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it must be used directly to procure the will and must amount to coercion of the testator's mind.16 It must have been exercised to procure the making or executing of the will itself; exerted in regard to something else, it is at most only a circumstance, leading to a suspicion that it may have been exercised in connection with the will.16

8 578. The Same Subject: Must Not Be Remote.

Influence exercised some considerable time before, unless it continue until the time of making the will, is not considered properly to invalidate it.18 Evidence of the relations between a husband and wife, existing eight years before the making of the will, may be properly excluded ;19 and influence shown to have existed eleven years before the execution of the will, with no proof of continuance, is too remote to be considered undue.20 No technical period can be stated within which the evidence should be limited, but influence is more readily shown by recent than by past events, and testimony of fresh events

15 In re Snowball's Estate, 157 by the beneficiary in other imporCal. 301, 107 Pac. 598, 600; In re tant matters, an inference may be Keegan's Estate, 139 Cal. 123, 127, drawn that the same undue influ. 72 Pac. 828; In re Morcel's Estate, ence was exercised with regard to 162 Cal. 188, 121 Pac. 733, 735; In the will.-Fairbank v. Fairbank, 92 re Mueller's Estate, 170 N. C. 28, Kan. 45, 139 Pac. 1011. 86 S. E. 719; In re Holman's Will, 17 McMahon v. Ryan, 20 Pa. St. 42 Ore. 345, 358, 70 Pac. 908; In re 329; Eckert v. Flowry, 43 Pa. St. Pickett's Will, 49 Ore. 127, 89 Pac. 46; Thompson v. Kyner, 65 Pa. St. 377, 386; In re Miller's Estate, 36 368; Wainwright's Appeal, 89 Pa. Utah 228, 102 Pac. 996, 999.

St. 220, 222. 16 Jones v. Godrich, 5 Moore 18 Boyse v. Rossborough, 6 H. L. P. C. C. 16, 40; Rutherford v. Mor. Cas. 2, 51; Rossborough v. Boyse, ris, 77 Ill. 397; McMahon v. Ryan, 3 Ir. Ch. 489, 510. 20 Pa. St. 329; Eckert v. Flowry, 19 Batchelder v. Batchelder, 139 43 Pa, St. 46.

Mass. 1, 29 N. E. 61. Il a testator at about the time 20 Ketchum y. Stearns, 76 Mo. a will is made is unduly controlled 396.

is less likely to be manufactured than that of transactions long past.21

$ 579. Influence Resulting From Kindness or Affection Is Not

Wrongful. It may be stated generally that any wrongful interference, by which the testator's freedom of will is overcome, is fatal to his testamentary act provided that such interference amounts to coercion.22 But the character of influence which the law denounces as undue is that which is exercised through persuasion, force or fraud whereby the free agency of the mind of the testator is destroyed and the will of another is substituted in its place. It is such influence, as distinguished from that exercised through kindness or affection, which the law denounces.23 A favor expressed by a testator in his will may be the result of devoted attachment, self sacrificing kindness

21 Pierce y. Pierce, 38 Mich. 412; destroys the free agency of the In re Hess' Will, 48 Minn. 504, party, and constrains him to do 31 Am. St. Rep. 665, 51 N. W. 614. what is against his will. Mere per

22 Matter of Van Ness' Will, 78 suasion or argument addressed to Misc. Rep. 592, 599, 139 N. Y. Supp. the judgment or affections, in 485; Brick v. Brick, 66 N. Y. 144, which there is no fraud or deceit, 149; Coit v. Patchen, 77 N. Y. 533, does not constitute undue influ539.

ence." 23 Teckenbrock v. McLaughlin, In Jackson v. Hardin, 83 Mo. 175, 209 Mo. 533, 108 S. W. 46; Winn v. 185, the supreme court of Missouri Grier, 217 Mo. 420, 117 S. W. 48; said: “The influence denounced In re Holman's Will, 42 Ore. 345, by law must be such as amounts 358, 70 Pac. 908; In re Patterson's to overpersuasion, coercion, Estate, 68 Wash, 377, 123 Pac. 515, force, destroying the free agency 518.

