¶1(dissenting). Whether or not the said will was the result of undue influence was purely a question of fact. Likewise, also, whether or not the decedent had sufficient mental-capacity to execute said will was purely- a question of fact. . We are of the view that there is no evidence, either direct or circumstantial, appearing in the record sufficient to warrant us in holding that the findings of the trial court upon either of these issues were against a clear preponderance of the evidence. Upon the issue of undue influence we are of the opinion that the record presents no evidence tending to sustain the contention of appellants in relation to that issue. We realize and fully appreciate that undue influence, like fraud-, is most oftentimes practiced in secrecy, and can only be ferreted out and proven by surrounding circumstances. It appears that decedent was residing at the home of his daughter Jean at the time of the execution of this will; that she was his favorite daughter; that he was advanced in years and was suffering from the poisons of Bright’s disease; that the daughter Jean had the -opportunity to practice undue influence upon him; and that he was in a weakened mental and physical condition to such an extent that he might have been more easily influenced than a younger person possessed of more mental and physical vigor. Decedent in his lifetime had been addicted to the excessive use of intoxicating liquors, and had deposited for safe-lceeping with a certain saloon keeper a large amount of valuable securities and other property, among which were- notes executed by the husband of Jean, and on one or more occasions -his- daughter Jean had demanded the possession of said property from said saloon keeper, which demand was refused. The-daughters Ellen and Marguerite were not notified by the -daughter Jean of the serious physical condition of the father until after the execution of the will; and, after the arrival of the daughters Ellen and -Marguerite at the home of Jean, she requested the two sisters not to talk about 'business matters with the father. iSurrounding circumstances of *604this character were the only ones appearing. We are of the view that such circumstances are not inconsistent with the utmost good faith and perfectly honest intentions on the part of Jean, when taken in connection with the particular relations of the Golder family shown to exist. Such circumstances are not necessarily evidence of undue influence.
¶2On the issue as to whether the deceased was of sound and disposing mind there was conflict in the evidence. It appears that he had 'been seriously affected with Bright’s disease from some time in the month of June preceding, and that at times he was apparently in lucid, normal mental condition, although physically weak; while at other times he was apparently to some extent mentally deranged. At the time of the drafting ■ of the will and prior to its execution he infomred and directed his attorney as to the manner in which he desired, by said will, to dispose of his property, and also stated the reasons why he desired to so dispose of the same. It is urged by appellants that the act of decedent in practically disinheriting the appellants was an irrational and unnatural act tending strongly to show senile dementia and lack of mental capacity to make a will. Ordinarily such an inference might reasonably be inferred, but in this case it appears that some years prior to the making of the will James Golder and 'his wife were separated by divorce; that a division of property between them at that time was made; that two children, Jean and. George, sided with the father during the family troubles, and that the other three children, Ellen, Theodora, and Marguerite, remained with the mother; that within a short time after the separation, the father, Jean, and George, removed from the state of Nebraska, where they were residing at the time of the family separation, and came to Tripp county, this state, where Jean and George took up government lands, and that the father and Jean and Georg’e were closely associated together, and that the father lived with Jean on her claim, and that she taught school part of the time; that decedent also resided with George a part of the time on his claim; and that after Jean was married, the father spent much of his time with her. The brother George, unmarried, died some time prior to the execution of the will, and the father inherited 'his property. It also appears that the daughters Ellen and Marguerite remained *605with the mother,’ and never, or seldom, saw the father; that the daughter Theodora, some time prior to the father’s death, came to Dakota and visited the father, and became quite friendly with him, and exhibited quite an interest in his welfare, and made her home part of the time with Jean. Under these circumstances it may readily be seen why decedent desired or had reason to desire the disposition he made of his property. He stated to his attorney who drafted the will that the daughters Ellen ánd Marguerite ■would no doubt inherit and succeed to the property owned by the mother. Viewed in the light of these circumstances, we are of the view that his act in practically disinheriting Ellen and Marguerite indicates a discriminating and disposing mind rather than the contrary; that under the circumstances of this case the act of the decedent in practically disinheriting two of his daughters was not an unnatural act.
¶3The trial court heard and saw all the witnesses, and was in a much better position to determine who, if any, of the witnesses committed perjury than is this court. Under the rule that should be applied, where there is a substantial conflict in the evidence, as there is in this case, the findings of fact made ‘by the trial court should not 'be disturbed unless against a clear preponderance of the evidence. A clear preponderance of evidence against a trial court’s finding must necessarily be a preponderance so decided as to leave but little room for reasonable doubt on the question. Ott v. Boring, 139 Wis. 403, 121 N. W. 126; Rankl v. Schmidt, 133 Wis. 103, 113 N. W. 423; Endress v. Shove, 110 Wis. 141, 85 N. W. 651. We are of the opinion that no such clear preponderance exists in this case. We are also of the view that the question of burden of proof has no place in the determination of the questions here presented. The burden of proof relates solely to the (question as to which party shall first go forward and submit evidence in substantiation of an issue made by the pleadings. Presumptions arising from the burden of proof rule should never be placed in the scale and weighed as evidence. After a case has been fully tried out upon the merits, the burden of proof rule ceases to have any effect, and the -cause should then be determined upon the whole of the competent evidence regardless of which party might *606have produced or offered the same. Elliott, Ev. ■§§ 91, 92, 93; Wigmore, Ev. §§ 2490-2491.
¶4The judgment should be affirmed.
¶5(concurring specially in dissent). I regret that, the exigencies of the conclusion reached seem to make it necessary in this case to ignore a rule long established and well understood by the profession in this state. In Spackman v. Gross, 25 S. D. 244, 126 N. W. 389, this court held that a review of the finding of a trial court authorized by Code Civil Procedure, § 463, is not a trial de novo on the evidence, but is restricted by the rule that the credibility of the.witnesses is for the trial court; and, unless the finding is against the evidence, taking the credibility as. found by the trial court, the finding will not be reversed.
¶6In Township of Blooming Valley v. Bronson, 29 S. D. 41, 135 N. W. 678, Mr. Justice Whiting said:
“It was impossible for the trial court to harmonize the testimony given by the several witnesses, but it was therefore necessary for such court, in view of all the surrounding circumstances and facts and in view of the apparent credibility or lack thereof on the part of the several witnesses, as same appeared from seeing the witnesses and hearing their testimony, to determine which witnesses were entitled to the greater credit; and this court, when it has not the opportunities presented to the trial court for determining these matters so material where the evidence is conflicting, would certainly not be justified in overturning and reversing the findings of the trial court:”
¶7In Gingles v. Savings Bank, 33 S. D. 351, 146 N. W. 596, this court said:
“We áre convinced that the credibility of witnesses who testified at the trial must have been a controlling factor in the decision of the trial court, and in such cases it would require most convincing circumstances to justify this court in reversing the finding of the trial court.”
¶8This rule was again affirmed by this court in Watt v. Alyward, 34 S. D. 228, 147 N. W. 978.
¶9The extended discussion in the majority opinion of the conflicting evidence of witnesses who testified at the trial is a most *607convincing demonstration of the propriety of applying the rule in this case.
¶10The trial court had 'before, it all the witnesses, including the attorney who drew the will, heard their evidence, witnessed their demeanor while testifying, and could judge of their apparent truthfulness and sincereity. The deliberate judgment and findings of that court upon conflicting evidence should not be’ set aside by an abstract argument and an ex cathedra judgment.
¶11The order and judgment of the trial court should be affirmed.