*463DISSENTING OPINION OF
GALBRAITH, J.I am constrained to withhold- my assent to the judgment of the Court in this cause as well as to the reasoning on which it is based although I agree that the rules of law quoted and cited are in the main correct and well established but the application made of those rules in this case is, in my opinion, clearly erroneous.
It is undoubtedly true, as stated by the majority, that, “In deciding the question whether there is sufficient evidence of undue influence in the making of a will to go to the jury, the evidence must be considered in the light most favorable to the contestants; the proponents must be considered as admitting not only the facts which the contestants’ evidence tends to establish but every inference which a jury might fairly draw from such evidence.” In other words, a motion to direct a verdict, like a demurrer to the evidence, admits not only what the testimony proves, but also every conclusion or inference a jury might fairly or reasonably draw therefrom and in the consideration of such motion the court should take that view of the evidence most favorable to the party against whom it is directed and should deny the motion when reasonable men might fairly differ as to the effect of the facts proved or in the inferences to be drawn from them or when in any view of the evidence the party against whom the motion is directed should prevail.
These principles applied to this case do not justify shading the evidence in favor of the proponents or taking that view of it most favorable to them. For instance, these principles do not warrant the deduction that the son, Charles, was disinherited on account of the Hilo Custom House episode — whatever that was —in 1895, since it is clear that there was a reconciliation between him and his father after that for the latter invited Charles and his family to return to the homestead to reside and they did return there and remained during the greater part of the years 1896, 1891 and 1898. Again in 1897 when the decedent gave each of his children and Miss Mullinger five thousand *464dollars, Charles was included and treated the same as tbe others. Is it not more reasonable to infer that the cause of Charles’ disfavor with the decedent arose subsequent to 1897?' Was it caused by Emma Danford’s dislike for Charles and by undue influence exerted by her over decedent or by some other influence ? Whatever the cause may have been I am not able to say under the evidence that reasonable men would agree in their conclusion or attribute it to the same cause.
The testator died May 2, 1902. The will and codicils admitted to probate as his last will and testament were as follows:
“Know all men by these presents, that I Charles Notley, of Paauilo, in the District of Hamakua, Island of Hawaii, being of sound and disposing mind and memory, do make, publish and declare this my last will and testament, hereby revoking and making null and void all wills by me heretofore made.
“I hereby nominate and appoint Thomas Pain Walker, of Honolulu, Island of Oahu, and Anthony Lidgate of Paauilo, in the Island of Hawaii, to be the Executors and Trustees of this my last will and testament, to serve as such without giving bonds.
“Eirst. I give, devise and bequeath unto Miss Josephine M. Barnard of Laupahoehoe, Island of Hawaii, the sum of One Thousand Dollars.
“Second. I give, devise and bequeath unto my brother John Notley of Edgervare Road, Burnt Oak, London, England, the sum of Eive Hundred Dollars; but in the event of my said brother John dying before me, then I give, devise and bequeath said sum of Five Hundred Dollars to Charlotte Notley, the wife of my said brother John, and in the event of the death of the said Charlotte Notley before me, then I give, devise and bequeath said sum of Eive Hundred Dollars to Ada Baker of Edgervare Road, aforesaid, the granddaughter of my said brother John and his said wife Charlotte Notley.
“Third. I give, devise and bequeath unto John Mullinger of South Lopham, County of Norfolk, England, the sum of Eive Hundred Dollars.
“Fourth. I give, devise and bequeath unto my son David Fvfe Notley and his heirs my homestead lot or dwelling house and premises situate at Paauilo aforesaid, together with all and singular the furniture, crockery, plate, pictures, linen and *465household furniture of every kind as well as all carriages and other vehicles used for pleasure or otherwise, being in and upon, the said building and premises.
“Fifth. I give, devise and bequeath to my wife, Mary EL Notley, and my children William Notley, Maria, the wife of Thomas Hughes, and Lav id Fyfe Notley, and my niece Emma Danford, neé Mullinger, the proceeds in money arising from and out of the Policy of Insurance on my life No. 126095 in the New York Mutual Life Insurance Company, share and share alike.
