(concurring in part and dissenting in part).
I agree with that part of the prevailing opinion which holds that Gail Swan did not lack testamentary capacity. I also agree that a presumption of fraud arises where a confidential adviser is made the beneficiary in a will of a person who relies on his advice and counsel in the making of the will. I also agree that the defendant Macfarlane made a prima facie showing to overcome that presumption. I do not agree with the holding in the opinion that the presumption was not eliminated by such prima facie showing. And, since a rule of evidence adopted by a court of last resort has such far-reaching and lasting consequences, I deem it proper to state my reasons for disagreement.
The opinion states that there is a conflict in the Utah cases on the effect of the presumption arising from a confidential adviser receiving gifts, bequest or other benefits from his dealings with the person confiding ill him, and that some cases indicate that upon the making of a prima facie showing to overcome the presumption of fraud the presumption is eliminated and the issue thereafter must be determined on the evidence as if no presumption had arisen.' It is also said that under such rule the trial court’s finding of fraud and undue influence is probably not supported by the evidence. I would go further than that on both points. I believe that the great weight of Utah cases is to the effect that a presumption is eliminated when evidence is presented to rebut it, and that the case should then be decided upon the evidence. As to the evidence in the case, I believe that a careful study of the transcript and the findings of fact and memorandum decision of the trial court will show that there is no evidence and no finding by the court of any act of deceit, deception, concealment, misrepresentation, solicitation or coercion on the part of Macfarlane or of any attempt on his part to encourage or create discord between Gail Swan and her sister Theo or to persuad Gail to omit Theo from her will. There is no evidence or finding of flattery or flirtatious conduct. (With regard to Kostopulos this was quite different. There were both evidence and *296findings by the court of fawning, flattery and deceit on-his part and efforts to create discord between Gail and Theo. The court expressly found that Kostopulos’ constant attentions and pretended friendship for Gail Swan were prompted by the motive of securing pecuniary benefits.) As to Macfarlane there was uncontradicted testimony of disinterested witnesses that Gail had stated to them that Macfarlane was one of her best friends, that she desired to help him and that she proposed to remember him in her will; that she did not expect to leave much of her property to her sister Theo. She knew that Theo had received property of large value from her father, mother and, grandfather and she had reason to believe that Theo’s husband was wealthy. The will was executed five years before Gail’s death and each of the codicils, more than a year prior thereto. The last codicil was executed immediately following an hour-long interview with the city physician of Salt Lake City and a prominent psychiatrist. They signed as witnesses to the codicil. During-that interview they had questioned Gail as to her desires in relation to disposition of her property and she had named Macfarlane as one of the persons she desired to remember in her will. With this uncontra-dicted testimony of disinterested witnesses qoupled with..Ma.cfarlane’s unequivocal, denials, of. any persuasion or solicitation on his part, it. seems, to me: that, the holding <af the trial court was .clearly -unreasonable as to Macfarlane and Ada Bridge and must have resulted from an erroneous, view of the effect to be given to the presumption or otherwise to the court’s finding that Gail lacked testamentary capacity.
Before discussing the effect to be given to the presumption, I desire to refer to the statement in the opinion that in a law case the appellate court is bound by the findings of the trial court unless such findings are unreasonable in view of all of the evidence. In applying that rule we should not forget that it refers to findings of fact and not conclusions of law. This leads to the inquiry: is a general finding that a will was induced by fraud or undue influence a finding of fact such as is governed by the rule ? This court in In re Hanson’s Estate, 87 Utah 580, 52 P.2d 1103, 1114, quoted with apparent approval the following from the Supreme Court of Michigan :
“ ‘What degree of mental capacity is necessary to enable a testator to make a- v.al-id will, to what, extent and. with what degree of perfection he .must understand the will and the persons and property affected by it, or to what extent his mind must be impaired to render him incapable, is a question of law exclusively for the Court, with - which , the witnesses have nothing to do.. And it is a question, of law of no little difficulty,, which, calls for the highest skill of. competent jurists,,qnd,-,; upon which, the.ablest', courts are not ; *297entirely agreed.’ ” Kempsey v. Mc-Ginniss, 21 Mich. 123, at page 141.
Whether a finding of lack of testamentary capacity or of undue influence should be considered a finding of fact or a conclusion of law or a mixed finding of fact and law, such a finding is necessarily based upon subordinate facts and it is therefore proper for a reviewing court to ascertain whether the finding is consistent with subordinate facts found or with the evidence where the evidence is not conflicting.
