Peterson v. McMicken

*452 OPINION

This is a contest of a will. Jarda Elizabeth Nelson died in Carbon County, Wyoming, on September 2, 1951. She had property which she had inherited from her deceased husband who died in 1939. The property *453 consisted of grazing and other lands amounting to more than 50,000 acres and some sheep and other personal property. She executed a will on December 28, 1944. In that will she left the main portion of that property consisting of the lands, sheep and other property connected with running the ranch to Elmer G. Peterson, her nephew. She stated that she made this provision “in recognition of the faithful services rendered in the management and care of my said sheep and livestock outfit when I was in dire need of a manager, the many sacrifices made by him in my behalf and the untiring patience and devotion shown me at all times.” She left the sum of f 10 to her brother, Hugo E. Peterson, who subsequently died in 1948, leaving as his heir Hugo E. Peterson, Jr. She also made some provision for her niece Rogene Peterson, sister of Elmer, which was however changed in the codicil hereinafter mentioned. She also made provision for her mother. That particular provision will be copied verbatim hereafter. She made also the following provision: “All the rest and residue of my estate, of any kind and description, real and personal, I devise and bequeath to my sister, Ellen M. Kastner.” Her mother, her brother and her sister and Elmer and Rogene Peterson (the latter children of Elmer, another brother of deceased) were the only relatives who would have taken the property if the testatrix had died intestate. She appointed Clarence A. Brimmer as executor of her last will and testament.

Subsequently on March 25, 1951, she executed a codicil substituting A. R. McMicken as executor of her will and codicil. She also made a definite provision for Rogene Peterson, leaving her the sum of $20,000. She further provided that the executor might withhold all state and federal inheritance taxes found to be due on the respective shares of the beneficiaries. In other re *454 spects she confirmed the will of December 28, 1944, in the following terms: “I do hereby ratify and confirm my said Will as modified, altered and changed by this Codicil, which I specifically direct be attached and affixed to my said Will dated December 28 ,1944. The will and codicil were duly admitted to probate on October 4, 1951. Thereafter on March 15, 1952, Alma A. Peterson, Ellen M. Kastner, and Hugo E. Peterson, Jr., filed a petition contesting the will and codicil upon the ground that when the will and codicil were executed Jarda Elizabeth Nelson did not have testamentary capacity and that these documents were executed because of undue influence exercised upon the person of testatrix by Elmer G. Peterson. The contest came on for trial before the court with a jury. The court submitted the following questions to the j ury to be answered:

“1. Was Jarda Elizabeth Nelson, at the time of the execution of the alleged Will, dated December 28, 1944, of sound and disposing mind?”

The jury answered this by “Yes.”

“2. Was Jarda Elizabeth Nelson, at the time of the execution of the alleged Codicil, dated March 25, 1951, of sound and disposing mind?”

The jury answered this question by “yes.”

“3. Was Jarda Elizabeth Nelson induced to sign the alleged Will, dated December 28, 1944, by means of undue influence of Elmer Peterson?”

The jury answered this question by “No.”

“4. Was Jarda Elizabeth Nelson induced to sign the alleged Codicil, dated March 25, 1951, by means of the undue influence of Elmer Peterson?”

The jury answered this question by “No.”

Thereupon on March 15, 1953, judgment was entered denying the prayer of the contestants and confirming the admission to probate of the last will and codicil of *455 the deceased. Thereupon Alma A. Peterson and Ellen M. Kastner appealed the case to this court by direct appeal.

The record in this case consists of considerably more than 1000 typewriten pages. The evidence is voluminous and to keep this opinion within reasonable compass, it will, of course, be necessary to considerably condense the testimony, leaving, however, if possible, a fair presentation of the facts in the case.