“Sixth. All the rest, residue and remainder of my estate,, real, personal or mixed, and wherever situate, I give, devise and bequeath unto the said Thomas Bain Walker and Anthony Lid-gate, in trust nevertheless for the uses and purposes herein set forth, that is to say: to pay the rents, issues and profits arising: from and out of my said estate in manner following:
“One-sixth thereof to my wife Mary K. Notley during the-term of her natural life, such payments to be in lieu of her dower right in my estate, and from and after the death of my said wife, the said one-sixth share or part of said income shall be divided among the surviving devisees named in this my will in the shares and proportions hereinafter set forth and limited to each of them.
“One-sixth thereof to my son William during the term of his natural life, and from and after the death of my said son William, then to Melisa, the wife of said William, during the term of her natural life; and from and after the death of the said Melisa the said one-sixth share or part of said income shall be divided among the surviving devisees share and share alike.
“One-sixth thereof unto the children of my son Charles Not-ley Jr., named, John, Victoria, Maria, Lilly and William, share and share 'alike. And I hereby direct my said Trustees not to pay any of said share of the said income unto any of the above named children of my said son Charles Notley Jr. until such time as each of them, being males, shall arrive at the age of twenty-one years, and, being females, shall arrive at the age of eighteen years; and that in the meantime and until the happening of such event as to each of said children, I direct my said Trustees to keep said one-sixth share of said income invested’ in such securities as they or their successors may think proper, and the income, rents, issues or profits thereof shall be divided equally among said children upon the arrival of them at the: *466-age of twenty-one and eighteen years respectively as hereinbe- . fore limited. And in the event of the death of any of said chil-dren before the arriving at the ages aforesaid, or in the event of their death after the arrival at the ages aforesaid, the heirs of --such children shall take the share of the child so dying.
“One-sixth thereof unto my daughter Maria, the wife of ' Thomas Hughes, during the term of her natural life, free from ■ all control or liability of the marital rights of any husband.
“One-sixth thereof to my son David Fyfe Notley, during the -term of his natural life, and
“One-sixth thereof to my niece Emma Danford, neé Mullin-ger, during the term of her natural life free from all control or liability of the marital rights of any husband.
“And from and after the death of all my said children and my said niece Emma Danford, neé Mullinger, I hereby direct my said Trustees or their successors to convey all of my estate -among the heirs-at-law of my said children William, Maria, David Fyfe, and my said niece Emma Danford, neé Mullinger, and the children of my said son Charles Notley, Jr., namely:— ■ John, Victoria, Maria, Lilly and William, share and share alike.
“And I direct, that until the death of all the legatees last named, the income accruing from said trust estate, shall, until such event happen, be paid among the heirs-at-law of all such as may have died before the death of the survivor of said last .named legatees.
“In the event of the death, resignation or any disability of my said Trustees or either of them, I hereby direct the Court Laving jurisdiction of the Probate matters and wherein my will Is probated to appoint a new Trustee or Trustees as the case may be.
“I hereby authorize and empower my said Trustees or their successors to make such changes and alterations in the nature and kind of investments of my estate and vary the same in such manner as in their discretion will result to the best advantage of said estate, and also to use, handle, control, invest and re-re-invest all property belonging to said estate in such manner as to them shall seem proper for the best interest of those interested in said estate.
“In witness whereof, I have hereunto set my hand and seal this 18th day of May, 1899.
(Signed) Chas. Notley. (seal)
"“Signed, sealed, published and declared by the said Charles *467Notley as and for his last will and testament in the presence of us, who in his presence and in the presence of each other, and at his request, have hereunto set our hands as witnesses this 18th day of May, 1899.
“(Signed) Cecil BeowN,
Honolulu.
“(Signed) FraNk F. FerNANdes,
Honolulu.
“(Signed) Alex. St. M. MACKINTOSH,
Honolulu.”
