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A testator may be aided by the views of others in arriving at a just conclusion as to the testamentary disposition of his property, the same as in the ordinary transactions of life. If the influence is disinterested, no inference can arise that it was unduly or improperly exercised or that the testator was deceived by unfair means.31 Suggestion, advice, persuasion, or even importunity, does not vitiate a will where the testator possesses testamentary capacity and is free and unrestrained in exercising his own volition.32

$ 581. The Same Subject.

Attempted coercion which leaves the testator's mind free to act is not sufficient to establish undue influence. The provisions of a will may be suggested to a testator, yet if he possesses testamentary capacity and is able to comprehend the suggestion and voluntarily adopts it, the will is valid. Importunity which vitiates the instrument must be of such a nature and degree that the testator is

31 Hall v. Hall, L. R. 1 P. & D. Mo. 197, 38 S. W. 932, 39 S. W. 481; In re Harrison's Will, 1 B. 771; Turner v. Anderson, 236 Mo. Mon. (40 Ky.) 351; In re Hess' 523, 139 S. W. 180; In re PatterWill, 48 Minn. 504, 31 Am. St. Rep. son's Estate, 68 Wash. 377, 123 665, 51 N. W. 614.

Pac. 515, 518; In re Tresidder's 32 In re McDevitt, 95 Cal. 17, 30 Estate, 70 Wash. 15, 125 Pac. 1034, Pac. 101; In re Kilborn's Will, 1035. 162 Cal. 4, 120 Pac. 762; In re Mor. It was held that the fact that cel's Estate, 162 Cal. 188, 121 Pac. the beneficiaries of the will hav. 733; In re Higgins' Estate, 156 ing by kind offices and congenial Cal. 257, 104 Pac. 6; In re Rick's intercourse acquired considerable Estate, 160 Cal. 450, 117 Pac. 532; influence over the testatrix, and Lucas v. Cannon, 13 Bush (Ky.) having requested, or "teased” her 650; Small v. Small, 4 Greenl. to make provisions in their favor, (Me.) 220, 16 Am. Dec, 253; Mitch- was not sufficient to establish ell V. Mitchell, 43 Minn. 73, 44 undue influence. - McCulloch N. W. 885; Jackson v. Hardin, 83 Campbell, 49 Ark. 367, 5 S. W. 590. Mo. 175; McFadin v. Catron, 138

V. 33

unable to resist it; but the mere fact that he was, at the time of the execution of his will, surrounded by interested persons, does not render the instrument invalid. 38 Importunities and general dictatorial conduct, unless connected with the act of making the will, do not establish mental coercion: this is especially true when the testator at the time of executing his will was surrounded by all the safeguards and precautions which the statute prescribes.34 It is not wrongful for a person by honest advice or persuasion to influence a testator to make a will in his favor if such influence is exerted by means of fair speech, argument or kind conduct. 36

8 582. Soundness of Mind of Testator: How Considered.

Although it be conceded that the testator was of sound mind, in the best of health, possessing unquestioned testamentary capacity, yet such facts do not imply immunity from undue influence. The theory of the issue is that the testator did not freely exercise such testamentary capacity.36 A person of strong mind and body may be

33 Constable v. Tufnell, 4 Hagg. Ecc. 465.

34 In re Caffrey's Will, 95 Misc. Rep. 466, 159 N. Y. Supp. 99, 103.

35 Chambers v. Brady, 100 Iowa 622, 69 N. W. 1015; Townsend v. Townsend, 128 Iowa 621, 105 N. W. 110; In re Dobals' Estate, (Iowa) 157 N. W. 169, 170; In re Ferris' Estate, (Mich.) 157 N. W. 380, 381; In re Miller's Estate, 36 Utah 228, 102 Pac. 996, 1000; In re Enos' Estate, 79 Wash. 590, 140 Pac. 677, 680.

A man enjoying the perfect confidence of his neighbor may pre

pare his neighbor's will, and may even suggest to him that a will ought to be prepared, without raising the presumption that he unduly influenced him, or that his conduct is reprehensible. - In re Ferris' Estate, (Mich.) 157 N. W. 380, 381, 382.