1. Susceptibility to undue influence.

Contestants in the oral argument in this court abandoned the claim that testatrix did not have testamentary capacity. They now rely upon the fact that the will in question in this case is invalid on account of undue influence upon testatrix exercised by Elmer G. Peterson, nephew of the testatrix. They introduced one class of evidence which they consider as showing susceptibility of such undue influence. They summarize that evidence in their brief somewhat as follows:

The testatrix was born in Leadville, Colorado, on September 13, 1889. She was the eldest of four children, the other children consisting of two brothers, Elmer and Hugo, and a sister Ellen, who subsequently married Kastner. The testatrix became a nurse and at one time became superintendent of the hospital at Raw-lins. During that period she was immaculately neat and clean. In 1916, she married Andy Nelson, the operator of a large sheep outfit with headquarters at Walcott, Wyoming. A fine house was built at Walcott which the Nelsons occupied for some time. About 1934, or before, testatrix became afflicted with arthritis and that affliction increased as time went along. She told one of the witnesses in the case that her affliction may have started with a stroke. At that time she was still fairly neat but not careful about her personal appearance. She *456 became irritable and cross and would quarrel with her husband. While in the office of Clarence Brimmer, she would at times shout and pound the table. By the year 1944, she had grown worse with her arthritis, at times suffering excruciating pain. She was terribly crippled and had1 deformities all over her body, hands, feet and back, and was unable to move about easily. By the year 1944 she had become slovenly, untidy and unclean about her clothes and her person. She would not wash her hair; her clothes and hose were worn and ragged. At about this time she also had a Mexican houseboy about 30 or 35 years old doing house work for her and cooking and looking after her personal needs such as taking her to the toilet, giving her baths and one time he helped Dr. Jeffrey give her an enema. (How often the Mexican so helped her does not appear.) Testatrix also suffered from varicose veins. This would cause itching and she would scratch the area and then without washing her hands, would skim cream from milk in a pan by running her fingers around the edge of the pan. (It does not appear how often that occurred.) By the year 1934, testatrix and her husband had quit living together as husband and wife and she would not permit him to sleep in the big house because he and his dog were dirty. She raised cain about his smoking a pipe in the house and having liquor there. He moved to a log cabin located about 100 yards from the big house. The log cabin did not have modern facilities. Her husband died in 1939. Testatrix for a while continued to sleep in the big house but cooked the meals in the log cabin. She had wrapped all the furniture, except the bedroom furniture, with paper and burlap and it stayed that way for years. She finally moved out of the big house and lived entirely in the log cabin. During this time she had lost all sense of modesty. (Argumentative.) The Mexican houseboy performed the most intimate tasks for her. She would not pull the curtains in *457 the big house at night and could be seen through the windows in the nude. (How often this occurred does not appear.) She would go out into the fields all day watching the men in whatever they might be doing. During this period, according to the witness Balenovic, she had become very erratic and inconsistent. She would agree to the sale of the ranch and then change her mind. (This apparently was largely because she was afraid that the Government would take a large part of the purchase money.) She became penurious and would not go to the hospital and would not employ a nurse because, for one thing, it cost too much. She refused to raise the wages of her men. She was stubborn in the extreme. She was also a schemer. She was also eccentric. The witness, Mrs. Potter, a nurse, stated that in 1944, the mental condition of testatrix was not good and she was not a normal person. She died from auricular fibrillation in September 1951.

Counsel, however, state in their brief “Even though this situation existed, it appears from the record that she was able to run this rather large sheep outfit. She gave orders with respect to work to be performed, hired and fired men, kept the time of her men and paid them by check, purchased groceries and supplies and in general handled her own business affairs. She seemed to know what property she owned and who her relatives were. It was difficult for her to get around to oversee the ranch but her help would put her in a pickup truck and she was out over the ranch most every day in the summer particularly when haying was on.”

One Joe Cruz was a witness for the contestants. He testified that the testatrix knew everything about her sheep and cattle; that she always surprised the witness by the knowledge about her landmarks and her number of sheep and her number of cattle and he often watched her stand around and count the sheep along with the *458 foreman and along with the rest of the men. Testatrix knew right well what she was doing all the time and she was competent and very appreciative of the work which witness did.

The witness C. L. Bates, also a witness for the contestants, testified that testatrix gave him a check in 1944. That at that time she absolutely knew what she was doing and she was absolutely competent. In 1950 the testatrix recognized the witness; her memory was good; she knew who her relatives were and what property she had; she gave the exact number of sheep and the exact number of acres of land that she owned. Testatrix enjoyed visiting with the witness and talked about other things besides the ranch and sheep, such as her general health.

Clarence A. Brimmer, who was the attorney for the Nelsons for many years, also was a witness for the contestants. He prepared the will in 1944. He stated the testatrix knew absolutely what she was doing. At that time she was absolutely mentally competent. No one forced her to sign the will; no undue influence of any kind was used upon her to the knowledge of the witness. She gave him the instructions of how she wanted her will prepared and no other person was present when she gave the instructions. She ran her own outfit and was not easily influenced.

