In Re Lowe , 180 N.C. 140 ( 1920 )

BROWN, J., concurring; WALKER, J., dissenting; ALLEN, J., concurring in dissenting opinion. The testator, a bachelor 62 years of age, died 31 October, 1918, leaving neither brother nor sister, and by this will devised his property to his nearest living kin, Mrs. Jordan and daughters, one of whom was an invalid, and her son, with a family. He also left $1,000 each to two churches in the county, of the communion to which he belonged, and $500 to the widow of another cousin. His other relatives were the children of other first cousins of whom there were eight, all of whom predeceased him, some of them having moved away, and some leaving no children. The testator lived much to himself, and for the last five or six years was not in good health.

The will was written by a member of the bar in good standing, whose testimony, together with that of a tenant who lived on his land a few hundred yards from him, if believed, showed the testator was entirely uninfluenced, and was possessed of a sound and disposing mind when he executed the will. He was taken ill on 29 September with pneumonia. On 17 October his physician informed him that he could not live, and suggested that he write his will, and thereupon he sent for a lawyer, who drew the will under his directions, and, according to the testimony, entirely without suggestion from any one. Testator died 31 October. The attack is made by collateral relations on the father's side, Mrs. Jordan being his only living first cousin, and was on the mother's side.

There was conflict of evidence as to his competency to make a will, which the jury found in the affirmative. The sole allegation as to undue influence was that the physician who had attended him for years suggested to him that he should make a will, and was closeted with him with the doors' shut for a few moments. There is no evidence to show that at any time the physician suggested to him any provisions in the will, and he testified that he did not. The physician was not devisee in the will, but was designated therein as his executor. He was not present when the will was written.

There are many exceptions and voluminous testimony, but the law involved is practically reduced to one point, which is that the court instructed the jury that if they should find that the physician merely suggested to the testator the making of his will, but did not suggest how he should make it, nor any of the provisions therein, that this would not be undue influence. If merely to advise a friend to make a will invalidates it, many wills will be made void.

"The influence which is exerted merely to induce the making of a will, while leaving the testator free from influence as to the provisions thereof, is not undue influence in the legal sense." Struth v. Decker,100 Md. 368.

"Mere advice or suggestion, where directed only to the making of a will, in general, does not constitute undue influence unless so strongly and persistently urged that the testator was unable to resist the adopting it." 40 Cyc., 1146, and notes 57 and 62. "A will is not executed under undue influence because a person, at instance of beneficiaries named therein asks the testator to make a will when nothing was said by them to such person, or by him to testator, as to what the will should contain." In re Seagrist,37 N.Y. Supp., 496; Aff. 153 N.Y. 682.

After the fullest consideration of all the exceptions, we find

No error.