36 In re Patterson's Estate, 68 Wash. 377, 123 Pac. 515, 518.

There can be no undue influence unless there is a person incapable of protecting himself, as well as a wrongdoer to be resisted.-Latham v. Udell, 38 Mich. 238.

less easily influenced than one who is weaker both physically and mentally, and more evidence may be required to show that his will was overcome; but experience has shown that strong minds have been persuaded to consent to matters to which, if free from undue influence, they would not have agreed.37 If the mind of the testator was sufficiently strong to resist the influence, and if, no matter what means may have been employed, he made a disposition of his property according to his own desires, the disposition will stand because the influence was unavailing. On the other hand, although the influence exerted would have had no effect over a mind of ordinary resistance, yet if in the particular case it resulted in a disposition of property contrary to the testator's free will, the influence was undue.38 In fact, in a legal sense, undue influence can be exercised only upon those possessing testamentary capacity, for if such capacity be lacking, the testator can not make a valid will.39

8 583. Mental Weakness, in Conjunction With Other Matters,

May Raise Suspicion of Undue Influence. A circumstance, which in conjunction with others often raises a suspicion of undue influence, is the age or bodily or mental infirmity of the testator. For example, where a testator, old and suffering, at the solicitation of a friend

a 37 In re Olson's Estate, 19 Cal. Mont. 353, Ann, Cas. 1912C, 380, App. 379, 126 Pac. 171, 174.

116 Pac. 1004, 1009. The question of undue influence Where the pleadings allege men. is allied to that of testamentary tal unsoundness and undue influcapacity. See $$ 360, 361, 369. ence, the former having been

38 Leverett's Heirs v. Carlisle, shown, it is immaterial whether 19 Ala. 80; In re Hess' Will, 48 the latter was exercised or not. — Minn. 504, 31 Am. St. Rep. 665, Hannigan's Estate, Myrick's Prob. 51 N. W. 614.

(Cal.) 135. 39 In re Murphy's Estate, 43

makes a will in his favor which revokes a previous will in favor of his relations, executed when he was in full mental and bodily health, there is sufficient ground for an issue as to undue influence, and the burden of proof is upon the proponent of the later will.40 Evidence of feebleness and decrepitude, detention and slanders upon beneficiaries of an altered will, throws the burden of proof upon the proponents of the codicils.41 But age and infirmity alone will not be deemed a cause of suspicion, where the bequests are in accordance with the usual dictates of natural affection. Thus a testatrix, ninety-four years of age, without near kindred, made a will leaving all her property to one who had sustained toward her the relation of a daughter for many years. Although her memory had failed considerably, her mind was not shown to have been impaired. In view of all the facts it was decided that the will should not be set aside on the ground of undue influence.42 Slight and uncertain evidence will not establish undue influence (nor mental incapacity) where the testator, although seventy years of age, gave intelligent directions concerning the will, and was possessed of vigorous intellect at the time it was made. 43

$ 584. A Testator Has the Right to Make an Unequal Disposi

tion of His Estate.

A testator has the inherent right, subject to certain limitations imposed by statute, to make such testamentary disposition of his property as he desires. The law

40 Wilson's Appeal, 99 Pa. St. 545. See, also, Ewen v. Perrine, 5 Redf. (N. Y.) 640.

41 Swenarton v. Hancock, 22 Hun (N. Y.) 38.

42 Nor on the ground of mental II Com. on Wills-2

incapacity. - Wood's Estate, 13 Phila. (Pa.) 236.

See $$ 360, 361, 369.

43 Black v. Foljambe, 39 N. J. Eq. 234.

does not demand that a parent distribute his estate equally among his children, nor upon any basis of relative merit. Either with or without reason a parent may prefer one child to another, or may intentionally cut off all of his children and leave his property to a stranger. In such a case the only question is whether or not he was of sound mind and free from undue influence. If a parent disposes of his property to one child, although at his solicitation, but because of his great affection for him, it is not undue influence. To render the disposition invalid the influence affecting the testator or grantor—the same principle applying to deeds as to wills—must have been of such a nature as to deprive him of his free agency.44 In general, it may be said that undue influence and fraud in obtaining the testator's signature to an instrument other than that intended by him to be signed as his last will, are not to be lightly presumed; and when the evidence in support of such charges is overcome by the inherent probabilities of the case, a will is not to be rejected, even at the suit of children disinherited without apparent reason.45

44 Burt v. Quisenberry, 132 Ill. 385, 24 N. E. 622; Nicewander v. Nicewander, 151 Ill. 156, 37 N. E. 698; Waters v. Waters, 222 Ill, 26, 113 Am. St. Rep. 359, 78 N. E. 1; In re Poppleton's Estate, 158 Mich. 21, 122 N. W. 272.

The question as to the boundary of legitimate infiuence must be determined by consideration of the relation between the parties, the character, strength, and condition of each of them, the circumstances of the case, and the application of sound practical sense to the facts

of each given case. The mental and physical condition of the testator, and the provisions of the will itself, may be considered.In re Welch's Will, 6 Cal. App. 44, 91 Pac. 336, 337.

Mere discrimination between children is not proof of undue influence. — Buzalsky V. Buzalsky, 108 Minn. 422, 122 N. W. 322.

To the same effect.-Abrahams V. Woolley, 243 Ill. 365, 90 N. E. 667.

45 Hagan v. Yates, 1 Demarest (N. Y.) 584; Hubbard v. Hubbard,

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