It can not be shown by parol evidence, either to supply the omissions or to defeat the will, that legacies intended by the testator were omitted by the mistake of the draftsman. (8 Conn. 254; s. c. 20 Am. Dec. 100.)

Courts of Equity may correct mistakes in wills as to their effect where the mistake is apparent on the face of the will or can be made out by due construction of its terms, and the will itself indicates the true intention. (Dulaney v. Middleton, 72 Md. 61; 32 Me. 340, s. c. 52 Am. Dec. 654; Roe v. Vingut, 117 N. Y. 204; 36 Ia. 674, s. c. 4 Am. Rep. 665.)

Sec. 952. UNDUE INFLUENCE.-By "undue influence" is meant that influence which compels the testator to do that which is against his will from fear, the desire of peace, or from solicitations, over-persuasion, or coercion, which he is unable to resist.*

Undue influence may be exercised either through threats or fraud or persuasion, but to avoid the will it must destroy the free agency of the testator at the time and in the very act of making the will.†

*Johnston v. Armstrong, 97 Ala. 731. In this case undue influence is defined as "such as in some measure destroys the free agency of testator and prevents the exercise of that discretion which the law requires that a party should possess." In Coghill v. Kennedy, 119 Ala. 641, undue influence is said to exist where “any improper or wrongful constraint, machination or urgency of persuasion whereby the will of a person is overpowered and he is induced to do or forbear an act which he would not have done or forborne had he been left to act freely."

†Rollwagen v. Rollwagen, 63 N. Y. 504. The facts in this

"The theory underlying the doctrine of undue influence is that the testator is induced by the various means employed . . . to execute an instrument which, though in outward form and appearance his, is, in real

case were that, "In 1871, R., an uneducated man of great wealth, a confirmed invalid, having nearly lost the power of speech, and having three sons and a daughter by a first wife, when sixty years of age, married plaintiff, his housekeeper. His infirmities increased and during 1872, according to testimony, he could not utter an intelligent word or sound. In the spring of 1873 his old business agent was discharged, and a brother of his last wife, of scarcely any business capacity, was put in charge of all his property. A large and expensive dwelling house was purchased, and a will was drawn by an attorney employed by plaintiff's brother, she giving in presence of R., all the instructions in reference to it, claiming to understand the sounds uttered by him, but none of which were intelligible to the attorney or physician present. At the execution of the will no word or intelligible sound was uttered by R. By this will, the new house and furniture were given to the wife in addition to her share as widow. The real estate was not to be divided until the youngest grandchild living at the death of the plaintiff, should arrive at the age of twentyone, and in the meantime the property was in control of plaintiff's brother, who was appointed executor. In September, 1873, a codicil was drawn and executed, in a similar manner to the will, in which plaintiff was devised four other houses and lots, and provision was made for a child to be born of her.

R.'s children by his former wife were not present at the execution of the will or codicil, nor knew of them. R. died about a month after the execution of the codicil. Under these facts it was held in the surrogate, supreme, and court of appeals, that probate of the will should be properly refused; that the proof failed to show that the testator understood and assented to the provisions of the instruments, and that the evi

ity, not his will, but the will, wish and desire of some other person. Such instrument, therefore, though signed by the testator, is not executed by him animo testandi. This important and inherent element is lacking."*

Mere solicitations, however importunate, do not of themselves constitute undue influence. Neither does honest persuasion, appeals to affection or gratitude, or to the ties of kindred, or for pity for future destitution; neither do fair and flattering speeches when not accompanied by fraud. To be sufficient the influence used must amount to coercion or fraud, and must have overcome the free agency, or free will, of the testator.†

ap

dence justified a finding of undue influence. The court of peals saying "It is impossible to define with precision what the extent of power of one mind over another must be to be undue-and it must be decided by sound principles and good sense in each case. But the influence over a testator which the law regards as undue and illegal, must be such as to destroy his free agency, it vitiates the act which is the result of it. The undue influence is not often a subject of direct proof. It can be shown by all the facts and circumstances surrounding the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such perDean v. Negley, 41 Pa. St. 312; Monroe v. Barclay, 17 O. St. 302; s. c. 93 Am. Dec. 620.

son."

*Page on Wills, Sec. 126, citing Krankel v. Krankel, 50 S. W. Rep. (Ky.) 863.

Arnault v. Arnault, 52 N. J. Eq. 801; Haydock v. Haydock, 34 N. J. Eq. 570; Wilcoxon v. Wilcoxon, 165 Ill. 454;

Sec. 953. SAME

SUBJECT PRESUMPTIONS. The amount of influence required to constitute undue influence, cannot be stated, it varies with the character of each case, regard being had for the age, mental capacity and strength of character of the testator. It is enough if, in the case in question, it overcame the testator's free agency. (Rollwagen v. Rollwagen, 63

N. Y. 504.)

The relations of the parties are material. Thus the law recognizes opportunities for undue influence in such fiduciary relations as those of Guardian and Ward, Attorney and Client, Physician and Patient, Religious Adviser and layman; and a will made for the benefit of the Guardian, Attorney, Physician, or Religious Adviser is viewed with suspicion. And if it appears, that the beneficiary made efforts to procure the will it will be presumed to be the result of such influence, and this presumption of fact must be rebutted by such beneficiary.*

The fact that the beneficiary drew the will is often a suspicious circumstance and in connection with other facts may raise a presumption of undue influence. (In re Smith, 95 N. Y. 517; 111 N. Y. 238.)

Bequests to persons in places or relations not fiduciary

Bulger v. Ross, 98 Ala. 267; In re Langford, 108 Cal. 608; Thompson v. Ish, 99 Mo. 160; Pennsyl's Est., 157 Pa. St. 465.

*Richmond's Appeal, 59 Conn. 226; s. c. 21 Am. St. Rep. 85; Coghill v. Kennedy, 119 Ala. 641; Bancroft v. Otis, 91 Ala. 279; s. c. 24 Am. St. Rep. 904; Hoopes's Estate, 174 Pa. St. 373; 72 Cal. 556; 1 Am. St. Rep. 84; Bennett v. Bennett, 50 N. J. Eq. 439.

as Parent and Child, Husband and Wife, Master and Servant, do not of themselves raise a presumption of undue influence, even though the beneficiary took active steps to procure the will. But if opportunities for undue influence existed, and the provisions of the will are unnatural, such a presumption may arise. (Rollwagen v. Rollwagen, 63 N. Y. 504; Haydock v. Haydock, 34 N. J. Eq. 570.)

The mere existence of unlawful relations, between the testator and the beneficiary, do not raise a presumption of undue influence, but when coupled with other circumstances, favorable to the exercise of such influence, will raise a presumption of it.†

Sec. 954. SAME SUBJECT — BURDEN OF PROOF.-The burden of proving undue influence rests, usually, upon him who alleges it. But where the parties stand in fiduciary relations, or the draughtsman is the beneficiary, and it appears that such beneficiary was active in procuring the will, the burden of proving that it was the voluntary act of a competent testator, rests upon the beneficiary.*

It is also held to be "a strong circumstance tending to show the absence of any undue influence when the proof fails to connect the beneficiary in the will in any way

†Porshett v. Porshett, 82 Ky. 93; s. c. 56 Am. Rep. 880; Monroe v. Barclay, 17 O. S. 302; Wainright v. Wainright, 89 Pa. St. 220.

*Bancroft v. Otis, 91 Ala. 279; s. c. 24 Am. St. Rep. 904, Prentiss v. Bates, 93 Mich. 234; s. c. 17 L. R. A. 494; Allison's Est., 104 Ia. 130; Roberts v. Welsh, 46 Vt. 164.