided and rational desire as to the disposition of his property ; or, as it has been expressed in one of the cases, a man must know the nature of a will, that is, that it is the expression of a man’s wishes as to the disposition of his property to take effect after the testator’s death; he must further have memory enough to remember generally the property to be disposed of by his will; he must further have memory enough to call to mind those who are related to him by ties either of blood or affection, and then, lastly, he must be able to conceive and to express intelligently a plan, or an intelligible plan for the disposition of his property. If a man possesses these qualifications,-then he has the capacity to make a will. If he does not possess all of these qualifications, then he does not have the capacity to make a will. Applying that principle to this case, if you find that John W. Johnson had sufficient mental capacity to understand that a will was the expression of his desire as to how his property should be disposed of after he was dead, and that John W. Johnson at the time of the making of his will remembered those who were connected or related to him by ties of blood or affection, if he was able, had memory sufficient to call them into mind, if he desired to do so, and if he had memory sufficient to call to mind generally the property which he desired to dispose of, and he had capacity enough to conceive an intelligible plan for the disposition of his property, why, then he would have sufficient capacity to make a will. If, on the other hand, he did not understand the nature of a will, if his condition was such that he was not able to call to mind those persons who were related to him by ties either of blood or affection, if he did not have sufficient memory to call to mind the property which he desired to dispose of by his will, if he was not able to form a conception of an intelligent plan for the distribution of his property, then he would not have that capacity which the law requires for the making of a will.” The test laid down here of testamentary capacity is in accordance with the construction and interpretation that have been made in various decisions rendered by this court of section 3842 of the Civil Code, which relates to the amount of mental capacity necessary to enable one to make a will. See, under the code section referred to, the citation of authorities and the case of Slaughter v. Heath, 127 Ga. 747 (57 S. E. 69, 27 L. R. A. (N. S.) 1). In that case it was said: “A person has *814testamentary capacity who understands the nature of a testament or will, viz., that it is a disposition of property to take effect after death, and who is capable of remembering generally the property subject to disposition and the persons related to him by the ties of blood and of affection, and also of conceiving and expressing by words, written or spoken, or by signs, or by both, any intelligible scheme of disposition. If the testator has sufficient intellect to enable him to have a decided and rational desire as to the disposition of his property, this will suffice.” The language in which the rule for testing testamentary capacity has been stated varies, -but the rule stated -in the excerpt which we have quoted from the Slaughter case is the usual one, and based upon the construction of the code section last cited. See the discussion of this subject in the first division of the opinion in that ease.
It was conceded by the propounder in open court on the trial of the case that one clause of the will, to wit, “I direct the executor of this my will and testament to dispose of my other personal property in accordance with instructions that I shall hereafter give him personally,” was of no legal force or effect. And movant contends that the failure of the court to instruct the jury that this paragraph of the will was of no legal force or effect whatever and had no legal force or effect as to the disposition of any part of the property of the testator, nor upon any of the remaining portions of the will, was error in that such failure to so charge authorized the jury to find that if such paragraph was inserted without the direction of said John W. Johnson and said paper was signed by the testator- without knowledge on his part that it contained this paragraph, the paper offered for probate would not express the will and desire of the testator as to a disposition of his property. In the course of his instructions to the jury the court charged generally that they were ■ to “ determine, from a consideration of all the evidence, whether the preponderance of evidence shows that the paper offered for probate is the will or is not the will of John W. Johnson. . . If you find that John W. Johnson had the capacity to make this will, and that it was freely and voluntarily made, that is, there was no restraint upon his liberty of action, then the form of your'verdict would he, ‘We, the jtiry, find that the paper offered for probate is the will of John W. Johnson.’ If, on the other hand, you *815find he did not have the capacity to make a will, under the rules I have given you, or that his liberty of action was interfered with, and that some one else’s wishes or desires were imposed and substituted for his wish or desire, or either'of them, then the form of your verdict would be, ‘We, the jury, find that the paper offered for probate is not the will of John W. Johnson.’ So you will find whether the paper is or is not the will of John W. Johnson.” If counsel for the propounder had desired that the court should especially mention that clause of the will conceded to be of no force and should instruct the jury as to the effect of this upon the entire will, they should have made a request to that effect in writing.
