Matter of Ferrill ( 1981 )

OPINION

LOPEZ, Judge.

Joe Thorp, a legatee under the July 12, 1979, will of Hazel Cash Ferrill, appeals the judgment of the district court denying admission of this will to probate. A jury of six had found the will to be invalid as a result of undue influence exerted on the decedent by Mr. Thorp.

Eight points are raised on appeal. They fall into four broad categories as follows: 1) whether there was substantial evidence to support the judgment; 2) whether the case should have been tried to a jury, and especially a jury of six; 3) whether certain testimony should have been excluded; and 4) whether the court erred in certain jury instructions given and refused. Finding no error, we affirm the judgment of the district court.

Hazel Cash Ferrill died on December 18, 1979, at the age of 82. She suffered from cancer the last fifteen or sixteen months of her life and at various times during this period underwent various treatment for it. Joe Thorp and his wife, Billie, worked for Phillip McKee, a neighboring rancher. Beginning in May, 1979, the Thorps began to help care for Hazel and her sister, Beulah, who lived with her. Both women moved into a house on McKee’s ranch for a time that spring. In part of May and June, the Thorps took care of Beulah when Hazel was in Albuquerque undergoing chemotherapy treatments, and helped Hazel when she was not in the hospital. In July 1979, while in the hospital for more treatments, Hazel executed a will disinheriting her family and leaving substantially her entire estate to the Thorps. Her grandson, Don Cash, contested the admission of the will to probate.

I. Substantial evidence of undue influence.

Mr. Thorp argues first that there was no evidence of undue influence and that, consequently, the court erred in refusing to grant him a directed verdict. His second argument is that, even if there was some evidence going to the contestant’s claim, there was not substantial evidence to support the verdict. We condense these arguments into one and address the question of whether substantial evidence of undue influence was presented at trial. Since we conclude that there was substantial evidence on which to invalidate the will, it is clear that the judge did not err in refusing to direct a verdict for the proponent. It is irrelevant if the judge misstated the grounds at the time of denying the motion. See, In re Will of Skarda, 88 N.M. 130, 537 P.2d 1392 (1975).

In considering the evidence, we are mindful that presumptions are in favor of verdicts, that we are to view the evidence in the light most favorable to the prevailing party, and that we are to disregard all inferences or evidence to the contrary. Anaconda Co. v. Property Tax Dept., 94 N.M. 202, 608 P.2d 514 (Ct.App.1979) cert. denied, 94 N.M. 628, 614 P.2d 545 (1980). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate support for a conclusion. Id.

Undue influence has not been specifically defined in New Mexico. Our Supreme Court wrote in 1949:

We make no attempt to define “undue influence”. Neither is it susceptible of any fixed formula. Whether undue influence is present is always a question to be determined from the circumstances of the particular case, and any attempt to define it may well suggest a clear path of evasion. But, undue influence in the sense as used means influence, improperly exerted, which acts to the injury of the person swayed by it or to the injury of those persons whom she would have benefitted. It is immaterial whether such influence is exercised directly or indirectly.

Brown v. Cobb, 53 N.M. 169, 172, 204 P.2d 264, 266 (1949). Generally, undue influence is not proven directly, but is inferred from the circumstances. Galvan v. Miller, 79 N.M. 540, 445 P.2d 961 (1968); Hummer v. Betenbough, 75 N.M. 274, 404 P.2d 110 (1965); Calloway v. Miller, 58 N.M. 124, 266 P.2d 365 (1954); Trigg v. Trigg, 37 N.M. 296, 22 P.2d 119 (1933); Cardenas v. Ortiz, 29 N.M. 633, 226 P. 418 (1924). A presumption of undue influence arises if there is shown to be a confidential or fiduciary relation between the primary beneficiary and the testator and if suspicious circumstances are also shown. Hummer, 94 C.J.S. Wills § 239 (1956). Á confidential or fiduciary relation exists “whenever trust and confidence is reposed by one person in the integrity and fidelity of another.” 94 C.J.S. Wills § 230 at 1078 (1956), quoted in Hummer, 75 N.M. at 280, 404 P.2d at 114. Some of the circumstances which courts have found suspicious in cases where a will was contested on the grounds of undue influence are: 1) the testator is old and in a weakened physical or mental condition; Galvan; Hummer; Ostertag v. Donovan, 65 N.M. 6, 331 P.2d 355 (1958); Cobb; Cardenas; 2) there is a lack of consideration for the bequest; Ostertag; Cobb; Salazar v. Manderfield, 47 N.M. 64, 134 P.2d 544 (1943); Cardenas; 3) the disposition of the property is unnatural or unjust; see, Hummer; see, generally, Galvan; Ostertag, 4) the beneficiary participated in procuring the will; Galvan; Hummer; and 5) the beneficiary dominated the testator. Galvan.