“Codicil to the Last Will and Testament of me, Charles Not-ley, the elder, of Faauilo, in the District of Hamakua, Island of Hawaii, which bears date the 18th day of May, 1899.
“Whereas, by my said last will and testament I have appointed Thomas Rain Walker to be one of the Executors and Trustees thereof, and as the said Thomas Rain Walker intends to depart out of the Territory of Hawaii and reside in England, I am desirous that Cecil Brown of Honolulu, in the Island of Oahu, shall be substituted as a trustee and executor of my said Will, and to serve as such in the place of said Thomas Rain Walker.
“Now, therefore, I do hereby revoke the appointment of said Thomas Rain Walker as such executor and trustee, and do hereby nominate and appoint the said Cecil Brown to be an executor and trustee of my said last will and testament in the place and stead of said Thomas Rain Walker, and to serve as such without giving bonds.
“And I declare that my said last will and testament shall be construed and take effect as if the name of the said Cecil Brown were inserted therein throughout instead of said Thomas Rain Walker’s name. In all other respects I confirm my said Will.
“In witness Whereof I have hereunto set my hand and seal at Paauilo aforesaid, this 2nd day of August, 1900.
“(Signed) Chables Notley.
“Subscribed by the Testator in the presence of each of us, and at the same time declared by him to us to be a codicil to his last will and testament, and thereupon, we, at his request, sign our names hereto as witnesses, this second day of August, 1900.
“(Signed) Wm. H. Siebeckee.
“(Signed) J. LeoNitabt/'’
*468“This is a second codicil to my last Will and Testament which bears date the 18th day of May, 1899.
“First: I hereby ratify and confirm my said Will and the first codicil thereto in every respect, save and except so far as. the said Will and codicil is altered by and is inconsistent with this codicil.
“Second: I hereby revoke the fourth clause or subdivision of my said Will on page two thereof, being the devise to my son David Eyfe Notley of my homestead lot or dwelling house and premises and household furniture, etc., and other property therein mentioned, and in place thereof,
“I give, devise and bequeath unto my niece Emma Danford, the wife of H. D. Danford, of Honolulu, in the’Island of Oahu, all of that real property situate and being at Paauilo, in the District of Hamakua, Island of Hawaii, and Territory of Hawaii, at present occupied, used and enjoyed by me as my residence or homestead, and contains about four acres, together Avith all the household furniture, plate, silver-ware, linen and all and every other kind of fixtures and utensils therein or used in connection therewith, including the carriages, harnesses and horses used by me in said Hamakua, and being a part of my household property and generally used and enjoyed by me in connection therewith.
“To have and to hold the same unto the said Emma Danford, for her sole and separate use and behoof forever.
“Provided, however, and it is my wish, and I hereby declare that my Avife Mary II. Notley shall have the use and occupation of the cottage that is upon said residence premises and Avhich lies on the north side of the tennis grounds on said premises, together with all the use of the furniture and household fixtures in said cottage, for and during the term of her natural life.
“In Witness Whereof, I, Charles Notley, _ the elder, have hereunto subscribed my hand and seal at Honolulú, in the Isl- and of Oahu and Territory aforesaid, this 11th day of April, 1902.
“(Signed) Chas. Notley. (seal)
“Subscribed by the said Charles Notley, the elder, in the presence of each of us, and at the same time declared by him to us to be the second codicil to his last will and testament, and thereupon, Ave, at his request, and in his presence hereto sign *469our names as witnesses at Honolulu aforesaid, this 11th day of April, 1902.
“(Signed) Cecil Beowu,
“Honolulu.
“(Signed) EeaNK E. EeeNANdez,
“Honolulu.”
The questions of facts framed by the contestants for the jury were as follows:
1. “Are the documents dated May 18, 1899, August 2, 1900, and April 11, 1902. * * * the last will and testament of Charles Notley, deceased?”
2. “Were such alleged will and codicils executed and published by the said Charles Notley under and by virtue of undue influence exercised by Emma Danford at the time of the execution and publishing thereof ?”
