(dissenting). I am constrained to dissent from the conclusions of the majority, both because I am of *79the opinion that they misconstrued the function of an appellate court and because my view of the facts before the trial court as supplied to us in the printed record differs widely from theirs.
While an appellate court is not bound by the findings of fact made by the trial judge sitting without a jury, it is required to give due regard to the opportunity of the trial court to judge the credibility of witnesses. R. R. 1:5-3. Where there is sharp conflict in the testimony the trial court’s findings of fact are entitled to great weight. Every intendment is in favor of the judgment under review which should not be disturbed unless the appellate tribunal is satisfied that the trial court’s finding was a mistaken one. McGowan v. Peter Doelger Brewing Co., 10 N. J. Super. 276 (App. Div. 1950); In re Perrone’s Estate, 5 N. J. 514 (1950); deVries v. The Evening Journal Ass’n., 9 N. J. 117 (1952).
In Pratico v. Rhodes, 32 N. J. Super. 178 (App. Div. 1954), reversed on other grounds 17 N. J. 328 (1955), it was held that:
“Although the Superior Court, Appellate Division, is empowered to review the evidence relating to facts in cases, particularly' where controversial issues are essentially factual, and make its own independent findings, the court is not disposed on appeal to overthrow conclusions of the trier of facts unless it is the court’s conviction that such conclusions are so manifestly unsupported by or discordant with competent, relevant and reasonably credible evidence as to offend the interest of justice. * * *”
Nowhere in the majority opinion is it stated that the trial court was mistaken. Indeed, they reverse merely because they come to a different conclusion.
I find more than ample evidence to justify the conclusion of the trial court that the decedent was ill in mind and body, and therefore a fit subject for the exercise of undue influence. The only medical testimony offered by the proponent was that of a psychiatrist who never examined the decedent during his lifetime, but in reply to a hypothetical question stated that *80in his opinion the decedent knew the objects of his bounty and possessed testamentary capacity at the time the will was executed. Massed against this sole item of medical proof, the eaveatrix offered the testimony of the decedent’s own doctor who had attended him frequently for more than ten years. His testimony was to the effect that the decedent’s conversation was rambling and incoherent, that he was weak-minded, that he felt the world was against him and contemplated suicide, that his general condition deteriorated greatly during the last year of his life. This medical testimony was corroborated, and indeed enlarged, by that of other disinterested witnesses, including the owner of the house in which the decedent had lived for over 16 years, who stated that he had been very eccentric, for several years, that he “had failed terribly. His memory was failing.” Moreover, a witness who had seen the decedent frequently during the last few years of his life testified that because of his diabetic condition and his sore foot, he appeared to be somewhat demented. At another point, the same witness testified that the decedent himself had said to him: “My mind is going. I am a physical wreck, I am not going to get better. My mind bothers me.” As an example of how erratic the decedent’s behavior was, the witness said that the decedent had wanted to take his shoe and sock off in a restaurant in order to show the witness how his toe was bleeding; and that such behavior indicated to him that the man was “mentally unbalanced.”
It is significant of the fairly rapid deterioration in the decedent’s physical condition that between October 1953 and his death on July 23, 1954, he was hospitalized five times for varying periods of time ranging from three days to six weeks. In his testimony the decedent’s physician, Dr. Gennell, stated that while he was hospitalized the decedent was a very difficult patient, a constant source of annoyance to the nurses; that he seemed not to understand what he was told, “repeating the same thing over and over again, asking me the same question over and over again * * *.’’
In view of the above, in my opinion the findings of the trial court as to the mental and physical condition of the decedent *81at the time of the execution of the will were amply supported by the evidence.
It is well settled that the presumption is in favor of the validity of a will and he who contests it must clearly establish facts to overcome that presumption. In re Raynolds’ Estate, 132 N. J. Eq. 141 (Prerog. 1942), affirmed 133 N. J. Eq. 346 (E. & A. 1943). However, if a will benefits one who stands in a confidential relation to the testator and there are other circumstances of a suspicious character, then a presumption of undue influence is raised and the burden of going forward with the proofs rests upon the proponent. In re Heim’s Will, 136 N. J. Eq. 138 (E. & A. 1945); Kuruc v. Kuruc, 23 N. J. Super. 584 (Ch. Div. 1952); 5 N. J. Practice (Clapp, Wills and Administration), § 44, p. 108. The relationship of attorney and client obviously is such a confidential relationship. In re Davis’ Will, 14 N. J. 166 (1953).
The former rule was that the fact that the lawyer who drew the will was a legatee was sufficient to raise a presumption of undue influence. In re Sparks’ Will, 63 N. J. Eq. 242 (Prerog. 1901). It has been held that slight circumstances were enough to raise the presumption of undue influence in the case of a lawyor-scrivener-legatee. In re Cooper’s Will, 75 N. J. Eq. 177 (Prerog. 1909). The mere fact that the attorney who drew the will is also a legatee is not sufficient without more to raise a presumption of undue influence. Waddington v. Buzby, 45 N. J. Eq. 173 (E. & A. 1888); Ward v. Harrison, 97 N. J. Eq. 309 (E. & A. 1925); In re Baynolds’ Estate, supra. It is a matter which requires scrutiny by the court. In re Romaine’s Will, 113 N. J. Eq. 477 (Prerog. 1933), affirmed 115 N. J. Eq. 172 (E. & A. 1934). Where the presumption is raised, it may be overcome by a showing that the testator had testamentary capacity, understood the terms of the will, and executed it of his own free will. In re Bottier’s Will, 106 N. J. Eq. 226 (Prerog. 1930); In re Bartles’ Will, 127 N. J. Eq. 472 (E. & A. 1940); In re Hopper, 9 N. J. 280 (1952).