and will power of the testator. It In Eastis v. Montgomery, 93 Ala. must not be merely the influence 293, 300, 9 So. 311, the court said: of affection or attachment, nor the "The undue influence which will desire of gratifying the wishes of avoid a will must amount to coer- one beloved, respected, and trusted cion or fraud-an influence tanta- by the testator." mount to force or fear, and which

or

and beneficent ministrations of friendship and love. These influences are not undue, since they bring preferment as their natural reward, although they influence him to provide for the pleasure and comfort of the one so exercising the influence. Other influences less worthy may still be lawful; they may be specific and direct without being undue. It is not improper to advise, to persuade, to solicit, to importune, to entreat, or to implore. Appeals may be made to vanity and to pride, to the sense of justice and to the obligation of duty. The ties of kindred and of friendship, the sentiment of gratitude or of pity, may be urged as reasons why a testator should not forget in his will a person or persons so deserving to be remembered. The mere fact that the mind of the testator is brought into harmony with such appeals or importunities is not sufficient to show undue influence; his views must be radically changed, for so long as his mind is not overborne and rendered incapable of acting freely, so long does he remain a free agent and his will is not the will of another. 24

24 Hall v. Hall, L. R. 1 P. & D. 481; Mackall v. Mackall, 135 U. S. 167, 34 L. Ed. 84, 10 Sup. Ct. 705; Smith v. Boswell, 93 Ark. 66, 124 S. W. 264; In re Rick's Estate, 160 Cal. 450, 117 Pac. 532, 536; Ginter V. Ginter, 79 Kan. 721, 22 L. R. A. (N. S.) 1024, 101 Pac. 634; In re Harrison's Will, 1 B. Mon. (40 Ky.) 351; Watson's Exr. V. Watson, 137 Ky. 25, 121 S. W. 626; In re Hess' Will, 48 Minn. 504, 31 Am. St. Rep. 665, 51 N. W. 614; Campbell v. Carlisle, 162 Mo. 634, 63 S. W. 701; In re Gleespin's Will, 26 N. J. Eq. 523; Trumbull v. Gib

bons, 22 N. J. L. 117; Howell v. Taylor, 50 N. J. Eq. 428, 26 Atl. 566; In re Eatley's Will, 82 N. J. Eq. 591, 89 Atl. 776, 780; In re Mannion's Estate, (N. J.) 95 Atl. 988; In re Goodhart, 173 App. Div. 256, 159 N. Y. Supp. 261, 262; In re Darst's Will (Hurley V. O'Brien), 34 Ore. 58, 54 Pac. 947; In re Turner's Will, 51 Ore. 1, 93 Pac. 461, 464; Converse v. Mix, 63 Wash, 318, 115 Pac. 305; In re Patterson's Estate, 68 Wash. 377, 123 Pac. 515, 518.