Having examined the evidence in the light most favorable to appellee, we find there is substantial evidence of a confidential relation between Joe Thorp and Hazel Cash. The evidence is uncontradieted that Hazel trusted Joe and thought very highly of him. This relation of trust began in the late spring of 1979 and continued until Hazel’s death in December of that year. As the relation progressed, Hazel turned the handling of her affairs more and more over to Joe Thorp, and, in November, she signed a power of attorney in his favor. We do not agree with Thorp that there is no evidence that this confidential relation existed on July 12, 1979, the day the will was signed. Hazel and her sister, Beulah, resided at the McKee ranch during part of May and June, 1979, where the Thorps devoted much time and attention to them. The jury could reasonably infer that the confidential relation began at this time. Moreover, Hazel asked that Joe be present when she signed the will, a further indication that, by that time, she trusted him concerning her most important affairs.

There is also substantial evidence of several suspicious circumstances which, together with the existence of the confidential relation, would give rise to a presumption of undue influence. 1) Hazel was old and sick. She was 82 when she died. The last year of her life, during the time she became attached to Joe Thorp, she was suffering from cancer. In the spring of 1979, she began chemotherapy treatments. By May 1979, her condition was detriorating; she suffered from pain, and lack of oxygen, was weak, irritable, and needed help in caring for Beulah and the ranch. Dr. McCullough, a psychiatrist, gave his opinion that Hazel would have been susceptible to undue influence at the time the will was signed due to her physical and mental condition. 2) The evidence indicated that the value of the ranch left by Hazel to the Thorps was between $875,000.00 and $1,000,000.00. Although they were a great help to her in the last months of her life, they were being paid at that time by Phillip McKee who had asked them to help Hazel. The jury could have found there was inadequate consideration for Hazel’s bequest. 3) Don Cash, Hazel's grandson, was raised by Hazel as a son. During his childhood, he helped her by working in the bars she ran, working in her nursing home, and at the ranch. In October and November of 1978, she and her sister lived with Don and Marie, his wife. During this time, Marie drove her to Albuquerque for daily radiation treatments. In a will Hazel made in September 1978, before she became acquainted with the Thorps, she left most of her estate to Don. From the evidence, the jury could have concluded that the disposition of the will was unnatural or unjust. 4) Joe Thorp’s presence at Hazel’s bedside when she signed the will is not in itself a suspicious circumstance. In listing suspicious circumstance, C.J.S. states:

“[N]o presumption of undue influence will be raised where the activity of the beneficiary in the * * * execution of the will was in compliance with the request of the testator.”

94 C.J.S. Wills § 239 at 1096 (1956). The evidence indicates that Joe was present because Hazel asked that he be there. While by itself, his presence at the execution of the will would not be sufficient to raise a presumption of undue influence, it is further evidence that Hazel trusted him and that the confidential relation between the two was established by the time the will was signed. 5) While there is no direct evidence that Joe dominated Hazel by July 1979, such evidence is not crucial.

Citing Galvan, Thorp claims there must be a showing of strong dominance by the beneficiary at the time of the execution of the will. We do not think Galvan stands for this proposition. Such an interpretation does not harmonize with other cases on undue influence which have been decided in New Mexico. Cf. Hummer; Ostertag; Calloway; Cobb; Salazar; Trigg; Cardenas. A showing of dominance is just one of the possible circumstances which, together with a confidential relation, gives rise to a presumption of undue influence.

A presumption of undue influence will arise if it is shown that, in addition to the confidential or fiduciary relation, the testator was dominated, or controlled by the beneficiary, or that the testator was weak-minded or in frail health and particularly susceptible to influence, or that the provisions of the will are unnatural and unjust, or that the person designated as a recipient of benefits thereunder unduly profited by the will. (Emphasis added.)

94 C.J.S. Wills § 239 supra at 1096-98, quoted in, Hummer, 75 N.M. at 280-81, 404 P.2d at 115. In Cobb, the court wrote:

In order to render [the rule on undue influence] * * * applicable, it is not necessary that one of the parties should occupy such a dominant position towards the other as to justify the inference that the latter was without power to assert his will in opposition to the former.

