This is a contested will case. Appellant, James Byrd, son of the testator, Otto Byrd, and executor of the will, dated March 25, 1977, appeals from a jury verdict which found affirmatively (1) that the will was the product of undue influence exerted upon the testator, and (2) that the testator did possess sufficient mental capacity to execute the will.
The case was tried de novo after respondents, who are the remaining sons and daughters and a son of a predeceased son of the testator, filed a petition requiring proof of the will in solemn form of law.
The primary issue on appeal is whether the evidence was sufficient to submit to the jury the issue of undue influence. We agree with the trial court and affirm.
It is the established law that when the formal execution of a will is admitted — or proved, a prima facie case in favor of the will is made out, and the burden is then on the contestants to prove undue influence, incapacity *427or other basis of invalidation. The contestants continue to bear the burden of proof throughout the will contest. In determining whether the contestants sustained this burden, the evidence has to be viewed in the light most favorable to the contestants. Calhoun v. Calhoun, 277 S. C. 527, 290 S. E. (2d) 415 (1982); Havird v. Schissell, 252 S. C. 404, 166 S. E. (2d) 801 (1969); Smith v. Whetstone, et al., 209 S. C. 78, 39 S. E. (2d) 127 (1946). We have also recognized, by the very nature of the case, the evidence of undue influence will be mainly circumstantial. It is not usually exercised openly so it can be directly proved. However, the circumstances must point unmistakenly and convincingly to the fact that the mind of the testator was subject to that of some other person so the will is that of the latter and not of the former. Calhoun v. Calhoun, supra; Havird v. Schissell, supra.
With these principles in mind, we review the evidence, which we conclude was sufficient to submit the issue of undue influence to the jury.
Although the jury, by its verdict, found the testator had sufficient mental capacity to execute the will, the evidence establishes the testator was infirm, both mentally and physically, prior to and contemporaneously with the execution of the will on March 25, 1977, and, consequently, particularly susceptible to influence.
In November, 1976, less than one year before his death, the testator was operated on for cancer of the prostate, and his condition deteriorated thereafter, requiring further surgery in July, 1977 to relieve the pain occasioned by his cancerous condition. It was during this period he stayed at his son James’ home, which was in close proximity to his own.
Another son, Dr. Albert Dean Byrd, a practicing psychologist, described the changes he observed in his father after he became ill, and during his visit in 1976 upon his father’s return from the hospital. In contrast to his previous condition, “he was not very talkative ... disarrayed in his appearance ... just didn’t seem to be able to respond.” While visiting him during the week of March 12th, he observed that his father “was extremely afraid, he was scared, he seemed depressed on occasions, ... kind of up and down.” Dr. Byrd gave his professional opinion that his father was very susceptible to influence during the week before the will was drawn, *428and, further stating as to the coercion, “I do not believe he had the will to resist.”
There is also evidence that during the period prior to the making of the will, the testator had difficulty recognizing people he had known for a long time, including some of his own children, when they visited him from time to time. There were several incidents recounted where the testator had become lost while driving his automobile in familiar places in the county, and appeared confused to the witnesses who offered him assistance.
Although there was some evidence of his church attendance and a visit to the bank in Marion after the execution of the will, the testimony of Mrs. Norris and James’ daughter, Marilyn, clearly shows he did not drive an automobile after March, 1977, and necessarily needed assistance in these activities.1 During this period, the testator was under heavy medication, including Talwin, a strong pain reliever. Dr. Byrd testified he had Percodan, an opiate analgesic, available to him, which contained aspirin, to which he was allergic, and which made him disoriented. On one occasion, the witness observed, Hattie, James’ wife, giving him Valium out of her own bottle, and Hattie told him she gave him that “to calm him down.” These circumstances establish susceptibility to undue influence, which, the jury, by its verdict, found was asserted upon him.
Of particular importance on the question of undue influence is the proof of continuing threats made to the testator by the appellant to place him in a nursing home, even though his fear and dislike of nursing homes was well known to his children.
Josephine Norris, his lady friend whom he had visited regularly for a number of years, noted that he was extremely upset on one occasion in March and he told her James had threatened to put him in a nursing home. According to the witness, Mr. Byrd wanted to marry her and live in her home in Gresham for the reason, “he didn’t want to go to the nursing home. He always told me he didn’t want to go and James was *429threatening to put him in a nursing home.” Several of his children also testified to similar statements. This evidence of continuing threats by James to place him in a nursing home gives rise to the strong inference that he was induced and coerced to change his will making James the chief beneficiary, and to so keep it until his death.
There was also evidence of a purpose and design by James and the members of his immediate family to restrict the visits and to prevent communications between the testator and his children prior to and following the date of the execution of the will. Numerous instances were related where the other children of the testator were not permitted to speak to him on the telephone nor to be alone with him when they visited him at home or in the hospital. Several of the sons who lived in Utah testified after March, 1977 and continuing to his death, they were not permitted to speak to their father on the telephone when calls were made to James’ home. On these occasions, James’ wife, Hattie would answer the phone and offer an excuse, such as, their father was in bad shape or would probably not recognize the party calling. His operation and hospitalization in July, 1977 was concealed from the children of the testator.
It is to be noted that James’ wife, Hattie, did not take the witness stand and there was no denial of the testimony of her conduct in restricting James’ brothers and sisters from talking with their father or being' alone with him.
The testimony of Mildred James, a daughter of the testator, in regard to a conversation with her brother, James, while visiting her father during his hospitalization in July, 1977 evidences an admission of undue influence on his part. At Tr. 57, ff. 20-25.
