(dissenting). I dissent from the majority opinion in this case. I do not believe that the decision reached is sustained by the record, but it is predicated on a factual situation shown by overwhelming evidence not to exist.
The last will of Arne N. Anderson was admitted to probate after a hearing in the county court of Kay county. In that court Charles E. Anderson filed a formal contest, but did not introduce evidence or urge the contest in any manner. He was not represented by counsel until later. On appeal the district court, after an extended hearing, with many witnesses testifying, confirmed the county court’s order and dismissed the appeal of those who contested the will. The district judge saw all witnesses upon the stand, observed their demeanor, considered their interest or lack of interest, and decided the issues in favor of the proponents of the will.
“A will contest is a case of purely equitable cognizance, and on appeal this court will examine the entire record and weigh the evidence, but the findings and judgment of the trial court will not be disturbed unless clearly against the weight of the evidence.” Runnels v. Burton, 202 Okla. 406, 214 P. 2d 709.
See, also, In re DeVine’s Estate, 188 Okla. 423, 109 P. 2d 1078.
In the trial court and in this court contestants attack the validity of the will on two grounds: (1) that Arne N. Anderson was not mentally competent to make a will on March 1, 1947, and (2) that the will was procured by undue influence and fraud by the principal beneficiary, Wilfrid B. Johnson.
Of necessity, and for clarity, this dissent will be extended by recital of certain facts not appearing in the majority opinion. That opinion does not squarely meet the presented issue as to mental competency of testator, but in my opinion the extended testimony offered on mental competency has a substantial bearing on the correct decision of the issue of undue influence, and the testimony of more than a dozen witnesses cannot be ignored or dismissed with a casual observation.
For contestants, three persons not related to deceased and five of the nieces and nephews testified concerning his mental competency. A majority of them testified that after his leg was broken December 31, 1945, Mr. Anderson’s memory was poor, or that he was forgetful or that he did not recognize people including relatives. Several, but not all, expressed an opinion that he was mentally incompetent to make a will on March 1, 1947. One contestant, Tora Rock, a niece, who did not see Arne Anderson in the year 1947, testified:
“A. From 1945 on there I don’t think he would be able to make a will at his age.
“Cross-examination by Mr. Duvall:
“Q. That was largely because of forgetfulness? A. Yes, his forgetfulness, he didn’t recognize people, at times he didn’t.
“Q. Well, it was largely because of his forgetfulness? A. Yes, and absent mi'ndedness.
“Q. Now, you are only 60? A. Yes.
“Q. And you know you are competent to make a will? A. No, I don’t think so.”
The quoted testimony is typical. Obviously, to the trial judge, who knew the testator, it was incredible.
We have held that mere advanced age or physical infirmity does not render one incapable of making a will or entering into a contract. Dunkin v. Rice, 197 Okla. 150, 169 P. 2d 210.
With the exception of one nephew these heirs had all moved away from Ponca City and did not reside in Oklahoma during the last years of Mr. Anderson’s life, and they saw him only on occasional visits.
*485On the contrary, more than a dozen disinterested witnesses, including business and professional men, public officers and doctors, testified that he was mentally competent at the time the will was made. All had been residents of Kay county for years and had frequent and some of them almost daily contact and opportunity for observation of him. Included in these witnesses were the night clerk of the hotel where he lived; the policeman who walked the beat between the hotel and the bank where Anderson spent much of his time, the vice president of the First National Bank of which Arne Anderson was a stockholder, director and depositor; president of a trust company; officer of a Savings and Loan Association; a former city councilman, who had served on the council with Anderson; a retired dentist, and the physician who, so far as this record reveals, had attended Arne Anderson in his every illness. Each of these witnesses testified that deceased was mentally competent to make a will and dispose of his property at the time his will was made. Both the county judge and the district judge found Arne Anderson to be competent, and I am of the opinion that such findings are sustained by a great preponderance of the evidence. I cannot lightly regard the opinions of such witnesses as testified that Arne Anderson was mentally competent. Nor can I substitute a judgment contrary to that of the county judge and district judge who knew the testator and heard and observed the witnesses as they testified.
But it is said the will was obtained by undue influence and fraud of the principal beneficiary, who stood in a confidential relationship with testator.
The rule applicable here was stated by this court in Re Jones’ Estate, 190 Okla. 123, 121 P. 2d 574:
“Undue influence, such as will invalidate a will, must be something which destroys the free agency of the testator at the time the instrument is made and which, in effect, substitutes the will of another for that of the testator. It is not sufficient that the testator was influenced in the ordinary affairs of life or that he was surrounded by relatives and friends in confidential relationship with him at the time o.f its execution. Suspicion, conjecture, possibility, or guess that undue influence or fraud has induced a will, is not alone sufficient to defeat the probate of a will. Power, motive, and opportunity to exercise undue influence do not alone authorize the inference that such influence has in fact been exercised.”