The rulings made in headnotes 4, 5, and 6 require no elaboration.
Complaint is made of the following portions of the court’s charge: (2) “The issue in this case, as you will see, is made by the contentions of the caveators, that John W. Johnson did not, have capacity to make a will, and that the paper was not freely and voluntarily made, or, I believe, as expressed in the caveat, that there was a want of perfect liberty of action.” (3) “Now, a man, to make a will, must not only have capacity to make a will, but he must have perfect liberty of action in making that will; that is, there must be no undue influence exercised upon the testator, the man making the will, the expression of a man’s desire as to the disposition of his property after his death; and.anything that prevents this paper from being the expression of his 'desire, of John W. Johnson’s desire, or that substitutes some one else’s will or imposes that upon John W. Johnson, would invalidate the will for the lack of entire freedom on his part.” (4) “Undue influence is any influence brought to bear upon the testator, that is, John W. Johnson in this case, which prevents the will from being his own free, voluntary act; anything that substitutes the will of desire of some other person for the will or desire of John W. Johnson.” (5) “If you find that John W. Johnson had the capacity to make this will, and that it was freely .and voluntarily made, that is, there was no restraint upon his liberty of action, then the form of your verdict would be, ‘ We, the jury find that the paper offered for probate is the will of John W. Johnson.’ If, on the other hand, you find that he did not have *816the capacity to make a will, under the rules I have given you, or that his liberty of action was interfered with, and that some one else’s wishes or desires were imposed and substituted for his wish or desire, or either of them, then the form of your verdict would be, cWe, the jurjq find that the paper offered for probate is not the will of John W. Johnson.’ So you will find whether the paper is or is not the will of John W. Johnson.” (10) “Now, gentlemen, any one can make a will if they are not laboring under some disability provided by law. That disability provided by law may arise from a want of capacity, or a lack of entire freedom of action in making the will.” (13) “If he has perfect control over the statement of his wishes, and the statement of his wishes as expressed in this paper represent the free and voluntary expression of John W. Johnson’s desire, then he is not under any undue control; if that expresses the wish or desire of some other person and is not the wish and desire of John 'W.#Johnson, then that would not be such uncontrolled or free and voluntary act as would be a will.”
Error is assigned upon these excerpts from the charge in grounds 2, 3, 4, 5, 10, and 13 of the motion for new trial, respectively. The charges quoted laid down with substantial correctness the law upon the subject and issues dealt with there, and it is unnecessary to discuss all of the criticisms upon the portions of the charge last' set forth. But there is one exception made to each one of the excerpts from the charge which requires consideration. It is based upon the contention urged by the plaintiff in error that there was no evidence authorizing the charge upon the subject of undue influence. The grounds of the caveat setting up undue influence, tested by the rules of good pleading, do not clearly and distinctly set forth acts of duress upon the part of either of the two chief beneficiaries under the will; but there was manifestly an attempt to plead undue influence. If the vagueness and indefiniteness of this ground of the caveat setting up un'due influence had been attacked by special demurrer pointing out its insufficiency in this regard, no doubt the special demurrer 'wbuld have been sustained in case the caveators had failed or refused to offer appropriate amendments to cure the defects pointed ‘out. But' this ground of the caveat was not demurred to specially, and it remained a part of the caveat, and the caveators had the *817right to introduce evidence to support that ground of the objection to the probate of the will. The writer of this opinion, after a careful examination of the record, has reached the conclusion that there was no sufficient evidence of undue influence exercised upon the testator to authorize instructions to the jury upon that subject; but the majority of the court are of the opinion that there was evidence, not only authorizing the charge, but sufficient to authorize the verdict of the jury upon that issue. The views of the majority may substantially be stated as follows:
Fraud and undue influence can rarely be established by direct proof. Accordingly, both may be proved by indirect evidence and by proof of' facts from which they may be inferred. The presumption is strong against a party preparing a will who takes a benefit under it, and although it will not be declared void on that account, strong evidence of intention in such a case will be required. Beall v. Mann, 5 Ga. 456. The presumption is strong against an act done by the agency of the party to be benefited, especially when the capacity of the testator at the time the will was executed was in any degree doubtful. Under such circumstances, strong proof of intention is required. Harvey v. Anderson, 12 Ga. 69. If a scrivener is a large beneficiary under the will, greater proof will be necessary to show the knowledge of its contents by the testator. Civil Code (1910), § 3850. “When a will is prepared by one who takes a large benefit under it, it can not be set up without strong proof that the testator understood its provisions and assented to them.” Adair v. Adair, 30 Ga. 102.
