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peace, or the like, he is unable to resist. When this is so, the act which is the result of such influence is invalid.2

8 574. Undue Influence Allied to Coercion.

In order that a testamentary act be valid the testamentary common law has always required that the testator not only be free from physical restraint, but also that his mind must be free. The technical term employed is “coerced."'8 The Roman law required that a will must originate in the free mind of the testator, and if he was coerced to make or alter his will it was voidable for that reason. The principle of wrongful coercion of the testator's mind undoubtedly originated in the Roman law, but in the spiritual courts of England, whence we derive our testamentary common law, any coercion was wrong

2 Gilbert v. Gilbert, 22 Ala. 529, 223, 239, 54 S. W. 546; Herster v. 58 Am. Dec. 268; Hall's Heirs v. Herster, 122 Pa. St. 239, 9 Am. St. Hall's Exrs., 38 Ala. 131; In re Rep. 95, 16 Atl. 342. Hess' Will, 48 Minn. 504, 31 Am. To constitute undue influence, St. Rep. 665, 51 N. W. 614; the influence must "destroy free O'Neall v. Farr, 1 Rich. L (S. C.) agency, so that the will in ques80.

tion was the result of the dominaIn Eckert v. Flowry, 43 Pa. St. tion of the mind of another, rather 46,

the following language is than the expression of the will used: "Now that is undue influ- and mind of the testator."-In re ence which amounts to constraint Miller's Estate, 36 Utah 228, 102 which substitutes the will of an. Pac. 996, 999. other for that of the testator. It 3 Williams V. Goude, 1 Hagg. may be either through threats or Ecc. 577, 581; Wingrove v. Winfraud, but, however exercised, it grove, L. R. 11 Pro. Div. 81, 82; must, in order to avoid a will, In re Campbell's Will, 136 N. Y. destroy the free agency of the Supp. 1086, 1105; In re Van Ness' testator at the time when the in- Will, 78 Misc. Rep. 592, 139 N. Y. strument is made." See, also, In Supp. 485, 492; Children's Aid So. re Snowball's Estate, 157 Cal. 301, ciety v. Loveridge, 70 N. Y. 387, 107 Pac. 598, 600; In re Ricks' 394. Estate, 160 Cal. 467, 117 Pac. 539, 4 Domat, 29, 6, 1. .545; Gordon V. Burris, 153 Mo.

ful, the term being applied in the general sense of restraint.5 Under modern practice, coercion, with reference to the testator's freedom of will, is the essence of undue influence.

5 In


8 575. Influence, to Be Undue, Must Destroy the Free Agency

of Testator. The influence on account of which a testament will be disallowed must have been such as to have destroyed freedom of action, and have consisted of coercion or importunities which could not be resisted, destroying

Hermann's Will, 87 99, 102; Matter of Van Ness' Will, Misc. Rep. 476, 150 N. Y. Supp. 78 Misc. Rep. 592, 599, 139 N. Y. 118, 125.

Supp. 485; Matter of Hermann's The Irish probate law, from its Will, 87 Misc. Rep. 476, 150 N. Y. foreign origin, its tradition and Supp. 118. its substance, more nearly resem- 7 Layman v. Conrey, 60 Md. 286; bles our own than modern Eng. Brackey v. Brackey, 151 Iowa 99, lish probate law. It is well said 130 N. W. 370; In re Caffrey's in a leading Irish case:

Will, 95 Misc. Rep. 466, 159 N. Y. "That a contestant is not en- Supp. 99, 102. titled to have an issue of undue Undue influence has been deinfluence left to the jury unless fined as influence of such a nature reasonable evidence is given: (1) that the volition of a testator is That the person charged had in- subjected to the coercion or domfluence over the testator; (2) that ination of another person.-Parhe exercised such undue influence fitt v. Lawless, (1876) L. R. 2 over him to the extent of co- P. & D. 462; Wingrove v. Winercion; and (3) that the execution grove, (1886) L. R. 11 Pro. Div. 81; of the impeached paper was pro- Baudains v. Richardson, (1906) cured by the exercise of such co- A. C. 169, at pages, 184, 185, per ercion as the causa causans of the Lord Macnaghten. act itself.” — Longford v. Purdon, Undue influence has been de1 L. R. Ir. 75, 80; In re Caffrey's fined to be a fraudulent influence Will, 95 Misc. Rep. 466, 159 N. Y. overruling the control of the mind Supp. 99, 104.