The trial in the circuit court commenced on January 23, 1903, and ended five days thereafter by the verdict rendered by direction of the court. Many witnesses were examined on behalf of the contestants. The transcript of the evidence constitutes some four hundred typewritten pages besides numerous exhibits consisting of letters, contracts, deeds, etc.
The motion to direct the verdict was based on the ground that there was no evidence to support the theory of the contestants and presumably granted for that reason.
It is contended by the contestants that the arrival of Miss Mullinger wrought a distinct change in the Notley family— that it was contemporaneous with the springing up of discord and family bickerings that scattered the children from the homestead and caused the decedent to strike his wife, something he had never been known to do before, and finally ended in the installation of Miss Mullinger as mistress of the home and the location of the wife and mother in a small cottage in the yard; that Miss Mullinger usurped the place in the decedent’s affections that of right belonged to the wife; that in all disagreements between Miss Mullinger and other members of the family, and these were not infrequent, the decedent uniformly sided with the former and against the latter; that for years prior to the execution of the will and up to the time of *470decedent’s death Miss Mullinger’s wish was the law of tbe Notley family and that the provisions of the will and codicils, namely, that disinheriting the son, Charles, the clause tying up the bequest to his children until the youngest becomes of age, the bequest to Miss Barnard who had no claim on decedent’s bounty, and the codicil bequeathing the homestead to Mrs. Danford instead of the wife, with the other evidence given, demonstrates that the will and codicils admitted to probate express the wish and desire of Mrs. Danford and were not the free and voluntary act of the decedent.
The evidence given, much of which is referred to in the majority opinion, tended in some degree to stablish many of these contentions either directly or indirectly.
There can be no doubt from the evidence that Mrs. Danford had ample opportunity to exercise undue influence over the decedent and there is also testimony tending to show a disposition to influence him against Charles and the mother providing she had the power to do so.
The lawyer who wrote the will testifies that it is the free and voluntary act of the decedent. The will was executed May 18, 1899, while Mr. Notley was stopping at Mrs. Dan-ford’s, on Kinau street, Honolulu, and following the visit of Mrs. Danford to Hamakua in February, 1899, when she and the decedent had tried to induce Charles to persuade his mother to permit Miss Barnard to be installed in the house as governess.
It is in evidence that when this effort resulted in failure Mrs. Danford said she would see that Miss Barnard was remembered in decedent’s will. It was only the preceding October, on the day before her marriage, that Mrs. Danford threatened Charles in effect that she would see that he did not get anything by “uncle’s will”.
The attorney who wrote the second codicil testifies relative to its execution, in part as follows:
“He came into the office I think three or four times previously, and took the will, which was sealed in an envelope, he took and re'ad it over and told me to put it back with the other papers *471in the safe, then he came on this day and told me he wanted to make a change.
“Q. How did he look ?
“A. He was suffering from a very bad cough, the slightest-exertion made him cough, otherwise he looked very well.
“Q. You knew him intimately for a number of years ?
“A. Very intimately. I knew that he was down here on account of being ill, under treatment c»f Dr. at the time for congestion of the lungs.
“Q. What would yon suppose as to whether or not that man on that day was in full possession of his mental faculties ?
“A. I am just as positive that he was in full possession of" his mental faculties as I am here today.
“Q. And you drew that second codicil to the will absolutely in accordance with the old man’s instructions ?
“A. I dH it with his instructions, the second codicil. I received my instructions from him. ******
“Q. Who was present at the time he signed the second' codicil ?
“A. Mr. Fernandez, I told Mr. Notley at the time; I noticed that he coughed so much, there was such a strain on him, I said: Mr. Notley, if you like I will bring this codicil up to. the house where you are staying, and you can execute it there, it will save you from walking around so much; and he thanked me and said, ‘That is all right, you are a good boy,’ etc.
“Q. Who was present when you executed that second codicil ?
