it must be used directly to procure the will and must amount to coercion of the testator's mind.15 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 § 578. The Same Subject: Must Not Be Remote. Influence exercised some considerable time before,17 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;1o 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 Cal. 301, 107 Pac. 598, 600; In re Keegan's Estate, 139 Cal. 123, 127, 72 Pac. 828; In re Morcel's Estate, 162 Cal. 188, 121 Pac. 733, 735; In re Mueller's Estate, 170 N. C. 28, 86 S. E. 719; In re Holman's Will, 42 Ore. 345, 358, 70 Pac. 908; In re Pickett's Will, 49 Ore. 127, 89 Pac. 377, 386; In re Miller's Estate, 36 Utah 228, 102 Pac. 996, 999. 16 Jones v. Godrich, 5 Moore P. C. C. 16, 40; Rutherford v. Morris, 77 III. 397; McMahon v. Ryan, 20 Pa. St. 329; Eckert v. Flowry, 43 Pa. St. 46. If a testator at about the time a will is made is unduly controlled by the beneficiary in other important matters, an inference may be drawn that the same undue influence was exercised with regard to the will.-Fairbank v. Fairbank, 92 Kan. 45, 139 Pac. 1011. 17 McMahon v. Ryan, 20 Pa. St. 329; Eckert v. Flowry, 43 Pa. St. 46; Thompson v. Kyner, 65 Pa. St. 368; Wainwright's Appeal, 89 Pa. St. 220, 222. 18 Boyse v. Rossborough, 6 H. L. Cas. 2, 51; Rossborough v. Boyse, 3 Ir. Ch. 489, 510. 19 Batchelder v. Batchelder, 139 Mass. 1, 29 N. E. 61. 20 Ketchum v. Stearns, 76 Mo. 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 v. Pierce, 38 Mich. 412; In re Hess' Will, 48 Minn. 504, 31 Am. St. Rep. 665, 51 N. W. 614. 22 Matter of Van Ness' Will, 78 Misc. Rep. 592, 599, 139 N. Y. Supp. 485; Brick v. Brick, 66 N. Y. 144, 149; Coit v. Patchen, 77 N. Y. 533, 539. 23 Teckenbrock v. McLaughlin, 209 Mo. 533, 108 S. W. 46; Winn v. Grier, 217 Mo. 420, 117 S. W. 48; In re Holman's Will, 42 Ore. 345, 358, 70 Pac. 908; In re Patterson's Estate, 68 Wash. 377, 123 Pac. 515, 518. In Eastis v. Montgomery, 93 Ala. 293, 300, 9 So. 311, the court said: "The undue influence which will avoid a will must amount to coercion or fraud-an influence tantamount to force or fear, and which destroys the free agency of the party, and constrains him to do what is against his will. Mere persuasion or argument addressed to the judgment or affections, in which there is no fraud or deceit, does not constitute undue infiluence." In Jackson v. Hardin, 83 Mo. 175, 185, the supreme court of Missouri said: "The influence denounced by law must be such as amounts to overpersuasion, coercion, or force, destroying the free agency and will power of the testator. It must not be merely the influence of affection or attachment, nor the desire of gratifying the wishes of one beloved, respected, and trusted by the testator." 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. Any degree of influence over another, acquired by kindness and § 580. Advice, Argument, Flattery, or Persuasion, Alone, Does Not Establish Undue Influence. Luebbert v. Brockmeyer, 158 Mo. "As to Mrs. Boltz, the residuary legatee, there is, in my opinion, no evidence whatever of 'undue influence.' Doubtless, when she discovered that the decedent had a small estate, she was consistently and deliberately kind to the decedent; but that is not forbidden by the law."-In re Goodhart, 173 App. Div. 256, 159 N. Y. Supp. 261, 262. 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 meaning of the law, and although the jury may believe from the evidence, that the deceased, in making her will, was influenced by any of the said defendants, still, if the jury further believe from the evidence that the influence which was so exerted was only such as was gained over the deceased by kindness and friendly attention to her, then such influence can not be regarded in law as undue influence. Influence secured through affection is not wrongful.-Waters v. Waters, 222 Ill. 26, 113 Am. St. Rep. 359, 78 N. E. 1; Thompson v. Bennett, 194 Ill. 57, 62 N. E. 321; Nicewander v. Nicewander, 151 Ill. 156, 37 N. E. 698; Francis v. Wilkinson, 147 III. 370, 35 N. E. 150; Burt v. Quisenberry, 132 Ill. 385, 24 N. E. 622. The testator, who was 90 years of age, made a will in which his principal beneficiary was one to whom he was not related, but with whom he had lived for a short time prior to his death. The court said: "Influence which is gained alone through kindness, and springs from the fondness of affection, is not of that character which the law condemns as undue, and because of which a last will and As put by Mr. Justice Moore, in Re Darst's Will (Hurley v. O'Brien), 34 Ore. 58-65, 54 Pac. 947: "Influence arising from grati tude, affection, or esteem is not undue, nor can it become such unless it destroys the free agency of the testator at the time the instrument is executed, and shows that the disposition which he attempted to make of his property therein results from the fraud, imposition, and restraint of the person whose superior will prompts the execu tion of the testament in the particular manner which the testator adopts." See, also, In re Turner's Will, 51 Ore. 1, 93 Pac. 461, 464. A daughter left for her own home, and left the duty of looking to the mother's comfort fall again upon the sons. One of these sons 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,20 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 towards her during his whole life seems to have been uniformly courteous and kind. While the mother had had trouble at different times with her other son, and with her daughter whenever they met, her relations with this son were always harmonious, and of a character unusually affectionate, even for mother and son. The court said: "It is not surprising nor unnatural, therefore, that she should make him the object of her greatest bounty; and, while her affection for this son may have influenced her to remember him in her will to the partial exclusion of her other son and her daughter, it is not that character of influence that is classed by the law as undue influence, or that character of influence that authorizes the courts to vacate and hold for naught last wills and testaments." -Converse v. Mix, 63 Wash. 318, 115 Pac. 305. 25 Yoe v. McCord, 74 Ill. 33; Bundy v. McKnight, 48 Ind. 502, 516, 518; Elliott's Will, 2 J. J. Marsh (Ky.) 340; Sechrest v. Edwards, 4 Metc. (Ky.) 163; Harrison's Will, 1 B. Mon. (40 Ky.) 351; Wise v. Foote, 81 Ky. 10; Davis v. Calvert, 5 Gill & J. (Md.) 269, 301, 25 Am. Dec. 282; Schofield V. Walker, 58 Mich. 96, 24 N. W. 624; Gilreath v. Gilreath, 57 N. C. 142; Tyler v. Gardiner, 35 N. Y. 559. Even threats of estrangement and non-intercourse may be used.. Moore's Exrs. v. Blauvelt, 15 N. J. Eq. 367. 26 Tucker V. Field, 5 Redf. (N. Y.) 139. 27 Wise v. Foote, 81 Ky. 10; Wait v. Breeze, 18 Hun (N. Y.) 403. 28 Bundy v. McKnight, 48 Ind. 502, 516, 518. 29 Bundy v. McKnight, 48 Ind. 502. 30 Estate of Williams, 13 Phila. (Pa.) 302, 303. |