Id. 53 N.M. at 172, 204 P.2d at 266. Undue influence was found to have been exerted by the weaker or less dominant party in Trigg. Nor do Walters v. Walters, 26 N.M. 22, 188 P. 1105 (1920) and Giovannini v. Turrietta, 76 N.M. 344, 414 P.2d 855 (1966), cited in Galvan, belie the view that a showing of dominance along vpth a confidential relation is sufficient, but not necessary, to establish undue influence. Waiters stands for the proposition that a presumption of undue influence arises when a confidential relation exists and the grantee dominates the grantor; but it does not hold that the presumption arises only when there is a direct showing of dominance. In Giovannini, the court asserts that a confidential relationship, by itself, is not sufficient to raise a presumption of undue influence. While the court adds that dominance also must be shown, nowhere does it imply that this dominance cannot be inferred from the circumstances. Moreover, the dominance requirement is derived from Cardenas, a case in which there was no more direct evidence of undue influence than in the case before us. In Cardenas, Judge Bratton specifically noted with respect to one donor, the wife, that there was no evidence of direct persuasion, but that other circumstances—such as her physical and mental condition and lack of consideration — were sufficient to establish undue influence. Moreover, the court in Giovannini did not read Cardenas in the same way that an earlier court did. In Salazar, decided before Giovannini, the court read Cardenas as holding that the absence of consideration coupled with the existence of a confidential relation was sufficient to raise an inference of undue influence. We do not imply that Giovannini misinterpreted Cardenas. Our view is that neither Giovannini nor Galvan, which followed it, limited undue influence to those situations where dominance could be directly shown. Rather, dominance by the grantee, when susceptible of direct proof, is merely one factor which raises a presumption that the grantor was unduly influenced, when there is also evidence of a confidential relation between the parties. Thorp’s view that direct evidence of dominance by the legatee over the testatrix is necessary in order to show undue influence is incorrect.

There is substantial evidence to raise a presumption that Joe Thorp unduly influenced Hazel Cash to make him and his wife the principal beneficiaries of her will. Although evidence was presented which suggested that the will was not the result of undue influence, it is for the fact finder to determine the weight of the evidence and judge the credibility of the witnesses, Galvan. The jury could decide that the presumption was not rebutted.

Thorp’s argument that Hazel’s failure to revoke the will somehow vitiated the effect of undue influence is without merit. The evidence was uncontradicted that his close relation with Hazel continued until her death. As she trusted him, her failure to revoke the will was simply to be expected, and was no indication that she had not been unduly influenced by him.

II. Jury Trial.

Court’s discretion to order jury trial. Thorp argues first that the district court had no power to order a jury trial on its own motion. Although Don Cash filed an objection to probate on February 15, 1980, he made no demand for a jury trial until April 11, 1980. A jury demand in civil actions is to be made not later than 10 days after service of the last pleading on the issue concerning which trial by jury is sought. N.M.R.Civ.P. 38(a), N.M.S.A.1978 (Rep.1980). The contestant’s jury demand was untimely, and the court ordered a jury trial on its own motion. Under N.M.R.Civ.P. 39(a), N.M.S.A.1978 (Rep.1980), the court has the discretion to do this when the demand for a jury trial might have been made of right. The question, then, is whether one is entitled to demand a jury trial of right when contesting a will. Thorp uses two cases, State ex rel Gallegos, 40 N.M. 331, 59 P.2d 893 (1936) and Frock v. Fowlie, 80 N.M. 506, 458 P.2d 581 (1969) as support for his contention that probate proceedings are in equity and, consequently, a claimant has no right to a jury trial. Frock is not on point; and Gallegos rests on an interpretation of an old law, § 34-422, N.M.S.A. (1929), which is no longer in effect. The current probate code, §§ 45-1-101 to 45-1-404, N.M.S.A.1979, enacted in 1975, allows a jury trial in certain probate proceedings. Section 45-1-306 provides:

If demanded, in the manner provided by the Rules of Civil Procedure, a party is entitled to a trial by jury in a formal testacy proceeding and in any proceeding in which any controverted question of fact arises as to which any party has a constitutional right to trial by jury.

The pertinent Rule of Civil Procedure is Rule 38, entitled “Jury trial in civil actions”, which provides in part that:

(a) * * * In civil actions any party may demand a trial by jury of any issue triable of right by a jury * * *. (Emphasis added.)