“A. I, with Frank Fernandez, nobody else, Mrs. Danford wasn’t there. The only time I saw her was when she brought some ink. He read the second codicil over himself, and I read it over to him.”
This testimony certainly proves that the decedent was at least physically weak at the time of the execution of the second-codicil and that his environment, at that time, was favorable to the exertion of undue influence as contended by the contestants..
The question presented by the exception under consideration-, is not whether the evidence shows that the will and codicils were executed under and by virtue of undue influence exercised by Mrs. Danford but whether there is any evidence from which-the jury may have reasonably inferred that such undue influence was exercised.
*472“It is impossible to define or describe with precision and exactness what is undue influence; wbat. tbe quality and the extent of the power of one mind over another must be to make it undue, in the sense of the law when exerted in making a will. Like the question of insanity, it is to some degree open and vague, and must be decided by the application of sound principles and good sense to the facts of each case. (Lynch v. Clements,, 24 N. J. Eq. 431). But the influence exercised over a testator which the law regards as undue or illegal, must be such as to destroy his free agency; but no matter how little the influence, if the free agency is destroyed it vitiates the act which is .the result of it.” ******
“The undue influence is not often the subject of direct proof. It can be shown by all the facts and circumstances surrounding 'the testator, the nature of the will, his family relations, the ■conditions of his health and mind, his dependency upon and subjection to the control of the person supposed to*have wielded the influence, the opportunity and disposition of the person to wield it, and the acts and declarations of such person.” Rollwagon v. Rollwagon, 63 N. Y. 504, 519.
It was said by the Supreme Court of Michigan in deciding a recent case: “The principal question urged in the case, and pressed upon our attention with great vigor by proponent, is that of whether there was any evidence tending to show the exercise of undue influence which justified the submission of the ease to the jury. It is undoubtedly true that the testimony relating to the exact time of the execution of this instrument strongly supports the proponent’s case. The testimnoy of Judge Whipple, who drew the will, and of the witnesses who attested it, clearly demonstrates that; at the precise time of the execution of the will, no immediate, present influence was being exerted to control the mind and will of Dr. Reed. But this is not decisive of the case. If an unwarranted influence had been exerted theretofore, the effect of which still remained, and which was ■sufficient in fact to subordinate the will of Dr. Reed to that of Hannah Waters, this influence was undue, as much as though it were exerted at the very time the'will was executed. See Petters Appeal, 53 Mich. 106, (18 N. W. 575.) Indeed it is xecognized by the authorities that undue influence is usually *473exercised secretly, and in a clandestine manner; and, as was said by'Mr. Justice Grant in Rivard v. Rivard, 109 Mich. 111 (66 N. W. 686, 63 Am. St. Rep. 570) : “ ‘It is largely a matter of inference from facts and circumstances surrounding tbe testator, bis character and mental condition as shown by tbe evidence, and tbe opportunity possessed by tbe beneficiary for tbe exercise of such control.’ See also 1 Underh. Wills, §132.” Waters v. Reed, 129 Mich. 131, 135, 136.
Tbe motion to direct a verdict, like a demurrer to tbe evidence, admits not only tbe facts stated therein but also every conclusion or inference which a jury might fairly or reasonably infer therefrom. Parks v. Ress, 11 How. 362. “Such a motion, like a demurrer to tbe evidence, admits not only what tbe testimony proves, but what it tends to prove. Tbe ultimate facts, in other words, are admitted.” Railroad Company v. Woodson, 134 U. S. 614, 621.
