¶1dissenting:
¶2I regret that I am not able to concur in the view expressed in the opinion of the court, that there is no prejudicial error in this record.
¶3*92The evidence in this case shows that the attorney who drafted the will in issue here was in a position to see, hear and know many things which had a most material bearing upon the question of undue influence. Instruction No. 6, tendered by the appellant, deals with the weight to be given the testimony of the attorney who drafted the will; and by adding to this instruction the words, “but has no special bearing upon undue influence,” the court, in effect, told the jury that the testimony of the attorney who drafted this will had no special bearing upon undue influence, which, under the facts of this case, was erroneous.
¶4Instruction No. 7-a, though it follows closely the language of some opinions of the Supreme Court of Appeals of Virginia and of other courts, does not, in my opinion, state a correct rule of law. The facts therein recited do not, as 'a matter of law, raise a presumption of fraud and undue influence. They are merely facts which, along with other facts, may warrant a jury in inferring that the beneficiary has been guilty of fraud and undue influence; and it was error to have told the jury that the facts recited in instruction No. 7-a raised a presumption of fraud and undue influence. The majority opinion appears to recognize that this is true, but apparently takes the view that it is harmless error.
¶5In view of the fact that the evidence is very conflicting on the question of undue influence; that the jury, after lengthy deliberation, advised the court that it was impossible for them to agree upon a verdict that night, thereby implying that they were seriously divided upon the questions at issue, and that they only reached an agreement finding against the will after being urged by the court to get together, I am not able to say that the two errors herein mentioned were harmless.