Some twenty or more witnesses testified on behalf of the contestees herein. We shall give short extracts of the testimony given by some of these witnesses. James Collins testified that her mental condition was all right, the same as anybody else; that she had a nice, sunny disposition. All the time that he knew her she was of sound mind, knew what she was doing and knew her property. She would order supplies, handle sale of lambs, and knew her horses by sight and by their *459 names. Albert L. Welton, Jr., an adjoining rancher, testified that he had business dealings with her nearly every year. All the time he knew testatrix her mental condition was very good. In fact, it always seemed miraculous how alert she was in view of her physical condition. Witness was sure she was not easily influenced. She had a mind of her own and she knew what she wanted. Witness Crone, an adjoining ranch owner and graduate civil engineer, testified he had known testatrix since 1916 and had done business with her. She was a good neighbor, never had any trouble with her in any way. Her sheep outfit was run as well as the average. Testatrix made the final decision on all matters pertaining to her ranch and sheep even when Elmer G. Peterson was foreman. All the time witness knew testatrix she was perfectly normal; she was competent; she knew her property and was not insane. Never heard of anybody trying to get her to do anything. Mrs. Lora Crone, an adjoining neighbor, called on testatrix frequently since 1946. Testatrix was very sociable and always enjoyed a good visit. She was alert and definitely knew what she was doing and was her own business manager. The witness Ault, also an adjoining rancher, testified he had known testatrix since 1917 and she was always competent. He never saw Elmer G. Peterson try to influence her in any way. He would not say she was peculiar in any way other than what any of us might be under the same circumstances she was and the way she was crippled. She had no peculiarities mentally. Gertrude Anderson, apparently living at Walcott, visited back and forth with the testatrix. Testatrix did not dress any differently than anybody else. Witness never saw any one that was any more normal than testatrix was. She was sane, her memory was good. The witness Williams had known her since 1930 and testified that testatrix absolutely knew what she was doing. She had a good memory. *460 There was not a bit of change in her mental condition from the first time he met her until the last time he saw her before her death. The witness Shupp had known her since 1939. Shortly before testatrix died her mental condition was very good, she was elert. Testatrix seemed to think that Ellen Kastner did not seem to like her. She seemed to be well educated and had a good memory. Sarah Comstock knew testatrix since 1930 and up to the time of her death testatrix was competent and knew what she was doing. She was happy all the time and jolly. She treated everybody right. She had a wonderful memory. She always was the boss of her outfit, and she gave the orders. Nellie Parker knew testatrix for more than twenty years and worked for her part of the time. Witness made many dresses for the deceased and testatrix always had good clothes. Her mental condition in July 1951 was fine. She was keeping the time of the men working for her and she was very competent. Witness did not notice any change in her mentality from the first time she knew her until the last time. Testatrix had a wonderful memory. She knew every Mexican man and she knew every horse on the place by name. Mrs. Gray testified that she knew testatrix since 1948. Testatrix was her own boss at all times. She gave Elmer Peterson orders lots of times. Testatrix was very intelligent, she was sane and had a wonderful memory.

We are somewhat at a loss to know how counsel for contestants, in view of the foregoing testimony, find much evidence of the susceptibility to undue influence on the part of the testatrix. Counsel rely in the main on her physical condition, which, may, or may not seriously affect mental condition to the point of susceptibility to undue influence. In the case at bar the negative seems to have been true, although we have no doubt that the physical ailment had some effect and *461 made her somewhat different than she would have been in the absence thereof, and evidently caused some people to consider her erratic and eccentric. Counsel also rely on her want of neatness and modesty. However, it could hardly be expected that a woman married for many years, living on a ranch, afflicted physically as she was, would be as neat and tidy and modest as a young and blushing bride. That she was seen in the nude is not quite as shocking as counsel would have us believe, in view of the fact that it was difficult for her to move about and lower her shades, let alone the fact that one ordinarily does not expect another to peep into his windows. That she engaged a Mexican to help her in taking baths may have a number of explanations. Testatrix is not here to defend herself. It shows, if nothing else that testatrix was not as dirty as it is sought to have us believe. That she shouted and pounded the table in the office of Clarence Brimmer doubtless embarrassed him. But doing so is not altogether unknown, without showing any deterioration in mentality. We must make allowances for the differences in human nature.