“When the judgment of the court below is based upon a deduction from other facts, or upon a conclusion drawn from subordinate facts, the conclusion is subject to revision and to correction if erroneous,” 3 Am.Jur. 472, sec. 90S.
“The rule that an appellate court will not disturb the findings of fact made by a trial judge unless they are manifestly against the weight of the testimony does not apply if he committed an error of law which manifestly influenced or controlled his conclusion of fact, as where he made a mistake as to the onus probandi or commits error in the exclusion of evidence. The appellate court will always review the findings of the trial judge when they were manifestly controlled or influenced by errors of law. It is not bound by the finding of the trial court on oral •evidence based upon an erroneous view of the law as -applied to the facts.” Ib. sec. 904.
“Also when there is a general' finding only, the appellate court has the right to consider whether there is any substantial evidence to support each finding of fact implicit in the general finding.” 9 Bancroft Code Practice and Remedies, sec. 7310.
If the probative facts, as found by the court, are repugnant to the ultimate fact, the latter is invalidated by the former and on appeal such a finding of ultimate fact will not be sustained. Ibid. Hammond Lumber Co. v. Barth Inv. Corp., 202 Cal. 601, 262 P. 29.
Going now to the 'question as to what effect should be given to a presumption, it is stated in the opinion that in some cases this court has held that the only effect of a presumption is to place on the disfavored party the burden of producing prima facie evidence to the contrary and that it is firmly established that such is the effect of many presumptions but that as to other presumptions the court has recognized that they are not eliminated but have the effect of placing upon the disfavored party the burden of persuading the fact finder that the facts are contrary to the presumption— some by á preponderance of the evidence_ others by clear and convincing evidence— and others by proof beyorid a reasonable doubt. The opinion then goes on to hold that the presumption of fraud and undue influence involved in this case is of a kind that is' not eliminated by rebutting evidence. Is this not .tantámciunt to saying *298that the presumption remains in the case and must be given consideration by the jury in connection with all the evidence? And if that is true, how will the court explain to the jury what consideration or what weight should be given to the presumption? Are we not here going into a field of refined reasoning which thoroughly bewilders jurors — and judges ? Are we not opening up a field for zealous counsel to argue both at trial and on appeal abstract principles and rationalizations which mislead jurors and judges alike ?
I am unequivocally opposed to a further perpetuation of the confusion which results from a rule which holds that various effects shall be given to various presump-' tions. As a trial court judge I most earnestly urge that such a rule places an unconscionable burden upon trial judges and, in jury cases results in unlimited confusion of jurors. I am strongly in favor of retention of the rule heretofore repeatedly announced by this court and adopted by the American Law Institute that when rebutting evidence is introduced, the issue should be decided upon the evidence — without having the jury or trier of the facts confused by incomprehensible explanations as to the effect of a presumption or as to the quantum of proof required to overcome a given presumption. I quote the following from Buckley v. Francis, 78 Utah 606, 6 P.2d 188, 191:
“In two cases recently decided by this court, the legal effect of a presumption is discussed and decided. State v. Green, [78 Utah 580] 6 P.2d 177; In re Newell’s Estate, [78 Utah 463] 5 P.2d 230. It is held in each of those cases and other cases there cited that a presumption is a rule of law which may be relied upon as establishing a prima facie case for the party in whose favor the presumption exists until, and only until, the opposing party goes forward with some evidence which tends to overcome the presumption, that a presumption cannot stand in the face of facts, and that, when evidence of facts appears in the cause, the presumption, having served its purpose, passes utterly out of consideration of the trier of the facts. In those cases we condemned instructions which directed the jury to undertake the impossible task of considering and weighing presumptions as if they were evidence.”
The case of State v. Green [6 P.2d 182], cited in the above, quotes from and expressly approves the pronouncements of Thayer, Wigmore and Jones upholding the foregoing rule.
“ ‘The better reasoned authorities hold that a presumption is not evidence of a fact, but purely a conclusion, having no probative force, and designed only to sustain the burden of proof until evidence is introduced tending to overcome it.’ Jones, Comm, on Evidence (2d Ed.) § 30, p. 59.
*299- “ ‘While it is obvious, then, that a presumption, i. e., the assumption, in-tendment, taking-for-granted, which we call by that name, accomplishes, for the moment at any rate, the work of reasoning and evidence, it should be remarked, as I have said before, that neither this result, nor the rule which requires it, constitutes,tin itself, either evidence or reasoning. This might seem too plain to require mention if it were not for the loose phraseology in which courts sometimes charge the jury, leaving to it in a lump “all the evidence and the presumptions,” as if they were capable of being weighed together as one mass of probative matter. The error is not limited to trial courts. Such a remark might pass as merely a loose and inaccurate way of saying that it accomplishes the result of evidence or reasoning, if it were not that sometimes judges go on to declare that the presumption is in itself so much probative matter, to be weighed as against other probative matter, i. e., evidence in the proper sense of the word, and make this notion the basis of a decision. Such an error is quite too grave and harmful to be overlooked.’ Law of Evidence, Thayer, pp. 337-339.
