then every will induced by an unlawful relation is void, though the testator might not have been "under any restraint"; but this, it has been shown, is contrary to the general policy of the law. If it be the latter, then the proof of the unlawful relation should go, with the other evidence, to the jury, to enable them to determine the question of undue influence. We think this would be in accordance with the law, and, in general, best subserve the ends of justice.

We have not been furnished with authorities, nor do we see any sufficient reason, to warrant us in making this class of cases an exception to the general principles relating to the validity of wills. It is true that the position of the counsel for the plaintiffs is strongly supported obiter in the able opinion delivered in the case of Dean v. Negley, 41 Pa. St. 312. The point there ruled, however, went to the extent only that proof of the making a will under and in the direction of an unlawful relation like that in this case was such evidence of undue influence "that it may justify a verdict against the validity of the will"; and it was held, therefore, that it was error to exclude it from the jury. That the same court must hold the question to be one "of fact, merely," and not "a presumption of law," is shown in a still more recent case, where it was declared that "undue influence, to avoid a will, must be such as to overcome the free agency of the testator at the time the instrument was made." Eckert v. Flowry, 43 Pa. St. 46; Redf. Wills, 534. The propositions which the counsel for the plaintiff's requested the court to give in its charge to the jury, although separately numbered, were in fact, many of them, a connected series of propositions, dependent one upon another, some of which, we have shown, the court could not properly give. Other independent propositions were properly refused, as has been shown, and the remaining ones were embraced in the charge. There was, therefore, no error in refusing to charge as requested. For the reasons already stated we think that there was no error in the charge as given to the jury by the court of common pleas. It follows that the district court rightfully affirmed the judgment of that court, and that the judgment of the district court must therefore be affirmed. WHITE, WELCH, BRINKERHOFF, and SCOTT, JJ., concurred.

HALL v. HALL.

L. R. 1 P. & D. 481. English Court of Probate, 1868.

This was a testamentary suit in which the plaintiff, Ann Hall, propounded the will of her deceased husband, John Hall. The defendant, William Hall, the brother of the deceased, pleaded that the will was obtained by the undue influence of the plaintiff. Issue was joined on this plea, and the cause was tried on the 6th and 7th of March, 1868, before Sir J. P. WILDE, by a special jury. The deceased was a farmer and land valuer near Nottingham, and by the will in question he left the whole of his property, of the value of between £15,000 and £20,000, to his wife.

Sir J. P. WILDE, in summing up, gave the following direction to the jury on the question of undue influence: To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like,-these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of some one else's.

His Lordship went on to say that in this case the question was one of credibility, for according to the evidence on the one side, the plaintiff had procured the will by violence, threats, and intimidation, whilst, according to the evidence of the

plaintiff and her witnesses, she had not even resorted to persuasion.

The jury found that the plea of undue influence was proved. The Court pronounced against the will and condemned the plaintiff in costs.

IN RE BERNSEE'S WILL.

17 N. Y. Supp. 669. 1892.

Appeal from decree of Surrogate of Kings County, admitting to probate a paper purporting to be the will of Adelina D. Bernsee, deceased. Two questions were raised on the appeal: first, whether due execution was sufficiently proved, and second, whether the will was framed by undue influence.

PRATT, J. (After finding that due execution had not been proved.) 2. Was the will framed by undue influence? While this fact is to be proved, not presumed, the undisputed facts tend strongly to the conclusion that such was the case. A prior will which divided the property equally between the children of testatrix, two sons and two daughters; uninterrupted affectionate relations between testatrix and at least one of the daughters; her residence with the sons at the time of the making of the will; her refusal, or, at least, neglect, to see either daughter after she took up her residence with the sons; the refusal of the daughters to recognize the alleged wife of one of the sons, as not married to him; the declaration in the will of unfilial conduct of the daughters, against the uncontradicted proof; the failure to call the draughtsman of the will; the presence of the son at the time of the execution, when, if Mr. Black is to be believed, he had nothing to do, and did nothing; her nervous and very excited condition at the time, which is not disputed; her entire disinheritance of her daughters, and the giving of her entire estate to her sons, with whom she lived,-all, unexplained, tend powerfully to show undue influence. These circumstances called strongly upon the surrogate for the exercise of his discretion in calling for the draughtsman of the will to ascertain who prompted it, and the condi

tions surrounding its preparation. Upon the facts, therefore, the judgment should be reversed. There were several rulings of the surrogate, in the rejection and striking out of testimony, which appear to have been erroneous, but which it is unnecessary to consider.

DYKMAN, J., concurring. BARNARD, P. J., dissenting.

BUSH v. LISLE.

89 Ky. 393. 1889.

LEWIS, C. J. This is an appeal from a judgment rendered on verdict of the jury finding a paper dated October 30, 1876, and probated in the county court, not to be the true last will and testament of F. M. Lisle, who died in February, 1879, at about the age of 58 years, without wife or child. He left no parents, his mother having died before he did, though subsequent to date of the paper, those who would have inherited his estate in case of no will, being one brother, three sisters, and children of each of four sisters who were dead. But he devised, or attempted to devise, the whole of his estate, of value about $20,000, consisting of choses in action, money, and land, to his sister Minerva Bush, her four daughters, and husband, Robert E. Bush; there being given to the last named, who was appointed executor, five shares of bank stock, to each of the four nieces specified land and money, and to the sister the residue. The grounds upon which the other heirs at law assail the validity of the paper as a will are want of testamentary capacity and undue influence. It appears that previous to 1866 the decedent had been a professional gambler, but as the effect of syphilis contracted many years previously, from which he never recovered, and probably of excess and dissipation, he became a wreck physically, losing his hair, teeth, eyesight partially, and use of his lower limbs to such an extent as to make crutches necessary for locomotion; and in that condition he went to the residence of a double cousin in Fayette County, Rufus Lisle, with whom he stayed until 1867 or 1868, when

he removed to the house of Robert E. Bush, in Clark County. where he remained until his death; a room adjoining the dwelling-house having been constructed at his own instance and expense for him to occupy. Within a year or two after going to the house of his brother-in-law he became totally blind, unable to walk, and from his mouth, which was drawn out of its natural shape, offensive matter escaped. So he thereafter required and received from those to whom he attempted to give his estate the most assiduous, careful, and affectionate nursing and attention. He had, before going there, as relief from his intense suffering in his lower limbs, contracted and continued to his death, the habit of using morphine, a comparatively large quantity of which he daily consumed. It further appears that during paroxysms of physical pain he was excessively and offensively profane and blasphemous; and from these two habits, both mental incapacity to make a will and undue influence are sought to be deduced as existing facts. There is no evidence whatever of unreasonable prejudice on his part towards any of the contestants, nor that he was swayed or prompted to abandon any fixed purpose, or to ignore any worthy or recognized claim on his bounty. On the contrary, ten years before the date of the paper, when his situation was less deplorable than it afterwards became, and when there is no evidence that he was not entirely rational, he offered to give his whole estate to his cousin, Rufus Lisle, to secure a home and needful care and attention while he lived, and the disposition he finally made of it was consistent, natural, and commendable, because intended as a grateful recompense, no more probably than adequate, to those who did minister to him in affliction. The person who wrote the paper testifies that besides himself no one was present; that the decedent was in full possession of his mental faculties, and, without aid or suggestion, dictated the paper as written; and the provisions of it show not only a preconceived and fixed plan for disposing of his estate, and full knowledge of the character and value of it, and the persons to whom it was left, but an unusual intelligence of the legal restraints and limitations put upon the devises to his nieces.

Of the very large number of witnesses who testified on the trial but three express any doubt of capacity of the decedent