(concurring in reversal and remanid). Reluctantly, I join my Brother O’Hara’s conclusion that a new trial must be ordered in this case. As I read the record there is ample evidence to sustain the jury’s verdict either on the basis that testatrix lacked testamentary capacity or on the basis of fraud and undue influence. Yet, the very factors which prompt Justice O’Hara to characterize this trial as “overemotionalized and underdisciplined” persuade me that neither proponent nor contestants were accorded the fair trial due them and which it is our obligation, as it is also the trial judge’s, to provide. On the authority currently appearing in GCR 1963, 865.1(7), I would reverse and remand for new trial.
Upon retrial of this, case, it is to be hoped that prejudicially erroneous evidence will be challenged promptly by appropriate objection followed by a motion to strike whenever necessary to protect the *180parties’ respective interests.1 Whenever such objection or motion is made, it is the judge’s duty to rule unequivocally thereon and to instruct the jury to disregard evidence given which is ordered stricken. Too frequently in the trial reviewed grossly prejudicial evidence was admitted without so much as an objection and too frequently when an objection was made the court failed to rule directly thereon but, instead, ordered the examiner to “proceed”.
There is also demonstrated in this case an apparently growing practice of reliance upon what is called in this record a “continuing objection” by which is meant an objection is deemed taken whenever objectionable evidence is offered without need to express such objection for a timely ruling on the record. However useful, and perhaps unobjectionable, such practice may be when restricted to a clearly identifiable and brief line of inquiry as to which an objection is made, argued, and disposed of by ruling, it should not be permitted in other circumstances.
While one of contestants’ claims was that the will and codicils •«’■ere the product of proponent’s undue influence over testatrix, contestants did not request, and the trial judge did not submit to the jury, an instruction on the presumption of undue influence which arises in this case by virtue of the fiduciary relationship existing between proponent and testatrix, proponent having been testatrix’ lawyer, and having, in fact, drafted the proposed will and its codicils by which he and his wife were named principal beneficiaries of testatrix’ estate. We have very recently reviewed the presumption of undue *181influence which, arises in such cases when a testator favors in his will a person who is in a confidential and fiduciary relation with him. See In re Wood Estate (1965), 374 Mich 278 (5 ALR3d 1). When the fiduciary so benefited, directly or indirectly, happens to be a lawyer-scrivener of the challenged testament, the burden of overcoming the presumption quite obviously is substantially greater than had an independent and disinterested person prepared the testamentary instruments. Indeed, this Court almost 60 years ago bluntly warned the profession against such conduct, in Abrey v. Duffield (1907), 149 Mich 248, at 259:
“By statute, a bequest to a subscribing witness, necessary for proving the will, is declared absolutely void (CL 1897, § 9268), and this, though the subscribing witness may be and generally is ignorant of the contents of the will. Although there is no statute to invalidate a bequest to a scrivener, the reasons are, at least, as strong for such a statute as in the case of the subscribing witness. I believe it to be generally recognized by the profession as contrary to the spirit of its code of ethics for a lawyer to draft a will making dispositions of property in his favor, and this Court has held that such dispositions are properly looked upon with suspicion. Dudley v. Gates, 124 Mich 440.”
Reversed and remanded. Proponent may have costs.
T. M. Kavanagh, C. J., and Black, J., concurred with Souris, J.Metropolitan Life Insurance Co. v. Ethier (1876), 34 Mich 277, 278 (Cooley, C. J.); Brown v. Barnes (1878), 39 Mich 211, 214 (33 Am Rep 375); Baumier v. Antiau (1890), 79 Mich 509, 516; Weiser v. Welch (1897), 112 Mich 134, 137; In re Paquin’s Estate (1950), 328 Mich 293, 304, 305; In re Kanera’s Estate (1952), 334 Mich 461, 475, 476.