“ ‘Nevertheless, it must be kept in mind that the peculiar effect of a presumption “of law” (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary from the opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the judge’s requirement of some evidence), the presumption disappears as a rule of law, and the case is in the jury’s hands free from any rule.’ Wig-more on Evidence (2d Ed.) vol. S, § 2491, pp. 451, 452.”
In considering the point at issue, it should be remembered that some states have statutes which have been construed to bind the courts to a rule that a presumption can or must be considered as evidence.' California has such a statute, and decisions of the California courts should be weighed in the light of that statute. See Smellie v. Southern Pacific Ry. Co., 212 Cal. 540, 299 P. 529, 532; People v. Milner, 122 Cal. 171, 54 P. 833, 95 A.L.R. 885. Utah has no such statute and has repeatedly held that a presumption is not evidence.
The American Law Institute rule is as follows:
“Rule 704. Effect of Presumptions.
“(1) Subject to Rule 703 [relating' to presumption of legitimacy] when the basic fact of a presumption has been established in an action, the existence of the presumed fact must be assumed unless and, until evidence has been introduced which would support a finding of its non-existence or the basic fact of an inconsistent presumption has been established.
*300“(2) Subject to Rule 703, when the basic fact of' a presumption has been established in an action and evidence has been introduced which would support a finding of the non-existence of the presumed fact or the basic fact of an inconsistent presumption has been established, the existence, or non-existence of the presumed fact is to be determined exactly as if no presumption. had ever been applicable in the action.”
The comment appended to the rule in the A.L.I. Model Code (page 314) is as follows :
“Comment on Paragraph (1) :
“This states the view of practically all text-writers, and is universally applied by the courts when they are using the. word ‘presumption’ carefully and not as a mere synonym of ‘inference.’
“Comment.on Paragraph (2) :
“a. Comparison with existing law-This Rule is in accord with the decisions of the United States Supreme Court and of the courts of last resort in a number of states. It is supported by countless dicta and has the approval of distinguished commentators. It is not subject to attack for unconstitutionality under Western & Atlantic Railroad v. Henderson, 279 U.S. 639, 49 S. Ct. 445, 73 L.Ed. 884, or kindred decisions.
“b. Application and reasons. A presumption, to be an efficient legal. tool, must (1) be left in the hands of the judge to administer, and not be submitted to a jury for decision of the question when it is ‘rebutted’ or ceases to have compelling force; (2) be so administered that the jury never hear the word presumption used since it carries unpredictable connotations to different minds; ^.nd (3) be embodied in a rule easy of' application by the judges in the hurry of trial. This Rule meets these tests. It expresses the Thayerian theory that the sole procedural effect of a presumption is to put upon the party asserting the nonexistence of the presumed fact the burden of producing evidence of its non-existence.”
A further comment on page 309 recites that judicial opinions reveal at least eight separate and divergent views as. to the effect of presumptions, and then cogently states as a reason for adoption of a simple rule in the above form the following:
“If the confusion in the authorities is to be escaped by legislation which gives effect to the reasons which have caused the courts to create the various presumptions, no single rule, no simple rule can be devised. Presumptions must be classified, and each class must be given an effect commensurate with the strength of the reasons which induced its creation. This calls for an almost impossible performance. Each, of the myriads of presumptions here-. *301tofore recognized by the courts would have to he carefully studied and assigned its proper class; and provision would have to be made for an arbitrary assignment of presumptions created hereafter and not judicially or legislatively classified when created. The cure would probably be as bad as, if not worse than, the disease. A simple solution must be sought even though it may not be as rational as a complicated one.”
My experience as a trial court judge convinces me that the American Law Institute rule is far less confusing and far more understandable and realistic, particularly in jury cases, than the rule recommended, by the Commissioners on Uniform State Laws which is favored by Mr. Justice Wade. Whenever the word “presumption” is injected into instructions to a jury it is impossible to predict how jurors will be influenced by it. The fact that, judges and appellate courts have constantly debated and disagreed as to its meaning and effect ought to convince trial judges that it should never- be incorporated in instructions to a jury except in criminal cases involving the presumption of innocence and in cases involving the presumption of legitimacy of a child bom in wedlock. If any other exceptions are to be made they should be specifically designated and catalogued. I think this is necessary because of the limit? less, number of presumptions with which courts are requested to deal and the impossibility of correctly deciding during the course of the trial what effect-is to be given to a particular- presumption — under a rule 'which provides that different presumptions have different effects.