*82While in the ordinary case, the burden is upon the proponent to prove by a preponderance of the evidence the absence of undue influence, In re Weeks’ Estate, 29 N. J. Super. 533 (App. Div. 1954), where the charge is against the attorney who drew the will and who is also the sole beneficiary thereunder, the evidence must be “impeccable” and “convincing.” In re Morrisey’s Estate, 91 N. J. Eq. 480 (Prerog. 1920); In re Heim’s Will, supra.
In the instant matter the proponent’s testimony was evasive, inconsistent, conflicting and, in some respects, incredible; it was contradicted not only by the proponent himself, but by the documentary evidence.
On direct examination, Mr. Beers testified as follows:
“Q. Did you ever handle any litigation for him (Mr. Blake) ? A. No. I am satisfied that he never had any litigation.
Q. Did you ever handle anything that had to do with the drafting of legal documents for this man, outside of this will? A. No.”
Later in his testimony he twice again denied having done any legal work for Blake and, further, when an answer to interrogatories was read to him stating he had never rendered legal services to Blake, he declined to change his answer. However, after there had been testimony by other witnesses that Beers held himself out to represent Blake, specifically in drawing and filing papers on his behalf in a partition suit, he admitted that he had acted as attorney for Blake, saying: “Yes, I recall, my memory is refreshed.”
Such refreshment of memory is not surprising in view of five letters written by Beers to Blake dated from April 1943, to January 1949, which were read in evidence. The letters concerned the sale of real estate, execution of a deed and release by Blake, and in one dated February 25, 1948, Beers suggested to Blake that he make a will, although he had previously answered an interrogatory that he had never made such a suggestion.
Moreover, a cancelled check in the amount of $299.12, drawn by Florence E. McConnell, the caveatrix in this action, *83to the order of Louis J. Beers, attorney, and William G. Blake, was offered in evidence. The check bore the endorsement of Louis J. Beers and William G. Blake, and then, “for deposit only. Louis J. Beers, Attorney.” Although importuned as to what the proceeds represented, Mr. Beers failed to explain; lie at first said he would look up his records, but never did; and finally he said that he must have given Mr. Blake cash for the check, because he kept money in the office sale in his office — but I think it significant that in such event he failed to get a receipt for the cash disbursed from his office funds.
The question of whether or not Beers represented Blake prior to the execution of the will is to my mind only one of the many singular and perplexing facets of the gem of evasiveness and faulty memory which Mr. Beers presented to the trial judge.
The question of to whom he dictated and who typed tlie decedent's will, while not in itself of great weight, is typical of his failure to “come clean” on the questions asked of him. Throughout extensive questioning ho was nnable io state the name of the stenographer to whom he dictated and who typed the will. He mentioned a “Miss O’Brien”; he believed she had typed the will; he explained that he was at that time experiencing secretarial difficulties; but neither during his first examination nor upon his recall for rebuttal did he positively name the person who had taken the will by dictation and afterwards typed it. Further, Beers failed to produce tlie statement of fees usually rendered by a public stenographer, which would have disclosed who typed the will. Since he could not remember the identity of the stenographer, her most important corroborating testimony was not available, and Beers’ own account of the will transaction with Blake stands unsupported.
On the question of whether or not he had expressly interrogated the testator as to the natural objects of his bounty in view of the fact that it had been indicated he was to be ihe sole beneficiary under the will, Mr. Beers was again evasive — he testified that he had questioned Blake about his *84family, but in reply to a question about the decedent’s brothers, he replied:
“I don’t know exactly, but he spoke about a deceased brother. I am telling you all I know. If it is not complete, well, all right, that is the way the record will have to stand * * *”
His testimony discloses that he did not know for a fact whether or not Blake had ever been married, nor whether he had any children.
Beers testified that the decedent visited his office about two or three times a week for about five years before he died, and continued his visits after the execution of the will, presumably until the time of his last hospitalization. However, in controversion of this testimony, Mr. Beers’ nephew, who had been in his office since February 1950, testified that he never saw Blake until the early part of 1954 and that between the first occasion upon which he saw him and the execution of the will on June 7, 1954, he saw him approximately five to eight times, but never thereafter.
Also there was testimony by both Beers and his nephew that Beers had promised to try to get Blake into Ivy Hill Home and that he had told Blake he had enough influence to do so.
The majority in its opinion states: “We feel that these incidents, taken either singfy or as a whole, in the circumstances, do not justify the conclusion that the presumption was not neutralized or rebutted.” The proponent must do more than neutralize the presumption of undue influence; he must overcome it by evidence that is impeccable and convincing. The majority opinion makes no mention of this character of evidence. In my opinion, the evidence offered to rebut the presumption was not clear, impeccable or convincing.
Our courts of last resort have uniformly admonished lawyers who themselves draw wills by which they benefit as legatees. In re Nixon’s Will, 136 N. J. Eq. 242 (E. & A. 1945). The admonition stated in In re Davis’ Will, supra, merits reiteration:
*85“Ordinary prudence requires that such a will be drawn by some other lawyer of the testatrix’ own choosing, so that any suspicion of undue influence is thereby avoided. Such steps are in conformance with the spirit of Canons 6, 11, of the Canons of Professional Ethics promulgated by this court.”
Here, no effort was made by the proponent to remove the suspicion by having another lawyer draw the will. Under the circumstances the decedent was entitled to the benefit of independent counsel of his own choosing. In re Cooper’s Will, supra. Such a course was not suggested to the decedent by the proponent and there is no adequate explanation of his failure so to do.
I would affirm the judgment of the trial court.