In re Estate of Dovey. parties is as to whether the execution of the will was brought about by undue influence. The first assignment of error is that the court erred in permitting several witnesses for the proponents to testify as to the mental capacity of Mrs. Dovey to make the will. At the trial the contestants admitted that Mrs. Dovey was mentally competent to make a will at the time the instrument was executed, hence this complaint was waived. Moreover, there is ample testimony on this point to support the will. The second assignment of error is that the court erred in refusing to permit the contestants to prove by Mr. Walling that the will was not read to Jane A. Dovey. This exclusion was on cross-examination. The witness had just testified twice on direct examination that the will was not read over to her before she signed it, and that all he knew about it was that she made the statement that she had read it. The third assignment of error is that the court erred in admitting the will without the attesting clause. Since the proof of execution was sufficient otherwise, this was not essential. Monroe v. Huddart, 79 Neb. 569. The fourth and sixth have reference to the exclusion of evidence. The same facts were established by other testimony, and there was no prejudicial error in the rulings complained of. It is complained that the court erred in refusing an instruction to the point that undue influence may be exercised by one not a beneficiary under the will. Instruction No. 9 expressly told the jury: "Proof of undue influence may be circumstantial and inferential, and the influence may be that of a third person as well as that of a direct beneficiary under the proposed will, or by both in conjunction." There is no ground, therefore, for this complaint. It is insisted in assignment No. 10 that the court erred in its instructions Nos. 7 and 8, relating to what constitutes undue influence and the degrees of evidence necessary to sustain the charge of undue influence. In re Estate of Dovey. The seventh and eighth assignments of error are that the court erred in withdrawing from the jury by. oral and written instructions statements and declarations of Mrs. Jane A. Dovey that she had not made and did not intend to make a will. That George E. Dovey himself placed little weight upon these declarations is evidenced by the fact that before this will was executed he endeavored to procure a will drawn by his own attorney to exclude his brother Oliver from a share in the estate, to be executed by his mother. This will was given to Horatio to be presented to her. This he never did. While we are satisfied the evidence might properly have been received, it was so remote in point of time that its admission or rejection lay within the discretion of the district court, and it was not prejudicial error to withdraw its consideration from the jury. Counsel for appellant are in error with respect to the scope of the instructions. The court did not withdraw from the jury the declaration, which George testified was made in May after the will was signed, to the effect that she had signed her name to all the papers she was going to sign. In cases of this nature declarations made by the testatrix within a reasonable time prior or subsequent to the making of the will, material to the inquiry, may be considered upon the question. of undue influence. We are satisfied that no error would have occurred if this testimony had been admitted in the discretion of the district court, but we are also satisfied that no prejudicial error occurred by its exclusion. The proof shows that these remarks were made more than four years before the will was executed, and before controversy and litigation arose between the three sons arising out of their relations as partners in the business of E. G. Dovey & Son. It was after this time that the relations between Oliver and his brothers George and Horatio became strained and dissension arose. Under the circumstances it is not strange that Mrs. Dovey changed her mind. The fact alone that she In re Estate of Dovey. devised her property to her two grandsons, for whom she had love and affection, was not an unnatural or unusual disposition of her property, or enough to convince an unprejudiced mind that the will was the result of undue influence. After stating that the contestants alleged that there was undue influence used upon Mrs. Dovey, which resulted in her signing the proposed will, against her intention and against her real wish and will, and that it devolved upon the contestants to so prove by a preponderance of the evidence, before the jury would be warranted in finding the proposed will invalid for that reason, the court said in instruction No. 7: "In this connection you are instructed that the term 'undue influence' means such influence as compels or induces a person to do that which is against her real wish and desire, either from fear, desire for peace, or from some feeling which at the time she is not able to control. What would amount to undue influence in one case and