It is said in 1 Page on Wills, § 148, p. 303 (Lifetime Edition): “Eccentricity has no effect on testamentary capacity; and the will of persons who are highly eccentric, and in some cases eccentric to the verge of insanity, have been upheld. * * * The fact that the testator was filthy, forgetful, and eccentric, or that he was miserly and filthy, * * * or that he was filthy, frequently refused to eat, and would lie in bed with his clothes on * * * or that he was inattentive * * * does not establish lack of capacity.”

We think that a like rule applies in so far as undue influence is concerned. It is pointed out that a contract of employment entered into between testatrix and Elmer Peterson in 1951 provides that Elmer would *462 manage the ranch in view of the fact that testatrix had become physically incapable of managing her property. So counsel argue that this shows that she had a weakened mentality. We do not think that is necessarily true. There is, or may be, a marked difference between mental and physical infirmity. Taking the testimony as a whole, we get the impression that testatrix, particularly in view of her physical condition, was a woman of vigorous and unusually strong character mentally; that she knew all of her property and relatives; that she was bright, alert, fully cognizant of everything about her, running her own business and that with great intelligence; that she was not easily influenced by anyone against her wishes. The detailed testimony of A. R. McMicken, Eph Johnson, John W. France and Dr. McNamara who were present at the time of the execution of the codicil — two of them witnesses thereto — seems rather persuasive that at that time the testatrix did not have a weakened mind and that she executed the codicil as her free and voluntary act without any compulsion. It is difficult to see, in view of the overwhelming evidence in this case, how the jury could have come to a different conclusion. But, even if it were assumed that testatrix was susceptible to undue influence, that fact would be wholly immaterial herein unless it were connected up by evidence of actual undue influence exercised upon her — a point that will be considered presently.

2. Unnatural will.

Contestants claim that the will in question makes an unnatural disposition of the property of the deceased. The second class of evidence introduced in the case bears on that point. The property was inventoried at about $640,000. It is common knowledge that livestock interests have suffered severely in the last two years or more. We do not know the percentage. Let us say 80%. *463 The ranch is mortgaged for $80,000. Federal estate taxes will amount to about $150,000. Current debt was shown at $5,000. A claim of $21,000 was filed by Brim-mer and Bible. Then there are to be paid fees for the executor and attorneys. If the testatrix had disposed of her property fairly equally among her relatives, it would, of course, have been absolutely necessary to sell the ranch property, and that is probably, judging from the record as a whole, the last thing which the testatrix would have wanted. It was not an unnatural wish to prevent the property from falling into the hands of strangers, and Elmer Peterson is the only near relative able to take over the ranch and run it. Furthermore, Elmer Peterson is the son of the favorite brother of testatrix (the brother Elmer died in 1933). Elmer, himself, worked on the ranch when but a boy commencing about 1934 and did so for a number of years. The testatrix being without children herself not unnaturally became fond of the boy preferring him to all others and making him, in her judgment, the main object of her bounty. We said in the case of In re Johnston’s Estate, 63 Wyo. 332, 181 P. (2d) 611, 616, quoting from In re Miller’s Estate, 10 Wash. (2d) 258, 116 P. (2d) 526, 531, as follows: “ ‘A will is unnatural when it is contrary to what the testator, from his known views, feelings and intentions would have been expected to make. If the will is in accordance with such views it is not unnatural however much it may differ from ordinary actions of men in similar circumstances’.” See also In re Lavelle’s Estate, Utah, 248 P. (2d) 372. In view of her relation to Elmer, the will, it would seem, was in accordance with her views, feelings and intentions.

