(dissenting).
The opinion of the majority of the court is such a usurpation of the province of the jury and is such a far-reaching opinion that I feel constrained to dissent. As I see it, the majority opinion will put an end to contesting a will on the ground of undue influence unless such can be established by ’ direct evidence and beyond a reasonable doubt.-
The will left the entire estate to the wife, and testator’s two sons, with whom he had no breach, were cut off with a mere token devise. Due to the age of testator’s wife and the fact that he knew she and his two sons were never on friendly terms, this was a most unusual will. Especially so in view of the fact he expressed a wish to leave the farm to his two sons and also provide for his wife. How easy it would have been for him to have carried out this wish by leaving his estate to his wife- for life, with the right of encroachment, with the remainder to his sons, had it not been for the undue influence of Mrs. Golladay.
While the will was not such as to place the burden on the wife t6 show- there was no undue influence, all the facts surrounding the making of the will tend to show there was such influence exerted by Mrs. Golladay. Under our cases, such as McComas v. Hull, 284 Ky. 654, 145 S.W.2d 841, the declarations of the testator to the effect that his wife was attempting to exercise undue influence on him to make a will in her favor, are not substantive evidence of undue influence. Yet, they are rather strong proof that he was susceptible to his wife’s undue influence when you consider the results she obtained. Add this to the statement of Mrs. Golla-*908day that she would "See that William Gol-laday nor any of his family ever got anything,” and that "She was working on the will,” and you certainly have more than a scintilla of evidence of undue influence. In my judgment it was enough to take the case to the jury and sustain the verdict.
There is evidence in the record that Mrs. Golladay was a domineering woman; that testator deferred to her wishes in the operation of his farm; that she practically sent the old man to town against his wishes to make the will. The fact that she could not make this old and physically weak man sell his farm is not conclusive that she did not exercise undue influence on him to execute this will. Under this record it was plainly a question for the jury to determine whether Mrs. Golladay exerted undue influence upon her husband to make this will- in her favor and cut out his two sons, and the jury found that she did.
I cannot agree with the majority of my brethren that because Mrs. Golladay did not keep her husband in seclusion and restrict his contacts with his sons; or that she did not participate in the physical preparation of the will and retain it in her custody; or did not absolutely control her husband’s business affairs; or the fact that she and testator had long been married; so conclusively shows there was no evidence of undue influence exerted upon her part as to prevent the case going to the jury.
Undue influence is an insidious thing, ever difficult to prove. It is not perpetrated in one bold act in the light of day; rather it is practiced stealthily, treacherously and deceitfully. It is rare that direct evidence of. undue influence is obtainable, hence courts accept circumstantial evidence of it and-admit a wide range of proof. Often it must be proved by a chain of circumstances and the whole of the proof is left to the jury, who may consider testator’s age, his physical and mental weakness, and the confidential relation existing between him and the beneficiary. Russell & Merritt on Kentucky Probate Practice, Vol. 1, Sec. 379, p. 262; McKinney v. Montgomery, Ky., 248 S.W.2d 719.
As undue influence is peculiarly a question for the jury, this court heretofore has been reluctant to upset the finding of that body when there is more than a scintilla of evidence to support it. Russell & Merritt on Kentucky Probate Practice, Sec. 385, p. 270; Hines v. Price, 310 Ky. 758, 221 S.W.2d 673. The law does not require undue influence to be proved beyond a reasonable doubt, or even by a preponderance of the evidence in order to get to the jury, as one reading the opinion of the majority might suppose. But if there is any substantial evidence of undue influence, the question should be submitted to .the jury as the trial judge did in this instance.
The facts in the case at bar clearly distinguish it from Shelly v. Chilton’s Adm’r, 236 Ky. 221, 32 S.W.2d 974 and Mossbarger v. Mossbarger’s Adm’r, 230 Ky. 230, 18 S.W.2d 997, which seem to be the foundation upon which the majority opinion rests. The evidence of undue influence here is much stronger than that in Nugent v. Nugent’s Ex’r, 281 Ky. 263, 135 S.W.2d 877.
For the reasons given I most respectfully dissent.