— The evidence tends to show that up to within a year of making his will it was the intention of the testator to make some substantial provision therein for the contestant, and that to so have provided for her would have been most natural and just; but the will propounded contains no such provision. There is also a tendency of the evidence to show that A. L. Higginbotham, the son of the testator, one of the proponents, between whom and his brother the will propounded divides substantially all the testator’s property, and who is made with said brother an executor of the will, had said before the will was executed that he would see to it that the contestant received nothing from the estate of the testator, and that he was active in inducing his father to go to the office of an attorney, some miles from where they lived, for the purpose of having drawn up and executing a will, that he was insistent that his father should go, that the testator was reluctant to go, but finally consented, and was accompanied by his said son. It also appeared that the proponents for some time before the will was executed attended to all their father’s business affairs. All these facts, and perhaps others which find lodgment in tendencies of the evidence, were proper to go to the jury and to be considered by them in determining whether the will was the result of undue influence exercised by the proponents and chief beneficiaries upon the mind and will of the testator, and with them in the case the court very properly refused the affirmative charge requested by the proponents. — Bancroft v. Otis, *31891 Ala. 279.
Charge 2 requested by the proponents is faulty in that it requires vitiating undue influence to be the equivalent of force or coercion, -when fraud is equally patent; and it is misleading in requiring “proof that the will was obtained by this coercion, by importunity which could not be resisted,” since if the jury found, as it was open to them to do, that confidential relations existed between the proponents and the testator, and that the proponents were active in the manner shown by a tendency of the evidence in and about the making of this alleged will, the burden was thereupon shifted to the proponents to rebut the presumption of undue influence arising from these facts, and if they failed to rebut this presumption, the final conclusion should have been that the will was the result of coercion or fraud, though in a sense there was no ‘ ‘proof that it was obtained by coercion, or by importunity which could not be resisted.” Or, in other words, the charge had a direct tendency to mislead the jury as to the burden of proof in a contingency which had arisen in the case. — Bancroft v. Otis, 91 Ala. 279 ; Eastis v. Montgomery, 93 Ala. 293 ; s. c. 95 Ala. 486 ; Burney v. Torrey, 100 Ala. 157.
Charge 3 refused to the proponents was manifestly an invasion of the province of the jury. In our practice the court cannot charge upon the weight to which evidence is entitled.
That part of the court’s charge given ex mero motu to the jury, to which an exception was reserved, is erroneous. The form of expression is open to criticism on the score of tending to impress the jury that the court believes the facts hypothesized to be true, or assumes their truth. And beyond this the instruction is affirmatively bad in that all the influence hypothesized does not necessarily amount to coercion or fraudulent subornation of the testator’s will: the proponents and their mother may “have got the testator to make his will so that the daughter would be left out, ’ ’ without having at all resorted to undue influence in the sense of the law.
The exceptions to the trial court’s rulings on evidence, which are insisted upon in the brief for appellants, are without merit.
Reversed and remanded.