delivered the opinion of the court:
The first question for our determination is the construction to be placed upon the three instruments mentioned in the foregoing statement. The evidence in the case is very clear on this point, and shows that said instruments were executed for the purpose of providing for the care and maintenance of' said testatrix during her life. Offers had been made to appellant that if he would arrange to care for her as she desired he should have her property. This he declined to do, and the instruments in question were drawn for the purpose of inducing and enabling appellee Georg'e W. Huckins to do that which he, the appellant, could not or would not do. The contract, power of attorney and will admit of no construction. They are neither indefinite, ambiguous or uncertain. The first states the terms under which said Huckins is to care for the testatrix. The second gives him power and authority to manage the property of the testatrix during her lifetime, and the third is, to all intents and purposes, a legally executed last will and testament by Margaret Jane Spence. The chancellor could do no more than to so construe and give them legal effect. Argument can make this no clearer.
It is next insisted that the trial court erred in refusing to give three instructions asked on behalf of complainant, but no specific reasons are set forth why they, or either of them, should have been given. We have examined them so far as we have been able to identify them from the argument of counsel, and are convinced that, in so far as they state correct principles of law, they were inapplicable to the facts of the case, and also that the jury was sufficiently instructed as to the law of the case, and therefore no substantial error was committed by their refusal, even if they had been otherwise correct.
Another ground of reversal here urged is, that the verdict of the jury sustaining the validity of the will is contrary to the evidence, the contention being, that the weight of the testimony sustains the averments of the bill that the testatrix was, at the time of the execution of that instrument, of unsound mind and memory and that she was under the undue influence of appellee Huckins and his wife. This is a voluminous record of over one thousand pages of evidence, the trial having lasted about a week. We have made a painstaking examination of the evidence as presented, both in the abstract filed by appellant and the additional abstract filed on behalf of appellees, and are clearly of the opinion that the verdict of the jury and decree of the court below are abundantly supported by the testimony. In the number of witnesses the preponderance of the evidence is with the appellees, and those who testified to the soundness of mind and memory of the testatrix had better opportunities for knowing and observing her mental condition than those who testified to the contrary. As an instance of this, Esther M. Gillett, the nurse who waited upon her in her last illness, was called as a witness on behalf of appellant, who appears to have been entirely disinterested and impartial, though she was appellant’s own witness, testified that in her opinion Miss Spence was of sound mind and under no undue influence or restraint at the time she signed her will. John Barlin, also a witness introduced on behalf of appellant, testified that in his opinion she was of sound mind, and the evidence of the two physicians who attended her in her last illness, Dr. White and Dr. Egert, both testified to the fact that she was fully competent to make a will and in no way unduly influenced. Of those expressing a different opinion, some, at least, g'ave but indefinite and unsatisfactory statements, such as that “she was not a very sound-minded person,” etc.
Much stress is placed by counsel for appellant on the fact that appelleé Huckins, by the will in question, obtains many thousand dollars in money and property for wholly inadequate services rendered, and this is attempted to be construed into evidence of undue influence and want of mental capacity in the testatrix at the time the will and the contract were entered into. In the first place, at that time it was not, and could not be, known how long she would survive and he. be required to provide for and take care of her. All of the money and property might be consumed during her lifetime, and therefore it cannot be said that the transaction is evidence of her unsoundness of mind, or that she was improperly influenced in entering into the 'arrangement. Moreover, appellant was offered the opportunity of having the property if he would assume the burden of her care, maintenance and support, and declined to accept it. He considered the matter fully with his sister, his own wife and appellee Huckins. He was present at the time the papers were drawn up, and at his own request was made one of the executors of the will which he now seeks to impeach. A clause was also inserted in the contract at his request relieving him from all liability after her death, and he afterwards wrote a letter to Colorado, in which he stated that the property had been disposed of according to the wishes of his sister. After her death he made an effort to effect a settlement with Huckins for a division of the property. When the evidence is impartially considered it leaves little doubt in the mind that if his sister had continued to live through many years and had been cared for by Huckins according to the terms and conditions of the contract and will there would have been no attempt on appellant’s part to regain the property. It was her sudden and unexpected death which, it seems to us, prompted the bringing" of the present suit.
In the preparation of the abstract filed by counsel for appellant his cross-examination was almost entirely omitted, to supply which omission, as well as other evidence left out of appellant’s abstract, an additional abstract was filed by counsel for appellee. The cross-examination of appellant himself, as shown by the additional abstract, clearly shows that all the transactions called in question by his bill were entered into between his sister and IJuckins with his full knowledge and con- • sent, and that he must at that time have considered her as possessing testamentary capacity and the ability to rationally enter into the contract which she signed. We are clearly of the opinion that the case made by his bill, and the testimony offered in support of it, fall far short of entitling him to the relief prayed.
The decree of the circuit court being in conformity with this view, will be affirmed.
Decree affirmed.