The opinion
Buford, J., dissenting
It appears to me as being uncontroverted that Dr. McRae occupied the most confidential relations, possible between two men, with
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the testator; that the uncontradicted evidence shows that Dr. McRae initiated the proceedings for the preparation of the will by procuring a lawyer of his own choice, who was unacquainted with the testator, to go to the bedside of testator and get directions for the drafting of the will with the understanding that he, McRae, was to be thereby bequeathed a large share (one half) of testator’s estate. The burden therefore to establish the absence of undue influence was then on the legatee. 28 R.C.L., pg. 146, Bancroft v. Otis, 91 Ala. 279 , 8 So. 286 , 24 A.S.R., 904. The contestants carried the burden of showing the facts upon which the law prima facie presumes the exertance of undue influence. The correct rules as to burden of proof was not applied in the courts below. The judgment should be reversed.
Adams, J. concurs.