Any degree of influence another, acquired by kindness and

over

8 580. Advice, Argument, Flattery, or Persuasion, Alone, Does

Not Establish Undue Influence. It is not every influence brought to bear upon a testator in the making of his will that is to be regarded as undue. attention, can never constitute testament may be set aside." undue influence within the mean- Luebbert v. Brockmeyer, 158 Mo. ing of the law, and although the App. 196, 138 S. W. 92. jury may believe from the evi. As to Mrs. Boltz, the residuary dence, that the deceased, in mak- legatee, there is, in my opinion, no ing her will, was influenced by evidence whatever of 'undue inany of the said defendants, still, fluence.' Doubtless, when she disif the jury further believe from covered that the decedent had a the evidence that the influence small estate, she was consistently which was so exerted was only and deliberately kind to the de. such as was gained over the de- cedent; but that is not forbidden ceased by kindness and friendly by the law."-In re Goodhart, 173 attention to her, then such influ- App. Div. 256, 159 N. Y. Supp. 261, ence can not be regarded in law 262. as undue influence. Influence se- As put by Mr. Justice Moore, cured through affection is not in Re Darst's Will (Hurley V. wrongful.--Waters v. Waters, 222 O'Brien), 34 Ore. 58-65, 54 Pac. Ill. 26, 113 Am. St. Rep. 359, 78 947: "Influence arising from gratiN. E. 1; Thompson v. Bennett, 194 tude, affection, or esteem is not Ill. 57, 62 N. E. 321; Nicewander undue, nor can it become such unv. Nicewander, 151 Ill. 156, 37 less it destroys the free agency of N. E. 698; Francis v. Wilkinson, the testator at the time the instru. 147 Ill. 370, 35 N. E. 150; Burt v. ment is executed, and shows that Quisenberry, 132 Ill. 385, 24 N. E. the disposition which he attempted 622.

to make of his property therein The testator, who was 90 years results from the fraud, imposition, of age, made a will in which his and restraint of the person whose principal beneficiary was one to superior will prompts the execuwhom he was not related, but with tion of the testament in the parwhom he had lived for a short ticular manner which the testator time prior to his death. The court adopts." See, also, In re Turner's said: "Influence which is gained Will, 51 Ore. 1, 93 Pac. 461, 464. alone through kindness, and A daughter left for her own springs from the fondness of affec- home, and left the duty of looking tion, is not of that character which to the mother's comfort fall again the law condemns ás undue, and upon the sons. One of these sons because of which a last will and had been the mother's favorite That which is obtained by argument, flattery, persuasion, appeals to the affection,25 and good feeling of the testator, although influencing his better judgment,28 does not necessarily vitiate the will, unless his free agency be thereby destroyed,27 notwithstanding that but for such influence the will might not have been made.28 The test of the unlawfulness of the influence is its effect upon the testator's free agency, and no influence is undue where free agency is not essentially impaired.29 So the services of a friend or relative of a testator may be lawfully urged as an argument to persuade him to the giving of a legacy.30 from his babyhood. His conduct 25 Yoe v. McCord, 74 Ill. 33; towards her during his whole life Bundy v. McKnight, 48 Ind. 502, seems to have been uniformly 516, 518; Elliott's Will, 2 J. J. courteous and kind. While the Marsh (Ky.) 340; Sechrest v. Edmother had had trouble at differ- wards, 4 Metc. (Ky.) 163; Harrient times with her other son, and son's Will, 1 B. Mon. (40 Ky.) 351; with her daughter whenever they Wise v. Foote, 81 Ky. 10; Davis v. met, her relations with this son Calvert, 5 Gill & J. (Md.) 269, 301, were always harmonious, and of a 25 Am. Dec. 282; Schofield v. character unusually affectionate, Walker, 58 Mich. 96, 24 N. W. 624; eren for mother and son. The Gilreath v. Gilreath, 57 N. C. 142; court said: "It is not surprising Tyler v. Gardiner, 35 N. Y, 559. nor unnatural, therefore, that she Even threats of estrangement should make him the object of her and non-intercourse may be used.. greatest bounty; and, while her Moore's Exrs. V. Blauvelt, 15 affection for this son may have in. N. J. Eg. 367. fluenced her to remember him in 26 Tucker Field, 5 Redf. her will to the partial exclusion (N. Y.) 139. of her other son and her daughter, 27 Wise V. Foote, 81 Ky. 10; it is not that character of influ- Wait v. Breeze, 18 Hun (N. Y.) ence that is classed by the law as 403. undue influence, or that character 28 Bundy V. McKnight, 48 Ind. of influence that authorizes the 502, 516, 518. courts to vacate and hold for 29 Bundy V. McKnight, 48 Ind. naught last wills and testaments." 502. - Converse v. Mix, 63 Wash. 318, 30 Estate of Williams, 13 Phila. 115 Pac. 305.

(Pa.) 302, 303.

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