Under Rule 38(a), a demand for a jury trial may be made when there is a right to one; and when the demand is timely, the court cannot refuse to allow a jury trial. See, Barber’s Super Markets, Inc., v. Stryker, 84 N.M. 181, 500 P.2d 1304 (Ct.App.), cert. denied, 84 N.M. 180, 500 P.2d 1303 (1972). Rule 39(a) gives the court the discretion to allow a jury trial when the right to one exists, and the demand was not timely. Alford v. Drum, 68 N.M. 298, 361 P.2d 451 (1961); 9 Wright and Miller, Federal Practice and Procedure ¶ 2334 (1971) (discussion of Fed.R.Civ.P. 39(b) which is similar to our Rule 39(a)). Section 45-1-306 of the Probate Code simply means that the court cannot refuse a jury trial to a party in a formal testacy proceeding who demands it in accordance with Rule 38(a). If the demand is not timely, Rule 39(a) is applicable. The district court did not err in ordering a jury trial.

Waiver of right to jury of twelve. Thorp’s second objection to the jury is that it consisted of six members rather than twelve. Unless specific demand is made for a jury of twelve, the parties are considered to have agreed to a jury of six. N.M.R.Civ.P. 38(b) N.M.S.A. 1978 (Rep.1980). The right to a jury of twelve is waived if the demand for it is not made within ten days after the other party has demanded a jury trial. See, Id. Cash demanded a jury trial on April 11, 1980. Thorp did not demand a jury of twelve until the first day of trial, August 18, 1980. His failure to act within the time limit of Rule 38(b) constituted a waiver of his right to the larger jury.

III. Allowance of Testimony.

MacKenzie’s testimony. Thorp objected to Howard MacKenzie’s testimony about the negotiations he had with Thorp, Hazel, and a third man, Mossman, concerning a mining lease which would enable MacKenzie to mine on Hazel’s land. The discussions took place between June and December, 1979. By November, working through Thorp and Mossman, MacKenzie thought he had reached an agreement on the terms of the lease between himself and Hazel. When he visited Hazel in the hospital around December 10, he learned from Thorp that Hazel had already signed a mining lease with Thorp and Mossman. In testifying at trial, MacKenzie indicated his surprise at learning about this agreement and his belief that Thorp had tricked Hazel with this lease. He also testified, however, that when he went in to see Hazel, she confirmed what Thorp had said and assured him that Thorp and Mossman would not cheat him.

Thorp objected to this testimony as irrelevant and prejudicial. N.M.R.Evid. 402, N.M.S.A.1978 prohibits evidence which is not relevant; and N.M.R.Evid. 403, N.M.S.A.1978, allows relevant evidence to be excluded in certain circumstances when it is prejudicial.

We find MacKenzie’s testimony was relevant. The New York courts, when examining a will challenged on the grounds of undue influence, normally allow evidence covering a period of three years prior to and two years after the execution of the will, if it concerns the relationship between the testator and the proponent of the will. In re McNamara’s Will, 148 N.Y.S.2d 544 (1956). Evidence indicative of comments by the testator concerning persons slighted in the will or concerning persons accused of exerting undue influence is admissible, even when the comments were made after the will was executed. See, Shulman v. Shulman, 150 Conn. 651, 193 A.2d 525 (1963); In re Thompson’s Will, 248 N.C. 588, 104 S.E.2d 280 (1958). Neither is there error in admitting evidence of business arrangements and financial transactions between the testator and the proponent of the will which occurred after the will was executed. Wilhoit v. Fite, 341 S.W.2d 806 (Mo.1960). Evidence that sheds light on the relationship between the testatrix and a primary beneficiary of the will is relevant in determining the existence of undue influence, even when the evidence pertains to events taking place after the will was executed. MacKenzie’s testimony was relevant because it pertained to the ongoing relationship between Thorp and Hazel.

Relevant evidence may be excluded if the danger of prejudice substantially outweighs its probative value. N.M.R.Evid. 403. Although MacKenzie’s testimony might have been prejudicial in that he indicated that he thought Thorp had deceived Hazel, its probative value was significant, as it informed the jury of the extent to which Hazel trusted Thorp up to the time of her death. The admission or exclusion of evidence is within the discretion of the trial court, and the court’s determination will not be disturbed in the absence of a clear abuse of that discretion. State v. Valdez, 83 N.M. 632, 495 P.2d 1079 (Ct.App.), aff’d, 83 N.M. 720, 497 P.2d 231, cert. denied, 409 U.S. 1077, 93 S.Ct. 694, 34 L.Ed.2d 666 (1972). The trial court did not err in admitting MacKenzie’s testimony.