The evidence shows that Anderson watched with interest and probably admiration as Johnson developed from a young man into a successful business man. Through the years Johnson did him many favors. He called for Johnson when he was ill. Johnson and his wife visited him frequently while Anderson was confined in a hospital for more than a year. Anderson was close fisted. Through the years Johnson filled out papers for Anderson in his leasing of property and loans of private funds for which no charge was suggested by Johnson for his services. Many bankers do these things for customers or friends.
Contestants now say that these acts were performed by Johnson designedly and to the end that he might later exercise an undue influence when Anderson came to making his will. The record dees not sustain that contention. Friendship might exert an influence over a person, but such acts of friendship even when confidential relations exist do not necessarily mean that it is what is known at law as an “undue influence”. Whether or not the influence of one person upon another is an “undue influence” is a question of fact for the court to decide, in consideration of all the evidence in the cause.
The same rule was announced in Re DeVine’s Estate, supra. In that case, just as in the case before us, the contestant was a nephew and the principal beneficiaries were not related to the testator.
In Canfield v. Canfield, 167 Okla. 590, 31 P. 2d 152, we discussed at *486length the subject of undue Influence and influence gained by acts of kindness. We approved the following quotations from various courts:
“Influence secured through acts of kindness is not wrongful, and therefore not undue.” Chrisman v. Quick, 174 Ky. 845, 193 S. W. 13.
“Influence over testator gained by affection and friendly attention is not ‘undue influence’ which will invalidate a will.” Biggerstaff v. Wicks, 348 Ill. 129, 180 N. E. 840.
“The word ‘undue’ when used to qualify ‘influence’, has the legal meaning of ‘wrongful’, so that ‘undue influence’ means a wrongful influence, but influence acquired through affection is not wrongful.” Hurd v. Reed, 260 Ill. 154, 102 N. E. 1048.
This record does not reveal that Wil-frid Johnson exercised influence over Arne Anderson to persuade him to make the will in question, to say nothing of employing such influence as would destroy the free agency of the testator or substitute his will for that of the testator at the time the will was made.
Various witnesses have described the traits of character of Anderson as follows: “good business man”; “positive”; “he wouldn’t spend much”; “he was tight”; “most conservative man I ever knew”; “stubborn old man”; “determined”; “alert”; “he was just as keen as I ever saw him up to his last illness.” It is difficult for me to understand how a man possessed of these qualities could be easily influenced or that he would permit another person’s will to be substituted for his own.
Conceding that confidential relationship may give rise to a presumption of undue influence, the overwhelming evidence shows that the testator was not influenced by Johnson or any one else in making his will. Furthermore, the majority opinion assumes, contrary to the evidence, that Johnson prepared the will in question. The undisputed evidence is that Anderson directed how his will should be drawn; that it was drawn by a reputable member of the bar of this state, and that the subsequent changes in the will were directed by the testator and were typewritten only by Johnson. Under the record here there was no occasion for the rule relating to “independent advice” to ever apply.
A person possessed of mental capacity has the legal right to dispose of his property as he wishes.
“The right to make a will includes the right to make it according to testator’s own desires, subject only to the statutory restrictions.” In re Cook’s Estate, 71 Okla. 94, 175 P. 507.
In addition to the cases above cited, this court has held that acts of kindness do not constitute undue influence such as would defeat the probate of a will, and we have consistently followed the rule of In re Jones’ Estate, supra; McClure, Ex’r, v. Kerchner, 107 Okla. 28, 229 P. 589; Kindt v. Parmenter, 83 Okla. 116, 200 P. 706; Nelson v. York, 87 Okla. 210, 209 P. 425; In re Cook’s Estate, supra; Myers v. Myers, 130 Okla. 184, 266 P. 452.
It is true that confidential relations existed between Anderson and Johnson. But those relations were mutual. They were the usual confidences incident to an association in business. This record does not reveal that Johnson ever dominated or controlled Anderson. In fact, it would indicate that Anderson was the more dominant. Johnson came at his every beck and call. Johnson responded when Anderson was ill and called for aid. Anderson loaned his money, rented his farms and town property; made his own deals, and then, at his request, Johnson prepared the instruments incident to the business. This record does not reveal, in the years of their acquaintance, where Johnson ever clashed with Anderson’s views on any matter or imposed his will over Anderson’s will.