So we shall consider the other relatives. In February 1951, testatrix bought, it seems, a Financial Industrial Fund of $12,000, the beneficiaries of which are the *464 three children of Ellen Kastner, sister of testatrix, along with Elmer and Rogene Peterson. Her brother Hugo died in 1948. She had loaned him the sum of $2,000 to buy an interest in the ranch. They did not get along well. He had broken or twisted her wrist in a quarrel. She bought him out at $60,000. The minor son of Hugo had at least $86,000. So that as far as they are concerned, the will cannot be said to be an unnatural one. The deceased had a living mother, nearing 80 years of age, when the will of 1944 was made and about 85 years old when the codicil of 1951 was made. Testatrix loved her mother. Not much is known as to how the mother lived for a number of years. She acquired a house in Rawlins in 1923, worth about $8,000 to $10,000, which she deeded to her daughter Ellen Kastner in October 1943, but which was recorded much later. She received some $11,000 in 1948 as the result of an insurance policy in her favor and which was invested in Government bonds. She also had a limited number of shares in the Financial Industrial Fund. So far as we can tell from the record, she had an income of $720 from rentals in 1951 besides some other small income. We find in the record that in 1942 testatrix paid her mother $600; in 1944, $300 and in the same year an additional $600. These sums were paid for wages. It can hardly be said with counsel for contestants that testatrix disinherited her mother. She made a provision in the will, kept intact by the codicil, to the following effect: “I hereby order and direct that my executor hereinafter named, during the administration of my estate, shall see that my Mother, Alma A. Peterson at all times is provided for and at no time shall be in want of food, clothing, shelter, medicines, medical, hospital and nursing care and attention and I do give for said purposes the money needed in providing for the same. I do further request that if no provision is hereafter made for the care and maintenance of my *465 Mother after my estate is closed and settled, that then my nephew Elmer G. Peterson personally assume said obligation and at all times see that her needs are provided for.” It is not claimed that this provision is not enforceable. We hardly think that in view of the advanced age of the mother, the provision of the will in her favor was inappropriate and showed a lack of love and respect.

Rogene Peterson, sister of Elmer, was left $20,000 in the codicil. She is not complaining. So that leaves for consideration Ellen Kastner, sister of the deceased. The latter testified at length to the effect that she was at all times on a sisterly footing with the testatrix. It may be admitted for the purpose of this case that she was fairly friendly with testatrix at all times although the record shows that the testatrix was not particularly fond of Ellen. The latter was out of the state for many years and did not come to Rawlins until 1940. Her children, so far as the record shows, paid no attention to the testatrix and the latter complained that Ellen did not pay her very much attention and in fact feared, as turned out to be true, that Ellen would attempt to break her will. Ellen Kastner was not penniless. She had property when testatrix died valued at some $14,000 in addition to the house which she received from her mother. In 1951 she had an income of $2,240 as salary; $1,000 received as support payments from the Veterans Administration; $600 from the Red Cross; $1,494.56 income from a Financial Industrial Fund, a total of about $5,400 in addition to some other small income. She was made the residuary legatee in the will, and might, according to counsel for appellants under favorable circumstances, receive approximately $19,000. They say, however, that she may not receive anything, since the residuary estate could, under the will, be used in running the sheep. We do not know *466 that to be true. In any event testatrix remembered her sister and showed her good will toward her. There was no duty on testatrix to make an equal division of her property among her relations. Thomas v. Thomas’ Adm’r. 258 Ky. 236, 79 S.W. (2d) 982.