McKee’s testimony. Thorp also objected to the admission of some of Phillip McKee’s testimony. McKee had hired the Thorps to work on his ranch, and it was at his suggestion that they helped Hazel. While originally McKee had held a high opinion of the Thorps, his opinion had changed by January 1980. At trial, he testified that the reasons for this change were that he did not think that Joe was properly performing his part of the employment agreement and that he suspected that Joe was interfering in his, McKee’s, relationship with his children. McKee’s opinion of Thorp was heard by the jury. When character evidence is admissible, testimony in the form of an opinion as to that character is proper. N.M.R.Evid. 405(a), N.M.S.A.1978. We must decide if character evidence, such as offered here, is admissible when a will is contested on the grounds of undue influence.

Character evidence is not generally admissible to prove conduct. N.M.R.Evid. 404(a), N.M.S.A.1978. However, Rule 404 does not bar character evidence when character is an element of the claim. See, State v. Bazan, 90 N.M. 209, 561 P.2d 482 (Ct.App.), cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977). In some states, the disposition to exert undue influence is one of the elements of undue influence. 1 Page on Wills § 15.5 (1960). This is not the case, however, in New Mexico. See generally, Cobb. Nevertheless, evidence of the character of the beneficiary may be admitted when a will is contested on the grounds of undue influence even when the disposition to exert undue influence is not considered an element of the claim. See, In re Olsson’s Estate, 344 S.W.2d 171 (Tex.Civ.App.1961).

Evidence which tends to show the character of the beneficiaries, heirs, and the like, is admissible if it tends to prove or disprove the existence of undue influence.

3 Page on Wills § 29.129 (1961). Such evidence may concern actions occurring, or reputation formed, after the will was executed. See, In re Ford’s Estate, 19 Wis.2d 436, 120 N.W.2d 647 (1963); see generally, Bryan v. Norton, 245 Ga. 347, 265 S.E.2d 282 (1980); Welch v. Barnett, 34 Okl. 166, 125 P. 472 (1912). According to Weinstein, Rule 404 does not prohibit the use of character evidence in civil actions where character is in issue. 2 Weinstein, Evidence ¶ 404[03] (1980). Although discussing Federal Rule of Evidence 404, the comment may be applied to our rule which is similar. Adopting the view expressed in Page, above, we hold that evidence which shows the character of a primary beneficiary of a will contested on the grounds of undue influence is admissible if that evidence tends to prove or disprove the existence of undue influence. McKee’s testimony suggested that Thorp might have a disposition to exert undue influence and was properly admitted. While the opinion testified to was not formed until some months after the will was executed, the time was still close enough to the execution of the will for the opinion to be relevant.

The case cited by Thorp, In re Will of Callaway, 84 N.M. 125, 500 P.2d 410 (1972), is not on point. It does not consider the issue of whether evidence of character is admissible to prove undue influence. In that case, the submission to the jury of hospital records containing nurses notes was error because the nurses could not be cross-examined, not because the records contained opinions per se. McKee was available for cross-examination. The court did not err in admitting his testimony.

IV. Jury Instructions.

Instructions on burden of proof. Thorp’s claims first that the giving of Instruction 18 by the court was error. That instruction reads:

It is a general rule in all civil cases that a party making a claim has the burden of proving the propositions necessary to support his claim by the greater weight of the evidence or, as it [is] sometimes called, the preponderance of the evidence.

Evenly balanced evidence is not sufficient.

Therefore, when I say in these instructions that a party has the burden of proof on any proposition or use the expression “if you find”, or “if you decide”, I mean that you must be persuaded, considering all the evidence in the case, that the proposition on which one has the burden of proof is probably more true than not true.

For a Will to be invalid on the ground of undue influence, the evidence of undue influence, although it may be wholly circumstantial, must be clear and convincing. For evidence to be clear and convincing, it must tilt the scales in the affirmative when weighed against the evidence in opposition and leave your mind with a conviction that such evidence is true.

The first three paragraphs of this instruction comprise N.M.U.J.I. 3.6, N.M.S.A.1978. The directions for use of U.J.I. 3.6 say that the instruction is to be given in every civil case. Rule 51(D), N.M.R.Civ.P., N.M.S.A. 1978 (Rep.1980) instructs that, normally, applicable Uniform Jury Instructions approved by our Supreme Court should be used. U.J.I. 3.6 is such an instruction. The Rules of Civil Procedure apply to formal proceedings under the Probate Code. § 45-1-304, N.M.S.A.1978. U.J.I. 3.6 is properly given in district court cases arising under the Probate Code.