“Q. What did he tell you as to why he wasn’t accepting your offer to stay there and nurse your daddy?
A. He said I’ve got Daddy to change the will and fix it so I can hire nurses and I don’t need you any longer.
Q. James Otto told you that?
A. Yes, sir, and that hurt beyond compare.”
This testimony must be accepted as true for the purposes of this appeal and raises an inference for the jury’s consideration. Gunnels v. Roach, 243 S. C. 248, 133 S. E. (2d) 757 (1963).
*430There was further evidence the relationship between the testator and his son, James, the principal beneficiary and executor under the will, was of a fiduciary nature. James was the oldest son of the testator in whom he reposed trust and confidence, and inferentially was dominated by him. The testator’s home adjoined his son’s home and, after he became ill he slept there. James Byrd was authorized to sign checks on his father’s bank accounts. The evidence reveals he did so and took care of his father’s business in Marion after he became ill.
In this respect, the facts are analogous to those in Moorer, et al. v. Bull et al., 212 S. C. 146, 46 S. E. (2d) 681 (1948) where we held sufficient for the jury on the issue of undue influence, evidence that her son was closely associated with her and transacted her business, that she was in fear of him, and that he stated he would procure her estate for himself. We stated with approval:
“Where the contestants introduce testimony raising a presumption of undue influence by a beneficiary sustaining a confidential or fiduciary relation toward the testator, the issue should be submitted to the jury, as where, in addition to the factor of confidential relations, there also appear the further facts of an unnatural disposition making the person charged with the undue influence chief beneficiary, and that such person generally dominated the testatrix.2 (Emphasis added). 68 C. J. § 919, p. 1099. Also see 95 CJS, Wills, § 463, p. 445; 94 CJS, Wills, § 239, pp. 1096-1097; Lackey v. Lackey [262 Ala. 45] 76 So. (2d) *431761 (Ala. 1954); Hubbard v. Moseley, [261 Ala. 683] 75 So. (2d) 658 (Ala. 1954).
This case is to be distinguished from Calhoun v. Calhoun, supra, strongly relied upon by the appellants, where we recently held the evidence of undue influence insufficient to make out a jury question. In Calhoun there was no proof of coercion or interference in any way by the chief beneficiary in the making of the will; and great importance was attached to the fact the testator had unhampered opportunity — almost three years after the making of the will — to revoke it subsequent to the operation of any undue influence upon him. Here the will was executed by the testator less than six months before his death. During all of this time he was physically and mentally infirm by reason of terminal cancer, was confined to his home and hospitalized and incapacitated from attending to his affairs; and inferentially, unable to exercise the will to revoke it had he so wished because of the continuing influence and domination by James and his family and the threats to place him in a nursing home.
These circumstances, combined with proof of a fiduciary and confidential relationship, and James’ admission of his role in the procurement of the will, clearly distinguish this case from Calhoun, and require submission to the jury of the issue of undue influence. See also Harris v. Berry, 231 S. C. 201, 98 S. E. (2d) 251 (1957); Favored Beneficiary Rule, 94 C. J. S. § 239, p. 1097.
Appellant’s remaining exceptions charge the trial judge with error in failing to grant appellant’s motion for mistrial on the ground the verdict was not unanimous and in attempting to send the jury back a second time, in violation of § 14-7-1330 of the 1976 Code. We disagree.
The record shows that the verdict as returned by the jury was signed by the foreman in accordance with the judge’s instructions, and he answered affirmatively to the clerk’s inquiry as to whether the jury had reached a verdict, upon further inquiry by the court; no juror dissented.
When the jury was polled at the request of appellant’s counsel, the foreman attempted to explain he had “compromised,” although stating that it was his verdict. Upon advice by the court that a response to the question was required or *432the case would be sent back for further deliberations, the foreman answered affirmatively “yes.”
We hold the foreman’s assent to and acquiescence in the verdict as to undue influence to be unequivocal. His attempt to explain his reasoning process in deliberating on the verdict or to discuss extraneous matters not appropriate to the question posed would not vitiate the verdict, which was unanimous. An analogous situation where the Court held likewise is Nolan v. Boulware, 21 N. C. App. 347, 204 S. E. (2d) 701 (1974); also see 89 C. J. S., Trial § 490, page 152.
We affirm the verdict of the trial jury.
Affirmed.
Lewis, C. J., and Gregory, J., concur. Littlejohn and Harwell, JJ., dissent.His confused state is further demonstrated by his reference in the will to James’ daughter, Mildred Byrd, as the contingent beneficiary, even though James had no daughter named Mildred. His daughter Marilyn, was well known to the testator as “Tut.”
While it is settled law that the issue of undue influence should be resolved in light of the proposition that a sane testator has the right to dispose of his property as he chooses, Calhoun v. Calhoun, supra; Harris v. Berry, 231 S. C. 201, 98 S. E. (2d) 251 (1957), the testator’s unnatural disposition of his property is particularly striking. Although there was a strong band of affection between the testator and his ten other surviving children, it is singular the only living child mentioned in the will by name was James Otto Byrd, to whom he bequeathed his personal property consisting of about $50,000.00 in cash and all of his real estate, subject only to the right in each of his children and the son of a deceased child to select a lot at random out of his two tracts. There is the further proviso that none of the real estate “shall be sold or mortgaged” within fifty years of his death. The record discloses no rational purpose for the testator virtually to disinherit all of his loved ones other than his son James.