These facts must be considered in the light of the rules of law applicable on the subject before us. In re Johnston’s Estate, supra, we upheld a will which disinherited a sister in favor of a stranger. The court in the case of In re Goist’s Estate, 146 Neb. 1, 18 N.W. (2d) 513, 521, 522, quoting from a previous case stated as follows: “ ‘No right of the citizen is more valued than the power to dispose of his property by will. No right is more solemnly assured to him by the law. Nor does it depend in any sense upon the judicious exercise of that right. It rarely happens that a man bequeaths his estate to the entire satisfaction of either his family or friends. The law wisely secures equality of distribution where a man dies intestate, but the very object of a will is to produce inequality * * *. In this country a man’s prejudices form a part of his liberty. He has a right to them. He may be unjust to his children or relatives. He is entitled to the control of his property while living, and by will to direct its use after his death, subject only to such restrictions as are imposed by law. Where a man has sufficient memory and understanding to make a will, and such instrument is not the result of undue influence, it is not to be set aside without sufficient evidence, nor upon sentimental notions of equality. * * *’ Isaac V. Halderman, 76 Neb. 823, 107 N.W. 1016, 1019.” In 57 Am. Jur. § 150, p. 136, it is stated as follows: “In modern times, unless a statute otherwise provides, or there is a binding contract to the contrary, a testator with the requisite capacity, observing the formalities prescribed by statute for the execution of wills, may disinherit his children or other per *467 sons who would take his estate by descent in case of intestacy, without mentioning them or disclosing a reason for not favoring them with a bequest. Next of kin and relatives, no matter how near they may be, cannot be said to have any natural right to the estate of the testator which can be asserted against the legally executed will of the latter. A father may exclude his son from all share in his estate provided the estate is given to someone else.” In 1 Page On Wills, supra, pp. 73, 74, 75, 76, the author states: “The fact that the will is unjust and unnatural does not render it invalid. In the absence of specific statutory restrictions, testator may alter the statutory course of descent without rendering his will invalid, and may disinherit those who would take by descent if it were not for such will, such as children, acknowledged illegitimate children, although by statute they would take by descent in case though by statute they would take by descent in case of intestacy, adopted children, grandchildren, or brothers and sisters, or nephews and nieces, or parents, no matter how unjust his exclusion of his hears may be; and he may give all his property to a stranger to his blood.” In the case of In re Hill’s Estate, Oregon, 256 P. (2d) 735, 738, the supreme court of Oregon states: “Many a contestant’s high hopes, destined to disappointment, spring from a carelessly bandied.use of that' phrase which refers to them as the ‘natural objects of the testator’s bounty.’ Too many seem to garner therefrom a rule of law not present nor to be implied. It confers no inferential rights, nor indeed any rights, to take from one dying testate. It compels no duty upon the part of a testator to make any provision for those comprehended by its words.”

We recognized the rule above stated in In re Lane’s Estate, 50 Wyo. 119, 58 P. (2d) 415, and in Branson v. Roelofsz, 52 Wyo. 101, 70 P. (2d) 589, although on *468 account of the peculiar facts in that case, we held that it was not error to refuse an instruction stating the rule above mentioned without qualification.

3. Exercise of undue influence.

We now come to the most fundamental question in the case, namely, whether or not undue influence was exercised upon the testatrix by Elmer G. Peterson as claimed by the contestants. Unless such influence was actually exercised, it would be immaterial as to whether or not the will disposed of the property in an unnatural manner, in view of the fact, as heretofore stated, that it is admitted the testatrix had testamentary capacity. In connection with the will of 1944, it appears that Elmer Peterson drove the testatrix to the office of Clarence Brimmer. She was unable to climb the stairs to go to the office of the attorney. So Clarence Brimmer was summoned to go down to the automobile in which the testatrix was seated. He did so and no one else was present when the testatrix told Clarence Brimmer of what provisions she wanted to make in the will. The will was drafted subsequently by Mr. Brimmer and he and some witnesses drove to Walcott the next day where the will was duly executed at that time and Elmer Peterson was not present. In this connection, counsel for appellants say that there is testimony that it was the influence of Elmer Peterson which brought about the will of 1944, in view of the fact that Ellen Kastner testified that she saw testatrix in front of the bank and that at that time testatrix told her that Elmer had insisted upon her making a will before she left for Excelsior Springs, Missouri. Ellen Kastner was not corroborated in this by Clarence Brimmer as she should have been if her testimony is true, and she was contradicted by Elmer Peterson who in turn was corroborated by Sarah Comstock. However that may be, it does not appear that Elmer insisted upon any particular *469 provisions in the will and simply to suggest or insist that a testator should make a will would seem to be of little if any importance. In any event, the testimony was incompetent to prove that any actual influence was exercised by Elmer Peterson, since it was not a part of the res gestae. 6 Wigmore on Evidence, 3rd Ed., § 1738. 2 Page on Wills, § 848, p. 672, and numerous cases cited. In re Gleason’s Estate, 164 Cal. 756, 130 P. 872, 874, the court stated: “The external facts constituting the exercise of undue influence must be established by other evidence than the declaration of the testator. His declarations are incompetent to show either that the influence was exercised, or that it affected his actions, and are inadmissible, except as they may illustrate his mental state, * * *. His statement of the effect that an act or suggestion of another produced upon him at some previous time is, however, only hearsay.” See also Scott v. Townsend, 106 Tex. 322, 166 S.W. 1138, 1145.

