Action by appellee, Charles F. Cleveland, to resist the probate of his mother’s will, on the alleged grounds of unsoundness of mind, undue execution, duress and fraud. There was a verdict and judgment for plaintiff, from which *132Mary A. Breadheft appeals. Her motion for a new trial, which was overruled, presents for review certain instructions given and refused.
1. 2. By the terms of the will, the decedent’s property was devised and bequeathed to one Buenting, a lawyer who wrote the will, as trustee to hold during the life of appellee, Charles F. Cleveland, the latter to receive the net income thereof; at his death the property was given one-eighth each to three named grandchildren, and two charitable corporations, and the remainder to appellant. Buenting was named as executor. By instruction No. 4, the court properly informed the jury that the burden was on the proponents, appellant and the executor, Buenting, to prove the due execution of the instrument and that the testatrix was of sound mind and was not unduly influenced, when the will was executed. Instruction No. 24, given by the court, reads as follows: “I instruct you that one occupying a fiduciary relation must, when the question is raised, establish his right in equity and good conscience to any advantage gained from his principal. And in this case, if you find from the evidence that the defendant, L. D. Buenting, at the time of the execution of the alleged will was the attorney of Mary E. Cleveland, and that as such attorney drew the will in controversy; and if you further find that by the terms of such instrument he was made the executor thereof, and was made the trustee of all the property purporting to be devised and bequeathed, with full power to control and manage all of said property during the lifetime of plaintiff; and if you further find that L. D. Buenting gained any advantage by the terms of said will; and if you further find from the evidence that Mary E. Cleveland was at the time a woman of about eighty or eighty-one years of *133age and because of her age feeble in body and mind, then, and in that event, I instruct you that said defendant, Buenting, at the time held toward Mary E. Cleveland a position of trust and confidence, and the burden will be upon him to show by a preponderance of the evidence his right in equity and good conscience to any benefits accruing to him, under and pursuant to the terms of the will thus written by him.” The instruction was erroneous. It can not be said that Buenting derived any benefit or “advantage” from the provisions of the will, within the meaning of the doctrine recognized by many courts that a legal presumption of undue influence obtains where the will is written by a beneficiary occupying a fiduciary relation to the testator. Snodgrass v. Smith (1907), 15 Ann. Cas. 551, note. The scrivener here can obtain nothing except for services as executor and trustee, the reasonable value of which must be determined by the probate court. Compher v. Browning (1906), 219 Ill. 429, 76 N. E. 678, 109 Am. St. 346.
3. Appellant further contends that the rule which exacts of a fiduciary beneficiary the duty of explanartion does not apply to wills as to gifts inter ' vivos, and cites Lee v. Lee (1874), 71 N. C. 139 and other cases. It is unnecessary to consider this proposition, because the instruction was erroneous for the reason given. While it was proper for the jury to consider the fact that the draftsman was named as executor and trustee, together with other evidence offered to show undue influence, the sole fact of the naming of the draftsman as executor and trustee creates no legal presumption of undue influence which imposes a duty of explanation. Friedersdorf v. Lacy (1910), 173 Ind. 429, 90 N. E. 766.
Instruction No. 11 given, contains the following: *134“and, if it shall be found that when she was in good health and free from undue influence, she declared her intention to dispose of her property in the same manner it is disposed of by the will, or in any manner, it is a fact you may consider in determining the validity of the will.” Appellant contends that inasmuch as undue influence as well as testamentary capacity was in issue, the instruction was erroneous because it authorizes the jury to consider hearsay declarations of , testatrix, without limitations, on the issue of undue influence. Appellee contends that the instruction was a part of a series, including Nos. 6 to 11, inclusive, all relating to the issue of unsoundness of mind; that it was the purpose of the court to limit the consideration of such declarations to such issue, and this purpose is disclosed by a consideration of said series. Inasmuch as the judgment must be reversed because of error in giving instruction No. 24, it is unnecessary to determine the question here presented because it is not likely that such ambiguity will appear in any instruction given on another trial.
4. Instruction No. 10, given by the court, reads as follows: “When a woman dies leaving a son surviving her, and leaves no husband and no descendants of any deceased child or children, the law would recognize her son as the natural object of her bounty, when she executes her last will and testament, and if without any reason she either wholly or to a considerable extent disinherits such child, such conduct upon the testatrix’s part becomes a part of the evidence which the jury trying a will contest have the right to consider, if the unsoundness of mind of such testatrix is alleged in such contest. If, therefore, you.find from the evidence in this case that at the time the will in question was executed by the decedent, Mary E. Cleve*135land, she was the owner of an estate consisting of both real and personal property, and that the deceased left a son surviving her, and you find from the evidence that at the time of executing said alleged will, there was no reason why she should, in disposing of her estate, discriminate against her son, and you further find from the evidence that the alleged will executed by the said Mary E. Cleveland does discriminate against her son to any considerable extent, you may take that fact, if it be a fact, into consideration when you come to determine whether or not Mary E. Cleveland was a person of sound mind when, as alleged, she executed the will in controversy in this case.” (Italics ours.) Appellant contends that the italicized portion of the instruction invades the province of the jury.
By instruction No. 13 the court set out certain tests of testamentary capacity which included the following: intelligence and reason of sufficientstrength “to know * * * the number and names of those who are the natural objects of her bounty.” The evidence shows that the testatrix, when the will was made, had a son and some grandchildren; that theretofore the son had failed financially and had filed a petition in voluntary bankruptcy; there was evidence from which the jury might have found that appellant nursed and cared for testatrix and looked after her wants and that her comfort depended on the services of appellant. Whether under such evidence, the son was the “natural object of her bounty,” was a question of fact for the jury’s determination, and the court erred in telling the jury that the law would recognize appellee as such object. Lamb v. Lamb (1886), 105 Ind. 456, 5 N. E. 171; Rarick v. Ulmer (1896), 144 Ind. 25, 33, 42 N. E. 1099; Stevens v. Leonard (1900), 154 Ind. 67, 75, 56 N. E. 27; In re Riordan’s Estate (1910), 13 Cal. App. 313, 109 Pac. 629.
*1365. Complaint is made of instructions Nos. 12 and 8 given by the court. Considered in connection with other instructions given, they are not erroneous. It is contended that the court erred in refusing instructions Nos. 5 and 6 requested by appellant, which sought to inform the jury that declarations of testatrix, made before and after the time of executing the will, should be considered only on the issue of testamentary capacity. We are of the opinion that the subject-matter of the requested instructions was substantially covered by an instruction given. Other questions are presented which we deem it unnecessary to consider because they are not likely to arise on another trial. Judgment reversed with instructions to sustain appellant’s motion for a new trial.