The learned judge below was of opinion that there was “ no satisfactory evidence that the testatrix’s mind was impaired to any great extent. . . . There was no issue as to testamentary capacity, and the weight of the contestant’s own testimony is that the testatrix had complete testamentary capacity, and when considered with the indisputable facts shown on the other side as to actual business transactions and the testimony of entirely disinterested persons whose credibility cannot be attacked, the only fair conclusion is that there was full testamentary capacity. That is to say, the testatrix not only *609knew her property and the amount of her income, knew all of her kindred and the objects of her bounty, but she had a clear understanding of the testamentary act itself.” The testimony amounted at most to showing that with physical illness her mind had become somewhat more inert than it had been, and somewhat more susceptible to suggestions and influence, but did not show failure of her mental faculties. There was the usual neighborhood gossip and tattle that she was not competent to transact business, worthless in itself and contradicted in this case by the fact that she did attend personally to nearly all of her important business matters, so far as to keep informed and give orders about them.
The evidence fully sustains the judge’s conclusion that her testamentary capacity was not impaired. And where that is the case, undue influence cannot be established by anything short of clear, direct and convincing evidence that testator’s own mind was controlled and dominated by another’s.
The will was written by a justice of the peace who knew the testatrix, was taken by him to her, approved by her and, after some discussion about witnesses (the squire’s wife not having come as the testatrix had requested) a friend was summoned and the will executed in their presence. Where the circumstances of the making of the will are thus shown a strong presumption arises in its favor. Against this presumption are the facts that the justice copied the will from a form in the handwriting of the beneficiary and that she was present in the room when the will was executed and told the testatrix who was palsied to take her time and write carefully. The form, however, was explained by showing that it was an exact copy except as to names, etc., of the will of testatrix’s former husband from whom she had derived her property, and which she kept by her among her important papers. Thus explained there was little weight in the fact that the copy was in the beneficiary’s handwriting.
Apart from this there was little in the case except the opinions of some of the relatives and friends that the beneficiary was of a domineering disposition, controlled the testatrix, interfered with her affairs, kept other relatives away etc. On the other hand, it appeared without contradiction that the beneficiary was a niece of the testatrix, daughter of a favorite *610sister of the whole blood; that she was invited to live with testatrix, and after her mother’s death was intrusted with household duties and took care of her aunt from that time. And, finally, the testatrix lived for two years and a half after the making of the will, showed it to at least one friend and told why she had made it, and had abundant opportunity to have destroyed or changed it if she had desired.
The learned judge below after a careful review of the whole testimony felt constrained to set aside the verdict, and our examination leads us to the same conclusion.
Judgment affirmed.