The codicil of 1951 was drafted by A. R. McMicken, who was employed as the attorney for testatrix as early as November 1950 in connection with the claim of Brimmer and Bible. He knew nothing about her will until about March 9, 1951, when Joe Collins, an employee of testatrix, brought him the will of 1944, having obtained it from Clarence Brimmer, who had had the custody of it till that time. Joe Collins told Mr. Mc-Micken that testatrix wanted to see him to get him to persuade Elmer Peterson to return to her employ. Mr. McMicken thereafter went to see testatrix at her ranch, and talked about Elmer returning as mentioned. She then told Mr. McMicken that she wanted to make some changes in her will. The codicil was drafted with a great deal of care, and after the changes had been talked over in detail during a whole day’s conference. Mr. McMicken and testatrix were alone. The return of Elmer to her employment was also discussed. Elmer *470 had quit his employment with testatrix in the fall of 1949 on account of the fact that testatrix was not paying him sufficient salary. He thereafter went into business for himself, running a filling station and made in the neighborhood of $11,000 per annum. Testatrix wanted him to come back into her employment and he hesitated to do so and several times refused to enter into a contract of employment. But he finally met with testatrix and Mr. McMicken and it was agreed that he should re-enter the employment of testatrix as manager at a salary of $500 per month plus 20% of the profits. But after again talking with his wife, he again refused to sign the contract drafted by Mr. McMicken. The latter informed the testatrix of that refusal at the time when the codicil was signed and he told testatrix at that time she could change the provisions of the will and codicil about leaving anything to Elmer Peterson. Testatrix stated that she wanted him to have the ranch and would not make any changes but asked Mr. Mc-Micken to see Elmer again and persuade him to change his mind. After the codicil was executed, Mr. McMicken stopped at Elmer’s filling station and persuaded Elmer to sign the contract prepared by him.

Counsel for contestants say that undue influence on the part of Elmer might be inferred from the .fact that he signed the contract for re-employment within an hour after the codicil was executed. They say: “The jury, under proper instructions, might well have found that Elmer brought about the Codicil also by insisting that it be done prior to the time he would go back to work for his aunt on the very ranch which under the provisions of the Codicil was to become his upon her death.” We find no evidence to that effect Elmer Peterson had, about 1945, been informed of the 1944 will and the provisions therein in his favor, so that there was no necessity so far as we can see for him to *471 wait until the codicil had been signed, unless, perchance he was afraid that she might change her will. But according to Mr. McMicken he did not know that she was executing a codicil. If it can be said that any influence was exercised by one person upon another in this connection, it would seem that it was exercised on the part of testatrix, through Mr. McMicken, upon Elmer Peterson rather than the reverse. Mr. McMicken testified as to what took place when he stopped to see Elmer after the codicil was executed. That testimony is as follows:

“Q. What did you say to him? A. Well, I told him, ‘Your aunt sent me back again now to see if you would sign this contract.’ I told him she said she wanted him. I told him again, as I previously stated, that I thought he owed it to her, she was — that he was the. only male relative she had to run this outfit and if he didn’t take over pretty quick it would go to pieces. We discussed it for quite a while and he didn’t want to go, and so on. I told him that she had given him everything that he had asked for and I thought the contract was fair. I made this further remark that, ‘You can’t stay at this filling station forever, you got these two little baby girls and you are going to have to get them in school, and I don’t think your environment is right, you are selling beer over this counter. I think you are going to have to move and I think this would be a good time for you to make a change.’ I got him to sign the contract and I filled in the date, the 25th, and he signed his name under each of three of them where Mrs. Nelson had signed it, and I left him the original, went back out to the car and went to Rawlins.”

Counsel for contestants say that there is a suspicious circumstance in this case in that Elmer did not immediately advise the mother and sister of testatrix of the *472 serious condition of the testatrix when she died on September 2, 1951. And that the mother and sister did not hear of her death until the next morning through the hired help at the ranch. We cannot see the force of the argument. The testatrix became seriously ill on the evening of September 1, 1951, and Elmer immediately called Mr. McMicken and asked him to send a doctor to take care of testatrix. That was done. To summon the doctor was the important thing at the time. Counsel ask the question: “Is such conduct in keeping with a clear conscience and a feeling free from wrong-doing on the part of Elmer?” We must confess we do not understand how the matter just referred to has anything to do with any undue influence exerted by Elmer Peterson, as claimed.

