The appellee propounded for probate the will of Mrs. E. A. Powell, and the appellant contested its probate on the several grounds of improper execution, testamentary incapacity, and undue influence. Under the evidence adduced and the instructions of the court, the jury found in favor of the proponent, and the will was duly admitted to probate.
The testatrix was without lineal descendants, and all of the beneficiaries named in her will were her nephews and nieces, except proponent, who was formerly a nephew by affinity. A number of her relatives of this class were not named in the will; and the proponent, with whom she resided during the last nine years of her life and at the time of making the will, a year or two before her death, was given substantially one-half of the estate, and was also made executor of the will.
*358The questions presented by the appeal relate to the issues of testamentary capacity, and the undue influence exerted, as alleged, by the proponent upon the testatrix.
We discover no error in the oral charge given to the jury, nor in the excerpts therefrom, as presented by the first three assignments. It is not necessary, however, in this connection, to say more than that each of these excerpts contains a correct statement of law applicable to the case; and hence an objection to the whole cannot be sustained. It is true, as argued by appellant, that the vice of testamentary incapacity is not affected by the consideration that testamentary action would or would not have been the same had there been testamentary capacity. But the third excerpt does not assert such a principle. It is in fact but an attempt to state the defendant’s contention as to that issue, and, if misleading, an explanatory statement should have been requested.
Although fraud is sometimes referred, to as a form of undue influence (Eastis v. Montgomery, 93 Ala. 293, 9 South. 311), and undue influence is generally declared to be a species of fraud (Moore v. Heineke, 19 Ala. 627, 638, 24 South. 374; Coghill v. Kennedy, 19 Ala. 641, 24 South. 459), the two terms are by no means synonymous—Moore v. Heineke, supra; Whitcomb v. Whitcomb, 205 Mass. 310, 91 N. E. 210, 18 Ann. Cas. 410, and note. Fraud, in the sense of deceit, is certainly a distinct and separate ground of contest from that of undue influence; for, though a victim of deceit, the testator may still act voluntarily and as a free agent; while, as a victim of undue influence, the will of another is substituted for his own, whether with or without deception. — 40 Cyc. 1142, G.
*359Doubtless fraud may be the means of acquiring an undue influence, and may be an efficient aid to its exercise, and in these aspects evidence of fraud may be admissible on that issue, and doubtless undue influence is, in itself, a species of constructive fraud (Shipman v. Furniss, 69 Ala. 555, 565, 44 Am. Rep. 528), yet, where the issue is undue influence, even when the burden of proof has been shifted to the proponent, it would be at least misleading to instruct the jury that he must show the absence of fraud or undue influence, especially where the only undue influence apparent is' that which may be implied from confidential relations. In such a case the presumption of undue influence carries no implication of independent fraud not associated with its operation, and the proponent is required to do no more than show that the testamentary action in question was free from the operation of an undue influence over the testator’s mind. From these considerations it results that charges 1, 2, and 3, though they might have been given without error, were not improperly refused on account of their misleading tendency.
The only evidence of any activity on the part of the proponent in or about the preparation of the will was his own statement that he wrote to an attorney to come and write the will, and that he sent for the two attesting witnesses to come and serve in that capacity. In view of his confidential relations with the testatrix, such activity would suffice to create the presumption of undue influence, and impose upon him the burden of showing its absence in fact.—Bancroft v. Otis, 91 Ala. 279, 8 South. 286, 24 Am. St. Rep. 904. But the proponent also testified that he summoned the attorney selected by the testatrix and at her request, and that he notified the attesting witnesses at the request of that attorney. “Such activity, not of proponent’s own mo*360tion, or prompted by personal motives, but in behalf of the testatrix, and in furtherance of her purposes, will not combine with confidential relations to shift the burden of proof as to undue influence upon the proponent.”—Eastis v. Montgomery, 95 Ala. 493, 11 South. 206, 36 Am. St. Rep. 227; Councill v. Mayhew, 172 Ala. 295, 55 South. 314.
This qualification of the general rule is very clearly applicable to this case, and charges. 1, 2 and 3 are misleading, in that they ignore this phase of proponent’s testimony, and tend to exclude it from the consideration of the jury in placing the burden, of proof. For this reason also, they were properly refused.
The mere fact that the testatrix was an aged woman at the time she executed the will, and weak in mind and memory, does not, in itself, impose upon the proponent, or a beneficiary, the burden of showing that the disposition of her property was fairly made and emanated from a free will, however strongly it might color and support, the charge of undue influence. The effect of charge 13, refused to defendant, is to thus misplace the burden of proof. It is also argumentative, and for both reasons it was properly refused.
The general affirmative charge was properly refused to defendant. It was requested on the theory that the burden of disproving undue influence rested, as a matter of law, upon the proponent; and that he had adduced no evidence whatever that tended to exculpate himself from the presumption of its exercise. But, as we have already shown, if the jury believed all of his testimony, there was no support for the presumption; and hence the result aimed at by the charge remained a question of fact for the jury.
The two attesting witnesses were allowed, against defendant’s objection, to testify to the mental capacity *361of the testatrix at the time she executed the will', without showing any other knowledge thereof than such as was afforded by their observation of her on that occasion. The general rule, of course, is that nonexperts may give their opinion as to one’s mental sanity' or insanity only when they show a personal acquaintance of such duration and intimacy as to permit the formation of a trustworthy opinion. —Odom v. State, 174 Ala. 41, 56 South. 913. But attesting witnesses to a will have always been treated as an exception to this general rule, and they are ipso facto competent to state their opinions, formed at the time, as to the mental status of the person whose testamentary act they are called upon to solemnly observe and attest.—McCurry v. Hooper, 12 Ala. 823, 828, 46 Am. Dec. 280; 40 Cyc. 1025, m. The reasons for the exception are well stated in Williams v. Spencer, 150 Mass. 346, 23 N. E. 105, 5 L. R. A. 790, 15 Am. St. Rep. 206. There was no error in allowing this testimony.
The rulings of the trial court being free from error, the decree of probate will be affirmed.
Affirmed.
Dowdell, C. J., and McClellan and Sayre, JJ., concur.