While Thorp is correct in asserting that proof of undue influence must be by clear and convincing evidence, McElhinney v. Kelly, 67 N.M. 399, 356 P.2d 113 (1960), he is incorrect in believing that U.J.I. 3.6 should not be used when such proof is required. This court has already decided that U.J.I. 3.6 is proper in a fraud case, when an instruction is also given that the evidence must be clear and convincing. Echols v. N.C. Ribble Co., 85 N.M. 240, 511 P.2d 566 (Ct.App.), cert. denied, 85 N.M. 229, 511 P.2d 555 (1973). The same rule applies in the instant case. By use of the fourth paragraph in Instruction 18 containing the requirement that the evidence be clear and convincing, the court complied with the rule.

Thorp argues that the portion of Instruction 18 defining clear and convincing evidence is incorrect because the word “instantly” is not included before the phrase “tilt the scales in the affirmative”. Cf., Hockett v. Winks, 82 N.M. 597, 485 P.2d 353 (1971) (defining clear and convincing evidence). We are not persuaded that the word “instantly” is essential in the definition of “clear and convincing evidence”. Moreover, there is no reason to believe that the error, if there was one, affected the verdict.

[A] judgment will not be reversed by reason of an erroneous instruction, unless * * * the evidence indicates that without such error in the instructions the verdict probably would have been different from the verdict actually returned by the jury. (Cites omitted.)

Romero v. Melbourne, 90 N.M. 169, 173, 561 P.2d 31, 35 (Ct.App.), cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977) Hernandez, J., specially concurring). The giving of Instruction 18 is not grounds for reversal of the judgment.

Failure to give requested instruction on undue influence. Thorp claims next that the failure to give his Instruction 25 was error. That instruction reads:

There must be more than mere suspicion of undue influence to vitiate a will or to deny it probate. To deny a will probate because of undue influence, there must be such influence exercised at the time the will is made, as. to destroy the will of the testatrix and cause her to do what she would not have done of her own free choice.

The denial of a requested instruction is not error when the court gives an instruction that adequately covers the issue. Tapia v. Panhandle Steel Erectors Co., 78 N.M. 86, 428 P.2d 625 (1967). The instructions given are sufficient if, when read together, they fairly present the applicable law. Id. Instead of the requested instruction, the court gave Instructions 13 and 17 which read:

13. Undue influence is improper. Influence alone, however, is not improper.

The term “undue influence” means that one unfairly and improperly influenced another as to prevent that person from exercising a free and understanding judgment.

17. Undue influence, in order to make a will void, must be directly connected with its execution and müst operate at the time it was made.

These instructions, read together, contain the essential law found in proponent’s proposed Instruction 25. Since the given instructions fairly present the law, the court’s failure to give proponents Instruction 25 was not in error.

In his reply brief, Thorp suggests that the court erred in giving Instruction 13 above. This argument was not raised in the Brief-in-Chief, nor does the record indicate that Thorp objected to the instruction at trial. Jury instructions are reviewable when the error is properly preserved. N.M.R.Civ.P. 51(J), N.M.S.A.1978. Thorp failed to preserve any error related to Instruction 13. We will not consider this issue.

Failure to give requested instruction on dominance. Thorp’s last claim is that the court erred in failing to give his Instruction 28, requiring the jury to find that the Thorps dominated Hazel. The instruction was written:

For there to be a presumption of undue influence, the mere relationship of the parties is not enough; there must be a showing of strong dominance by the person procuring the will over the testatrix.

As already stated in Part I of this opinion, Thorp’s view on the showing of dominance necessary to prove undue influence is incorrect. Instead of Thorp’s instruction, the court gave its Instruction 16, the second paragraph of which was similar to 94 C.J.S. § 239 quoted with approval earlier in this opinion. We have already indicated that a direct showing of dominance is merely one of the factors which may give rise to a presumption of undue influence when a confidential relation exists between the testator and the primary beneficiary. Thorp’s instruction, by emphasizing one factor to the exclusion of all others, distorts the law. The court did not err in refusing this instruction.

The judgment of the trial court is affirmed. Appeal costs are to be paid by the appellant.

IT IS SO ORDERED.

SUTIN, J., specially concurring. WALTERS, J., dissenting.