Counsel say that a further suspicious circumstance is that Elmer was the only one of the lawful heirs of the testatrix who knew what was in the will, and he knew it in 1945. Counsel think that he ought to have informed the other heirs. It seems that Clarence Brim-mer informed Elmer of the fact that the ranch interests were left to him. Why he should have informed the others is not at all clear to us. For aught that he may have known, Mr. Brimmer might have informed the other heirs of the contents of the will just as he informed Elmer Peterson.

Counsel for contestants also claim that the matter of the witnesses to the codicil creates doubt. Just in what connection they do not say. Apparently they refer to the fact that Dr. McNamara was summed to see the testatrix at the time when the codicil in question herein was executed. The explanation of that is very simple. The testatrix had told Mr. McMicken to attend to the matter of the exercise of the codicil as she feared that Ellen Kastner would attempt to break her will. So it *473 was the suggestion of Mr. McMicken, agreed to by the testatrix, that in order to put her mental capacity beyond any question, a physician should be summoned to examine her for the purpose of determining whether or not she was a competent person to execute the codicil. Under the circumstances there was nothing peculiar or strange that Dr. McNamara examined the testatrix before and at the time that she executed the codicil. According to the testimony of Mr. McMicken, Elmer Peterson knew nothing about the codicil and he was not present when it was signed. It was executed in the presence of Dr. McNamara and John W. France as well as Eph Johnson and Mr. McMicken, all of whom testified that she was competent to execute the codicil, and knew what she was doing. The witness France testified among other things: “She mentioned that she knew entirely what she was doing, and that she was acting under no duress or anything of that nature.” That statement was made as part of the res gestae. We are unable to find any evidence in the case which tends to show directly or indirectly that any undue influence was exercised by Elmer Peterson in connection with the original will in 1944 or the codicil of 1951. Counsel for contestants, however, contend that the jury could have found the existence of undue influence by reason of a presumption arising from a combination of facts as stated in Instruction B, asked by them, but refused by the court. It is, therefore, necessary for us to examine that instruction and determine whether or not it was error not to give it.

4. Instruction on presumptions.

Counsel for contestants asked the court to give the following Instruction B.

“You are instructed that if you find a confidential relation existed between the testatrix and Elmer Peter *474 son no presumption of undue influence is raised and the burden of proof is not shifted by the mere fact that a beneficiary under the Will occupies as regards the textatrix a confidential or fiduciary relation such as that of a business manager .However, if, in addition to a confidential relation between testatrix and Elmer Peterson, you should further find that there exists suspicious circumstances such as the fact that the beneficiary took part in the procuring of the Will or that the testatrix was weak-minded or in frail health and partly susceptible to influence, or that the provisions of the Will are unnatural and unjust, then you are instructed that undue influence is presumed and the burden of proof shifted to the contestees to require the beneficiary to produce evidence which at least balances that of the contestant.”

The court refused to give that instruction, but instead gave Instruction No. 9 reading as follows :

“In determining whether or not any undue influence was exercised over the testatrix on December 28, 1944, or on March 25, 1951, you may consider, among other things, the following factors:

(a) Whether or not the person or persons claimed to have exercised undue influence were in confidential or fiduciary relationships such as employee, business manager, and the like, and in addition thereto

(b) Whether or not the testatrix was weak-minded, or in frail health, or particularly susceptible to undue influence, or

(c) Whether or not the provisions of the Will are unnatural.”

It may be noted that the court in its instruction mentioned the same elements of influence as Instruction B. The objection made by contestants is that the court did not go far enough, but should have stated, as in the *475 asked instruction, that if the elements existed, then it followed as a matter of law that a presumption of undue influence existed which had to be met by evidence to put the presumption in equipoise.

The instruction is based, in the first place upon the assumption that a confidential relationship existed between the testatrix and Elmer Peterson. We doubt that the evidence warrants such finding even as to the will of 1944. It is held in Hyde v. Norris, 250 Ala. 518, 35 So. (2d) 181, that the confidential relationship must be a dominant confidential relationship. Blood relationship is not in itself a confidential relation. 57 Am. Jur. 287. In re Lawrence’s Estate, 286 Pa. 58, 132 A. 786, it was held that where a brother was the main beneficiary and he managed the farm of testator, but the latter looked after his own wants, even active participation in the making of the will did not cast on the beneficiary the burden of showing lack of undue influence as it would in the case of a stranger. In re Douglass’ Estate,