vitiate a will of a testatrix would not necessarily be so considered in another case. In that regard every case stands or falls upon the peculiar facts and circumstances surrounding it, as the same may be established by the evidence. In any case, however, the undue influence necessary to vitiate a will must be such as to amount to moral force destroying the free agency of the testatrix and substituting another person's will for her own. There must be proof that the purported will was obtained by such undue influence and that the circumstances of its execution are inconsistent with any other hypothesis but undue influence." Instruction No. 8 is as follows: "You are instructed that not all influence exerted upon a testatrix on the making of her will is undue or unlawful. Lawful influence arising from legitimate family and social relations may produce irregularities in the disposition of property which may work an apparent hardship, but neither advice, argument or persuasion so bestowed will avoid a will made freely and from convictions held 101 Neb.-2 In re Estate of Dovey. by the testatrix, although such convictions be the result of such advice, argument or persuasion. To render influence undue it must subvert the free agency of the testatrix." It is strenuously insisted that instruction No. 7, in so far as it states that "undue influence necessary to vitiate a will must be such as to amount to moral force destroying the free agency of the testatrix and substituting another person's will for her own," and that "there must be proof that the purported will was obtained by such undue influence and that the circumstances of its execution are inconsistent with any other hypothesis but undue influence," is an erroneous statement of the law. It is conceded that these ideas are first found in the jurisprudence of this state in Latham v. Schaal, 25 Neb. 535. It is said that the language is found in the syllabus and not in the body of the opinion, and was, therefore, prepared by a reporter and not by the court. But the reporter's note at the beginning of the volume states that the syllabi in this volume were prepared by the judge writing the opinion, in accordance with rule 18, and the practice of this court for very many years has been to make the syllabus as much the decision of the court as the opinion itself. Like statements of the law in instructions were approved in Seebrock v. Fedawa, 30 Neb. 424, 437, opinion by Norval, J., and cases from Wisconsin, Ohio, New York and Michigan are cited in the opinion to sustain the proposition; in Boggs v. Boggs, 62 Neb. 274, opinion by Pound, C.; in Stull v. Stull, 1 Neb. (Unof.) 389, opinion by Oldham, C., and in concurring opinion by Pound, C., p. 399; and in Spier v. Spier, 99 Neb. 853. Practically the same theory is stated in Knox v. Knox, 95 Ala. 495. And in Schieffelin v. Schieffelin, 127 Ala. 14, an instruction that, in order "to set aside a will of a person of sound mind for having been obtained by undue influence, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue in In re Estate of Dovey. fluence," but "it must be shown that they are inconsistent with a contrary hypothesis, and the undue influence exercised in relation to the will itself," was held proper. There can be no doubt that, where there is testamentary capacity, a finding that undue influence has been exerted will not be supported merely by evidence that some person had an opportunity to exert or was possessed of influence over the testator. It must be made to appear, where there is no express evidence, by a justifiable and fair inference from the facts proved that such influence was exerted so as to dominate and control the will of the testator, and caused a testamentary disposition to be made of his property other than that which he would have made if uninfluenced. An inference of undue influence which induced the testator to do that which he would not otherwise have done must be established by a preponderance of the evidence and must exclude any reasonable inference. Schuchhardt v. Schuchhardt, 62 N. J. Eq. 710. Almost the exact language of the instruction complained of was used by the Lord Chancellor in Boyse v. Rossborough, 6 H. L. (Eng.) *2, *50. In Latham v. Schaal, supra, the language is credited to the case of Maynard v. Vinton, 59 Mich. 139. In a later case, Bush v. Delano, 113 Mich. 321, it is said that this language stated an incorrect rule, that the proof to establish undue influence need only amount to a preponderance of the evidence. A Missouri case is to the same effect. Gay v. Gillilan, 92 Mo. 250. We are content to abide with the law as formerly announced, and hold that the instruction is not erroneous as applied to the facts in this case. It is contended that the fact that the execution of this will was kept a secret from the sons of Mrs. Dovey until after her death is a strong indication of the exercise of undue influence. E. G. Dovey testifies that he saw the will prepared by an attorney at the instance of George E. Dovey and delivered to his father, |