The exceptions involve three propositions:
1. That the execution of the will was not proved. Part of the argument seems to be based on an understanding that the law requires the presence of both witnesses, together with the testator, at the time each signs. This is so only with respect to charitable bequests. All his will requires is proof of testator’s signature by “two or more competent witnesses;” and this was furnished by two of the subscribing witnesses, who were competent, and there was no dispute about it. Though one of them, on cross-examination, became confused and made inconsistent statements about the order in which the signatures were affixed, the number of persons in the room, etc., he is none the less competent; and as the judge who sat at preliminary hearing found that the signature was proved by him and one other subscribing witness, we cannot upset the finding, and, in any event, would not be disposed to do so after reading the testimony.
2. That the scrivener of the will, who was one of the beneficiaries, held a confidential relation to the decedent, and there was, therefore, a presumption of undue influence, which the proponents failed to overcome. This was a nephew, who wrote testator’s letters and signed his name to them after testator had read them, drew his cheeks (which testator signed himself) and occasionally cashed checks for him, but was not regularly employed by him. A general agent does bear a confidential relation to a testator; but we know of no case, and are referred to none, which holds that friendly offices such as these, no matter how constant and how useful, are to be so characterized. As this necessary element to raise a presumption of undue influence is lacking, we need not discuss whether there is sufficient evidence to support a finding as to the other elements.
3. That proponents failed to show lack of undue influence. If it had been necessary for the proponents to sustain any such burden, they would go very far in that direction by the undisputed evidence that this will followed closely the lines of a will prepared for the testator at his own request, many years before, by a lawyer who knew him well — the only changes being those made advisable by deaths which had intervened — and that the testator gave instructions for the present will in a memorandum in his own handwriting which was produced.
The exceptions are dismissed.