“We do not think, therefore, that it is a proper test of whether tbe court should direct a verdict, that tbe court, on weighing tbe evidence, would, upon motion, grant a new trial. A judge might, under some circumstances, grant one new trial and refuse a second, or grant a second and refuse a third. In passing upon such motions be is necessarily required to weigh tbe evidence, that be may determine whether tbe verdict was one which might reasonably have been reached. But, in passing upon a motion to direct a verdict, his functions are altogether different. In the latter case we think he cannot properly undertake to weigh the evidence. His duty is to take the view of the evidence most favorable to the party against whom it is moved to direct a verdict, and from that evidence, and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not, under the law, a verdict might be found for the party having the onus. If not, he should, upon the ground that the evidence is insufficient in law, direct a verdict against that party. ****** We only wish to be understood as holding that whenever there is evidence of so positive and significant a character as, if uncontradicted, would support a verdict, it is the duty of the court to submit the case to the jury, under proper instructions. It is certainly not his function to weigh the evidence for the purpose of saying how *474the verdict should go.” Railroad Company v. Lewery, 74 Fed. 463, 477.
The case should be submitted to the jury unless the conclusion follows, as a matter of law, that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish. Dunlap v. Railroad Co., 130 U. S. 649.
“The motion at the close of plaintiff’s evidence, for a peremptory instruction for the company was properly denied. It could not have been allowed without usurpation, upon the part of the court, of the functions of the jury. Where the cause fairly depends upon the effect or weight of testimony, it is one for the consideration and determination of the jury, under proper .instructions as to the principles of law involved. It should never be withdrawn from them, unless the testimony be of such a conclusive character as to compel the court, in the exercise of a sound judicial discretion, to set aside a verdict returned in opposition to it.” Insurance Co. v. Doster, 106 U. S. 30.
The rule is also expressed as follows: “If different minds might draw different conclusions or inferences from facts proved, the case should be left to the jury; and so, likewise,, in the cases of doubt as to the proper inferences to be drawn.” Railroad Company v. Stout, 84 U. S. 657; Railroad Company v. Ives, 144 id. 408, 417; Railroad v. Gentry, 163 id. 353, 368 ; Beatty v. Life Assn., 75 Fed. 65, 68.
A careful examination of the voluminous record in this-cause satisfies me that there was evidence which, unexplained and undenied, tended to prove that Emma Danford exerted undue influence over the decedent in the execution of the will and codicils. It certainly is clear that reasonable men might honestly differ in their view as to the effect of the facts proved and the inferences to be drawn therefrom. In my opinion it was impossible for the Circuit Judge to take the view of the evidence most favorable to the contestants, as the law demands he should, and direct a verdict for the proponents.
Notwithstanding the fact that the testimony relating to the exact time of the execution of the will and codicils fails to show *475any immediate present influence being exerted to control tbe mind and will of the decedent, I cannot overlook the fact that Emma Mullinger, when a girl of thirteen, after a few weeks acquaintance with her uncle, the decedent, voluntarily left her home, father and mother and came to this far away land to live with him and from that time until his death was apparently very much attached to him and lost no opportunity to make a show of affection for him but as soon as he was dead permitted his body to be taken from her home, where he died, and the funeral services to be conducted from an undertaker’s parlors; that she had an aversion for Charles Notley and his mother and that every prediction or threat made by her relative to the disposition of decedent’s property was verified by the terms of the will when published and that she had ample opportunity to-exert undue influence over the decedent. These with other incidents showing a disposition on the part of the decedent to yield to the wish of Emma Danford in many matters certainly tend to support the theory of the contestants.
The contestants certainly had the right to demand that the evidence be submitted to the jury and to have their free and fair judgment thereon. The denial of that right and the direction of the verdict by the Circuit Judge was a clear usurpation of the functions of the jury.
While the trial judge has the undoubted right to take a cause from the jury and to direct a verdict in certain cases, this power should be exercised with great care and caution. Under our system of laws the jury are the constituted triers of the facts. When a party elects a trial by jury he has the right to demand the judgment of the jury on the facts. The trial judge is frequently called upon to act upon the spur of the moment, without sufficient opportunity to analyze or consider the testimony. This fact alone should induce him to give the party against whom the motion is directed the benefit of every reasonable doubt 'and not to take the case from the jury unless his duty to do so is clear.
I -am convinced that it was error for the Circuit Judge td> *476direct tbe verdict in this canse and that the exceptions ought to •be sustained.