The memorandum of decision makes clear that recovery was allowed to the plaintiffs against only Martin Olson and Martin Olson, Inc. It was apparently through an oversight that no disposition as to the other defendant was ordered. Pepin v. Ryan, 133 Conn. 12, 17, 47 A.2d 846. The judgment file was signed by the clerk; Practice Book 270; and correctly followed the mandate of the memorandum of decision.

The following are some of the cases so holding. Hyatt v. Wroten, 184 Ark. 847, 43 S.W.2d 726; Pepin v. Ryan, 133 Conn. 12, 47 A.2d 846; Wombacher v. Barthelme, 194 Ill. 425, 62 N.E. 800; In re Eiker, 233 Iowa 315, 6 N.W.2d 318; McCarthy v. Fidelity Nat. Bank Trust Co., 325 Mo. 727, 30 S.W.2d 19, 69 A.L.R. 1122; 16 Iowa L.Rev. 119; 36 U.Mo.Bull. 48 L.Ser. 35; In re Peppler, 132 N.J. Eq. 421, 28 A.2d 474. Agreeing that the residuary clause was induced by undue influence, we then examine the will to determine whether the remainder, not so affected, can be separated from it.

In this state of confusion, we are compelled to remand this case with direction to render judgment on the second count for the defendant. See cases such as Pepin v. Ryan, 133 Conn. 12, 17, 47 A.2d 846; Morici v. Jarvie, 137 Conn. 97, 105, 75 A.2d 47. Since there must be a remand, the technical, even though harmless, error in the rendition of judgment for Lerner under the first count should be corrected.

Ordinarily, the burden of proof on the issue of undue influence rests on the one alleging it, and this is true whether the issue arises in a will contest or in a proceeding in equity to set aside a conveyance. Bucchi v. Gleason, 137 Conn. 25, 30, 74 A.2d 212; Pepin v. Ryan, 133 Conn. 12, 15, 47 A.2d 846; Sullivan v. Clear, 101 Conn. 603, 612, 127 A. 14. In will contests, we recognize an exception to this principle when it appears that a stranger, holding toward the testator a relationship of trust and confidence, is a principal beneficiary under the will and that the natural objects of the testator's bounty are excluded. Downey v. Guilfoile, 93 Conn. 630, 632, 107 A. 562; Goodno v. Hotchkiss, 88 Conn. 655, 666, 92 A. 419. The burden of proof, in such a situation, is shifted, and there is imposed upon the beneficiary the obligation of disproving, by a clear preponderance of evidence, the exertion of undue influence by him.

Id. at 478. Finally, in Pepin v. Ryan, 133 Conn. 12, 47 A.2d 846 (1946), the court held that the guardian of the decedent failed to prove that her influence did not overcome the free agency and independence of the decedent, stating: Ordinarily, the burden of proving undue influence rests upon him who seeks to have a will set aside on this ground, but `where the natural object of the testator's bounty is excluded from participation in his estate, where a stranger supplants children, and the will is in favor of . . . the guardian having charge of his person and estate. . . there is imposed upon the proponents of the will, upon the trial of the issue as thus raised, the obligation of disproving by a clear preponderance of evidence the affirmation of the actual exercise of undue influence by such beneficiaries of the will.

'" (Emphasis added.) Richmond's Appeal, 59 Conn. 226, 245-246, 22 A. 82 (1890); see Pepin v. Ryan, 133 Conn. 12, 15-16, 47 A.2d 846 (1946); Page v. Phelps, 108 Conn. 572, 581-582, 143 A. 890 (1928); Kirby's Appeal, 91 Conn. 40, 45-44, 98 A. 349 (1916); Lockwood v. Lockwood, 80 Conn. 513, 522, 69 A. 8 (1908). Notably, the plaintiff was not an heir-at-law of the testator nor a natural object of the testator's bounty.

. . .Pepin v. Ryan, 133 Conn. 12, 15 (1946). However, as suggested by the use of the word "[o]rdinarily" in the Pepin case (supra), there are circumstances under which the burden shifts.

The effect of the court's decree is to leave in place only articles First and Fourth. By Article Fourth, the residuary is left in equal shares to Carl, Roger and Joan, The probate court concluded "that Jessica Scott Dunham was unduly influenced to create a will contrary to her intentions." If there was undue influence that finding in the usual situation would invalidate the entire will. Lancaster v. Bank of New York, 147 Conn. 566; D'Agostino v, Amarante, 172 Conn. 529. 79 Am.Jur.2d, Wills 379. While there are situations where only partial invalidity will be found, Pepin v. Ryan, 133 Conn. 12, such is not the case where that will defeat the general scheme of distribution. The motions to preclude are based upon a general waiver filed by Joan Dunham Rogerson in the New Milford Probate Court on October 31, 1978. That waiver states "that [she] has examined said application and related documents and hereby waives notice of hearing upon said application and has no objection to the granting and approval thereof."

Where there is a fiduciary or confidential relationship between the testator or donor and the beneficiary or donee, then "the practical effect of the principle is to change a permissible inference of fact into a necessary presumption of fact" [and] thus the burden then rests upon the beneficiary or donor to prove that her influence did not overcome the free agency and independence of the [testator or donor], that she did not exercise such a domination or control over his mind as to constrain her to do what was against her will under all the circumstances. See Pepin v. Ryan, 133 Conn. 12, 15-16, A.2d (1946). In this case the plaintiffs do not claim that the defendant occupied a fiduciary or confidential of relationship with Morris. Assuming arguendo, they did, there would be insufficient evidence upon which to predicate such a claim.