In this connection I think it is clearly illogical to say that the presumption of fraud is a presumption standing in a class which calls for greater proof for its elimination than other presumptions. I have no greater sympathy nor any less contempt than other members of the court for a confidential adviser who procures a bequest under a will be means of fraud or undue.influence. I agree heartily with, language in opinions declaring that, attorneys, confidential advisers and fiduciaries have a duty to act with utmost fidelity and- good faith in dealing with one, who reposes trust in them and that when found guilty of violation of that duty the law should, deprive them of the fruits of their. .contemptible conduct. But that is not the question, .before the court.. The questions, her.e., ,afre: Was fraud in fact perpetrated? ,. A,nd, what are proper rules of evidence.fop.(determining whether there was fraud ? Countless cases, have, said that fraud, is odious and will not be presumed. Here we are dealing with an. exception which, says that if a confidential adviser who draws a will receives a bequest thereunder, a presumption arises that it was, procured by fraud or undue influence. Shall we go further and in effect say that the jury or trier, of the fact shall not only give consideration to the basic facts, which give rise, to the presumption (viz. motive and opportunity) *302but shall give added (and mystical) weight to these facts hy keeping in mind that the law has created a presumption of fraud which is not dissipated by the production of evidence in rebuttal but must be weighed along with the evidence? Before answering, let us consider a universally accepted general rule that in the absence of proof to the contrary, men are presumed to act honorably.
“Perhaps there is no presumption more highly favored in the law than that of innocence * * *. The favor with which this presumption is regarded in the law is illustrated in this, that when misconduct or crime is alleged, whether in a criminal or civil suit, whether in a direct proceeding to punish the offender or in some collateral manner, the accused is presumed innocent until proved guilty. This is also illustrated in the fact that other presumptions so aften have to yield to that of innocence, and by the fact that although ordinarily the burden of proof is on the one asserting the affirmative of the issue, yet if proof of a negative is necessary to establish guilt such proof must be made * * *. As stated by Taylor (Taylor Evid. 10th Ed. sec. 112) ‘The right which every man has to his character, the value of that character to himself and his family and the evil consequences which would result to society if charges of guilt were lightly entertained or readily established in courts of justice — these are the real considerations which have led to the adoption of the rule that all imputations of crime must be strictly proved. The rule then is recognized alike by all tribunals, whether civil or criminal, and is equally effective in all proceedings, whether the question of guilt be directly or incidentally raised.’ ” Jones, Law of Evidence (3d ed.) sec. 12.
“In actions involving fraud, as in other cases where the facts present a double aspect, one consistent with fair dealing and the other involving dishonesty of purpose, the court, unless the scale decidedly preponderates for the latter, will strike the balance in favor of honesty and innocence.” Ib. sec. 13.
A further objection I have to the prevailing opinion is that certain language in it appears to .commit this court to a position which conforms neither to the rule adopted by the American Law Institute nor to that recommended by the Commissioners on Uniform State Laws. By saying that the effect of many presumptions is eliminated upon production of prima facie evidence to the contrary but that other presumptions are not so eliminated but have the effect of placing on the disfavored party the burden of persuading the fact finder that the facts are contrary to the presumed facts — some by a preponderance of *303the evidence — others by clear and convincing evidence — others by proof beyond a reasonable doubt — it appears to me to attempt to reconcile the irreconcilable expressions found in past decisions of this and many other courts and adopt a middle ground which is not tenable under either the A.L.I. rule or the rule of the Commissioners on Uniform Laws. I think it obvious that we should adopt one or the other of the proposed rules and, as heretofore stated, I am strongly in favor of the rule of the American Law Institute which in my opinion is unquestionably more simple and understandable for trial judges and immeasurably more practical and less confusing in jury cases. Appellate courts have too long permitted conflicting rules relating to effect of presumptions to confuse trial judges and jurors and give to learned counsel an excuse for arguing mystifying abstractions when a presumption is involved in a case. If there are any presumptions other than the presumption of innocence and the presumption of legitimacy of a child born in lawful wedlock which call for special consideration in opposition to the general rule as to effect of presumptions, let us specifically designate them. I do not think that the presumption of fraud is one which calls for such special designation.
In my opinion the decision of the trial court should be reversed and the will declared valid except as to the bequest and devise to Kostopulos.
WORTHEN, J., does not participate.