of the person operated on.--In re 6 Mason v. Bowen, 122 Ark. 407, Craven's Will, 169 N. C. 561, 86 183 S. W. 973; In re Caffrey's Will, S. E. 587. 95 Misc. Rep. 466, 159 N. Y. Supp.

the free agency of the testator, and so overpowering his volition as to produce a disposition of the property which he would not have made if left free to act. It may be exercised through threats, fraud, importunity, or by the silent, resistless power which the strong often exercise over the weak; but in order to avoid the will, it must destroy the volition of the testator at the time it was made so that the instrument, in effect, expresses the intent of some one other than the testator. 10

8 Williams v. Goude, 1 Hagg. Ecc. 577; Kinleşide v. Harrison, 2 Phillim. 449, 551; Armstrong v. Huddlestone, 1 Moore P. C. C. 478; Blakey's Heirs v. Blakey's Exx., 33 Ala. 611; Hall's Heirs V. Hall's Exrs., 38 Ala, 131; Councill v. May. hew, 172 Ala. 295, 55 So. 314; Dolliver v. Dolliver, 94 Cal. 642, 646, 30 Pac. 4; In re Welch's Estate, 6 Cal. App. 44, 91 Pac. 336, 337; Morris v. Stokes, 21 Ga. 552; Small v. Small, 4 Greenl. (4 Me.) 220, 223, 16 Am. Dec. 253; Davis v. Calvert, 5 Gill & J. (Md.) 269, 302, 25 Am. Dec. 282; Wampler v. Wampler, 9 Md. 540; Lindsey V. Stephens, 229 Mo. 600, 129 S. W. 641; McMahon v. Ryan, 20 Pa, St. 329; Eckert v. Flowry, 43 Pa. St. 46; Turner v. Cheesman, 15 N. J. Eq. 243; Gardiner v. Gardiner, 34 N. Y. 155, 162; Rollwagen v. Rollwagen, 63 N. Y. 504; Brick V. Brick, 66 N. Y. 144; Children's Aid Society v. Loveridge, 70 N. Y. 387; Coit v. Patchen, 77 N. Y. 533; Se. guine V. Seguine, 3 Keyes (42 N. Y.) 663, 669, 4 Abb. Dec. 191, 33 How. Pr. 336.

See, also, Boyse v. Rossborough, 6 H, L. Cas. 2; Newhouse v. God. win, 17 Barb. (N. Y.) 236.

9 Sheppey v. Stevens, 185 Fed. 147; In re Snowball's Estate, 157 Cal. 301, 107 Pac. 598; Whitcomb V. Whitcomb, 205 Mass. 310, 18 Ann. Cas. 410, 91 N. E. 210; Marx v. McGlynn, 88 N. Y. 357.

10 Estate of McDevitt, 95 Cal. 17, 30 Pac. 101; Estate of Motz, 136 Cal. 558, 563, 59 Pac. 294; Estate of Weber, 15 Cal. App. 224, 114 Pac. 597, 603; Goodbar v. Lidikey, 136 Ind. 1, 43 Am. St. Rep. 296, 35 N. E. 691; Schmidt v. Schmidt, 47 Minn. 451, 50 N. W. 598; In re Hess' Will, 48 Minn. 504, 31 Am. St. Rep. 665, 51 N. W. 614; In re Mueller's Will, 170 N. C. 28, 86 S. E. 719; In re Pickett's Will, 49 Ore. 127, 89 Pac. 377, 396.

Undue influence is that degree of importunity which deprives a testator of his free agency, so that the instrument executed under its operation is not his free and unconstrained act; or, to state it in other language, undue influence is any improper or wrongful con

$ 576. Undue Influence Is Determined by Effect Produced, Not

by Means Employed. The various means employed to influence testators unduly are too numerous for specific mention; but whatever destroys free agency, and constrains a person to do what is against his will, and what he would not do if left to himself, is undue influence, whether the control be exercised by physical force, threats, importunity, or any other species of mental or physical coercion. For undue influence is not measured by degree or extent, but by its effect. If it is sufficient to destroy free agency it is undue, even if it is slight.11 It is safe to say, however, that evidence neither of kind nor unkind treatment can alone suffice to establish undue influence. 12

8 577. Influence, to Be Undue, Must Bear Directly on the Tes

tamentary Act.