The draftsman of the will took a substantial legacy thereunder. The will disposed of the large estate of the testator, to strangers, including the scrivener, and practically to the exclusion of the blood relatives of the testator. The draftsman of the will was named as executor thereof. It appears from the testimony of the propounder, that confidential relations had long existed between him and testator, that the testator was in the habit of confiding to him intimate, personal matters, that the testator frequently sought his advice in business matters, that the propounder wrote important documents for the testator, and that the two were classmates at college, becoming fast friends. It appears that close personal relations existed between them from that time until the testator’s death. The will was executed on July 7, 1921. The *818testator died one month later. Testator was stricken with diabetes early in 1921, and was in the last stages thereof when he made his will. He was confined to his bed, with one leg swollen to three times its natural size. He suffered great and constant pain. Tt was necessary to administer three grains of morphine to him daily to alleviate his pain. About the time the will was prepared Mrs. Stokes visited the testator. The propounder asked her to vacate the room. He was closeted with testator for some time. When the propounder departed, testator told this lady that they were trying to get him to make a will. Shortly before the execution of- the will one of the chief legatees thereunder visited testator. He declined to see her on the first visit. She returned the next day, begged, to see him, and was permitted to do so. What passed between them is not disclosed by the record. On the day the will was executed, and between the time of its preparation and execution, propounder claims that the testator gave him his own note for $10,000, which testator held against him for money borrowed, and $1500 in liberty bonds. The propounder did not disclose these gifts until -fter the death of testator. In the will testator bequeathed to propounder the notes of one Ferguson for $2500. There was evidence that at the date of the .execution of the will the testator was of unsound mind. Two of the subscribing witnesses did not testify that testator was of sound mind when his will was executed. The draftsman, when preparing the will, asked Ben Bobinson, who afterwards attested the will as a witness, to give the boundaries of the property devised under it. At that time the testator did not have anything to say about it. The draftsman did not ask the testator for the boundaries. He made this request of Bobinson in the testator’s presence. After the will was executed, Bobinson, a legatee, told the draftsman that he felt like he had not gotten a square deal, because the principal legatee under the will was no relation of testator, that he had stayed with the Johnson family, had worked, and made part of the property. He helped to pay the insurance premium which bought 200 acres of the land. The draftsman then stated he did not know these facts; and that had he known them, he would have advised Johnson to give him the home place, and believed testator would have done so. Hnder these circumstances the issue of undue in*819fluence was involved under the proof, and the court did not err in submitting that issue to be passed upon by the jury.
“ ‘ TJpon the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case, by showing the factum of the will, and that at the time of its execution the testator apparently had sufficient mental capacity to make it, and, in making it, acted freely and voluntarily. When this is done, the burden of proofs shifts to the caveator.'" Oxford v. Oxford, supra. “ In the probate of a will, the burden of proof is upon the propounder to show all the facts necessary to make a good will, and this includes not only the fact of execution, but that the will is the free act of a man competent, under the law, to make a will. The heirs of a deceased person take his estate by virtue of the statute of distributions, and their rights can only be divested by proof that the deceased died leaving a will by him freely executed according to the forms of law, whilst he was of sound mind." Evans v. Arnold, 52 Ga. 169.
It was for the jury to say whether the propounder had shifted this burden of showing that this instrument was freely and voluntarily executed by the testator, and it was for the jury to say whether under the evidence the ground of caveat alleging that the will was procured by duress had been sustained. It follows that the court did not err in giving to the jury instructions appropriate to this ground of caveat; and we do not think that a new trial should be granted because there was no evidence to authorize the court to submit this issue to the jury. Smith v. Smith, 75 Ga, 477; Moor v. Spier, 80 Ala. 129; Bancroft v. Otis, 91 Ala. 279 (8 So. 286, 24 Am. St. R. 904).
Judgment affirmed.
All the Justices concur, except