Opinion by
Mb. Justice Fell,The first and second assignments have not been pressed, and as regards the third and fourth we are asked to consider not merely technical errors, but whether under all the testimony the case should have been withdrawn from the jury by peremptory instruction to find for the defendant. The issue was devisavit vel non. It was conceded that the testatrix was of sound and disposing mind, and was possessed of testamentary capacity. The contest was confined to the question of the use of undue influence in procuring the execution of the will or codicil.
At a former trial of the same issue it appeared that the plaintiff, who takes one half of the estate under the will and is the sole beneficiary under the codicil, stood in a relation of trust and confidence to the testatrix, who was a woman eighty-eight years of age; that she had assumed the control of the house and servants of the testatrix, and had expressed her intention to have her property after her death; that she had procured her own attorney to draft the will, and that he had acted entirely upon her suggestions; that at the time of the execution of the will it was not read to the testatrix, and that she in no way indicated that she knew that it was a will, and that the subscribing witnesses did not know that it was a will. In view *199of this and other testimony presented at the trial it was held, in reversing the judgment, that the presumption of the exercise of undue influence had not been rebutted, and that a verdict against the plaintiff should have been directed.
At the second trial a different state of facts was presented by the testimony. That as to the age and infirmities of the testatrix, and as to the confidential relations existing between her and the plaintiff, was the same; but there was no proof of declarations of the plaintiff indicating a purpose on her part to secure the estate, and there was testimony that before signing the codicil the testatrix read it, and that it was not signed in the presence of the plaintiff, and that no representations were made or inducements presented by any one. At the former trial it seems to have been assumed that Mr. Peterson, who wrote the will, was the plaintiff’s attorney. The testimony at the second trial relating to his employment was that the testatrix told the plaintiff she was going to make her will; that the plaintiff procured paper, and being at the time unable to write, called on a boarder in the house to write for her. At her direction he wrote down what the testatrix had told her. Neither she nor the testatrix had ever had occasion to consult an attorney. On inquiry of a friend Mr. Peterson was recommended to the plaintiff, and after communicating this to the testatrix she called on Mr. Peterson by her direction and gave him the memorandum mentioned, from which he wrote the will. He afterward prepared the codicil on information received from the plaintiff and sent it to the testatrix by a notary, in whose presence it was executed. This testimony would indicate, that in securing the services of an attorney the plaintiff was acting for the testatrix and not for herself. Whatever doubt as to its correctness was raised by the cross-examination it was for the jury; the court could not have said that the will was drawn by the plaintiff’s attorney. The contestant was a beneficiary under a former will; the plaintiff was the first cousin of the testatrix, and her only surviving relative, and in the case of intestacy would have taken her whole estate. As against her the same presumption does not arise as in the case of one who is a stranger to the blood: Caldwell v. Anderson, 104 Pa. 199. We think the case was necessarily for the jury.
The judgment is affirmed.