When it came to the preparation of the will in question the testator told *487Johnson of his desired distribution of the estate, named the five nieces who were to be given bequests, and directed that he have an attorney draw the will. This was done and the will given to Anderson, who kept it several weeks. He returned, stating that he desired two changes, and Johnson redrafted the will to reflect the changes as directed by Anderson. Again Anderson retained possession of the will for several weeks. On the day that he decided to execute the will Anderson approached a friend whom he wanted as a witness. On their way to the bank this lonely old bachelor told his friend that he was leaving his property to Johnson and his wife; that they had treated him better than anybody. The will was executed. Anderson placed it in his safety deposit box, where it remained until his death nearly fourteen months later. It is intimated in the majority opinion that Johnson, too, had access to the will, but there is no proof or evidence which will justify the insinuation.
I do not agree with the majority opinion that Johnson had complete charge of Anderson’s property and affairs for three and one-half years prior to his death. The hospital record of Anderson’s illnesses following his confinement with a broken leg, which confinement terminated February 4, 1946, shows that he was confined again for one week September 1, 1946, to September 8, 19Í6, and from January 3, 1948, to January 6, 1948. He was again confined from March 12, 1948, to his death on May 20, 1948. He was not ill from September 8, 1946, through the entire year 1947. The will was executed March 1, 1947. The bank’s records reveal that from that date to his last hospitalization Arne Anderson made 32 visits to his safety deposit box, in which the will was kept, and signed the authorization card upon each such occasion. During that time he negotiated and executed a lease on his farm, consulted his farm tenant frequently as to crops and improvements, and collected monthly rentals from his property in town.
This record is replete with evidence showing that Arne Anderson had a very great affection for Wilfrid Johnson and his wife Marie. To various people he referred to them as his children and to Wilfrid as his son.
A quarter of a century before this will was made Arne Anderson expressed a determination to handle his affairs as he saw fit and indicated feelings of partiality and favoritism even concerning his nieces and nephews. At a family picnic in 1920 he told a nephew that he was going to see that his relatives were taken care of “in the proper manner”, and said “there are some I will favor a little more than the others, that I think a little more of.” It is evident that he believed that he was the one to determine what would be the “proper manner.”
In 1945 when certain relatives were visiting him in the hospital he told a friend that his folks had his property divided up and figured out how they were going to spend it, and added “but I’m going to fool them.” When the will was made he knew how he wanted to distribute his property.
In its opinion this court cites two Oregon cases: In re Brown’s Estate, 165 Ore. 575, 108 P. 2d 775, and In re Lobb’s Will, 177 Ore. 162, 160 P. 2d 295. I have no quarrel with the rules announced therein. This court has made similar announcements, which could have been cited. But I do not agree that the factual situations of those cases, one dealing with the will of an illiterate Indian, naming his attorney as chief beneficiary, and the other with the will of an old lady who was infatuated with her attorney and named him as beneficiary, are comparable with the situation of the instant case. Arne Anderson was a competent and shrewd business man who had accumulated his fortune by the exercise of a sound business judgment and frugality. He was a positive character who knew what he wanted done with his estate. The majority opinion defeats the wishes *488of the testator as expressed in his will. The evidence is overwhelming that he knew what he was doing when he willed the bulk of his estate to a stranger to his blood who had been good to him in his lifetime rather than to his blood relatives who, after his death, swarmed from far and near to prove that the testator was non compos mentis when he executed the will, and before and after. The picture is familiar. But seldom in such circumstances are the expressed wished of the testator disregarded.
The majority opinion substitutes the judgment of this court for that of the county court and of the district court, both of which heard the overwhelming testimony of the testator’s intimates and associates to the effect that the testator, though old in years, was sound in mind.
The facts of this case are similar to those in Re Wheeling’s Estate, 198 Okla. 81, 175 P. 2d 317, but much stronger in support of sustaining the will, for there the testator was under guardianship. In that case we said:
“It appears that the will in the present case was duly executed and in accordance with the exact wishes and request of the testator, and upon his sole volition. The judgment of the trial court on the issue of testamentary capacity and in admitting the will to probate is not against the clear weight of the evidence and therefore cannot be disturbed. In re Shipman’s Estate, supra, (184 Okla. 56, 85 P. 2d 317); In re Will of Son-se-gra, 78 Okla. 213, 189 P. 865.”
Even if the judgment is to be reversed I think the case should be remanded for a new trial rather’ than for this court to render judgment.
GIBSON and DAVISON, JJ., concur in this dissent.