Iniluence to be undue so as to avoid a will must bear directly upon the testamentary act; it must destroy the straint, urgency, or persuasion ter upon him would so affect him whereby the will of a person is that, for the sake of quietness, he overcome, and he is induced to do might do that which he did not an act which he would not do it want to do, and which, if his left to act freely.-In re Miller's health had been better, or his will Estate, 36 Utah 228, 102 Pac. 996, stronger, he would not have done. 999,

Such a case would constitute ... 11 Leverett's Heirs v. Carlisle, coercion as truly as force or du19 Ala. 80; In re Hess' Will, 48 ress." See, also, Ginter v. Ginter, Minn. 504, 31 Am. St. Rep. 665, 79 Kan. 721, 22 L. R. A. (N. S.) 51 N. W. 614; Haydock's Exrs. V. 1024, 101 Pac. 634; In re Hermann's Haydock, 33 N. J. Eq. 494.

Will, 87 Misc. Rep. 476, 150 N. Y. In Hoffman v. Hoffman, 192 Mass. Supp. 118; Ekern v. Erickson, 416, 78 N. E. 492, the court says: (S. D.) 157 N. W. 1062, 1066. "There is no hard and fast rule. 12 Tingley V. Cowgill, 48 Mo. A person may be so situated, so 291; In re Gleespin's Will, 26 N. J. weak and feeble, or so dependent Eq. 523; Tawney v. Long, 76 Pa. on another, for instance, that mere St. 106. talking to him or pressing a mat

free agency of the testator at the time and in the act of the making of his testament.18 The influence must operate upon the mind of the testator in relation to the making of the will. It is not proof of undue influence to show that coercion was exercised in respect to other matters ;14

13 In re McDevitt, 95 Cal. 17, 33, 30 Pac. 101; Estate of Langford, 108 Cal. 608, 41 Pac. 701; Estate of Calkins, 112 Cal. 296, 44 Pac. 577; In re Wilson's Estate, 117 Cal. 262, 49 Pac. 172, 711; Estate of Donovan, 140 Cal. 390, 73 Pac. 1081; Estate of Higgins, 156 Cal. 257, 104 Pac. 6, 9; In re Shaw's Will, 11 Phila. (Pa.) 51.

"The undue influence which will avoid a will must be such as operates upon the mind of the testator at the time of making the will, and must be an influence relating to the will itself."-In re Kaufman's Estate, 117 Cal. 288, 295, 59 Am. St. Rep. 179, 49 Pac. 192. See, also, In re Rick's Estate, 160 Cal. 450, 117 Pac. 532, 536.

Undue influence must have existed and been exercised at the time the will is made. Herr's Estate, 251 Pa. St. 223, 96 Atl. 464.

14 Seguine v. Seguine, 3 Keyes (42 N. Y.) 663, 669, 4 Abb. Dec. 191, 35 How. Pr. 336; In re Calfrey's Will, 95 Misc. Rep. 466, 159 N. Y. Supp. 99, 103.

"It is extremely difficult to state in the abstract what acts will con. stitute undue influence. . . . It is sufficient to say that, allowing a fair latitude of construction, they must range themselves under one

or other of these heads-coercion or fraud. .. In a popular sense, we often speak of a person exercising undue influence over another, when the influence certainly is not of a nature which would invalidate a will, A young man is often led into dissipation by following the example of a companion of riper years, to whom he looks up and who leads him to consider habits of dissipation as venial, and perhaps even credit. able; the companion is then correctly said to exercise an undue influence. But if, in these circum. stances, the young man, influenced by his regard for the person who has thus led him astray, were to make a will, and leave him everything he possessed, such a will certainly could not be impeached on the ground of undue influence; nor would the case be altered merely because the companion had urged, or even importuned, the young man so to dispose of his property; provided only that in making such a will, the young man was really carry. ing into effect his own intention, formed without either coercion or fraud."-Boyse v. Rossborough, 6 H. L. Cas. 6.

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