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8 585. An Unjust Will Alone Causes No Presumption of Undue


Unequal distribution alone will not raise a presumption of undue influence. 46 Thus, in a case where a mother gave nearly all her property to one son who was on confidential terms with her and assisted in having the will drawn and executed, and the evidence showed that she harbored resentment against her other son on account of certain business transactions between them, these facts were not considered sufficient to establish undue influence over a testatrix of sound mind, in the absence of proof of importunity or persuasion.47

It is the formally expressed intent of the testator which prevails, and courts have neither the right nor power to change or to overthrow such intent, when properly expressed, on the ground of undue influence, in the absence of direct and substantial proof bringing the case within the established rules defining such influence. If the evidence in any case, when viewed from a standpoint most favorable to the contestant, does not show undue influence as defined by law, the case should not be submitted to the jury merely because of a suspicion or because it does not conform to ideas of propriety. 48

7 Ore. 42. See, also, Herster v. Herster, 116 Pa. St. 612, 11 Atl. 410.

46 Kitchell v. Beach, 35 N. J. Eg. 446. See, also, Kise v. Heath, 33 N. J. Eg. 239.

While an unnatural disposition of property may be considered in connection with evidence of undue influence, it is ineffectual as proof in the absence of other evidence that undue influence was

cised, because in the absence of statutory restrictions every one with testamentary capacity has the right to dispose of his property according to his own desires. -Singer v. Taylor, 90 Kan. 285, 133 Pac. 841, 842.

47 Dale v. Dale, 36 N. J. Eq. 269.

48 In re Lavinburg's Estate, 161 Cal. 536, 119 Pac. 915, 918; In re Kilborn's Estate, 162 Cal. 4, 120


8 586. When Provisions of an Unjust Will May Be Considered.

An unjust or unnatural will, although not in itself evidence of undue influence, may be considered by the jury as tending to show that the testator was subjected to wrongful influences. Courts look with suspicion upon those testamentary dispositions which disregard natural ties, and this suspicion is increased when any controlling influence is shown to have been exercised, or is seen to have been in a position to have been exercised, in opposition to the canons of descent and distribution. Although the testator has the abstract right of disposing of his estate by will as he may desire, yet a will which produces unnatural and unjust results demands close judicial scrutiny. If there is substantial evidence of undue influence, a harsh and unreasonable will calls for suspicion, and its provisions should be submitted to the jury as tending to show undue influence when such is an issue. They may be considered by the jury with all the other facts and circumstances of the case. 49

Pac. 762, 765; Beckett v. Stuart, 23 Cal. App. 373, 138 Pac. 115.

An unjust and unnatural will is not proof of mental incapacity. See $$ 353-355.

Where the issue of undue influence is raised in a will contest, the court may direct a verdict when the facts require it.-In re Carey's Estate, 56 Colo. 77, Ann. Cas. 1915B, 951, 136 Pac. 1175, 1179; In re Shell's Estate, 28 Colo. 167, 89 Am. St. Rep. 181, 53 L. R. A. 387, 63 Pac. 413.

49 Kletschka V. Kletschka, 113 Minn. 228, 129 N. W. 372; Muller v. St. Louis Hospital Assn., 5 Mo.

App. 390; affirmed, 73 Mo. 242; Catholic University v. O'Brien, 181 Mo. 68, 79 S. W. 901; Roberts v. Bartlett, 190 Mo. 680, 700, 89 S. W. 858; King v. Gilson, 191, Mo. 307, 327, 90 S. W. 367.

See $$ 354, 355, as to unjust and unnatural wills being considered on the issue of testamentary capacity.

In Minnesota it has been ruled that evidence shall not be ad. mitted to show that the distribu. tion was grossly unequal, even if offered in connection with proof of impaired intellect, in the absence of actual evidence of undue

8 587. Suspicious Circumstances Dehors the Will Are Height

ened by Unjust Provisions. Suspicious circumstances dehors the instrument may be heightened in effect by the provisions of the will itself; as where it shows an unaccountable preference for one child above another, or where a large portion of the estate is devised away from those whom natural affection would select as the beneficiaries of the testator's bounty. Accordingly, we find it held that when the testator's mind was very feeble at the time he executed the will, rendering him liable to undue influence, an unnatural and unreasonable disinheriting of one who would naturally share in the property should be shown to have been freely and intelligently made.50 Thus, if a father, without apparent cause, disinherit four of his six children, the burden influence.-In re Storer's Will, 28 and the call upon the court for Minn. 9, 8 N. W. 827.

jealous scrutiny, where the dispoIn an action to set aside, on the sitions made by a testator in moground of undue influence, a will ments of great physical weakness, which makes an unnatural and in- are extraordinary, and especially adequate provision for one of the when they indicate an insensibility children of the testator, evidence to the dictates of natural affection that prior to the execution of the and what are ordinarily recog. will advancements were made to nized as the claims of children, all the children of the testator or other near relatives, and still except the one insufficiently pro- more so if those dispositions are vided for by the will is competent in favor of unworthy objects." on the issues of undue influence 50 Esterbrook Gardner, 2 and testamentary incapacity, in Demarest (N. Y.) 543. that it tends to show an unnatural Where a bachelor, over seventy ill.-Meier v. Buchter, 197 Mo. years of age, while in a moribund 68, 7 Ann. Cas. 887, 6 L. R. A. condition, executed at the instance (N. S.) 202, 94 S. W. 883.

of his housekeeper a will she had In Jackson v. Jackson, 39 N. Y. had prepared for four years, which 153, it is said: "I recognize the gave her all of his property, and weight of authority found in the of which his relatives, and his cases relied on by the appellant, brother, who lived in an adjoining on the subject of undue influence, house, had no knowledge, the facts

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of proof is upon the two taking under the will to show the absence of undue influence.51 Where the question is susceptible of doubt, inherent justice of the provisions of the will tends to solve the doubt in favor of the proponents. 52

8 588. Influence Resulting From Family Relations.

Lawful influence, such as that arising from legitimate family and social relations, must be allowed to produce its natural results, even in influencing last wills. However great the influence thus generated may be, it has no taint of unlawfulness. There can be no presumption of its actual unlawful exercise merely from the facts that it is were considered sufficient to show also, In re Andrews' Will, 33 N. J. undue influence. - Byard v. Con. Eq. 514; Kise v. Heath, 33 N. J. over, 39 N. J. Eq. 244.

Eq. 239. See, also, Phipps v. Van Kleeck, Where a will is contrary to the 22 Hun (N. Y.) 541; McCoy V. dictates of natural affection, of McCoy, 4 Redf. (N. Y.) 54; Dem. justice, and of duty, the burden mert v. Schnell, 4 Redf. (N. Y.) is on the proponents of giving 409.

some reasonable explanation of its Where for three months before unnatural character, or at least, executing her will a testatrix in that it was not the result of men. feeble health was in personal in. tal defect, obliquity, or pervertercourse with a son who was ap- sion.-Meier V. Buchter, 197 Mo. parently hostile to her other son, 68, 7 Ann, Cas. 887, 6 L. R. A. and who prevented the latter from (N. S.) 202, 94 S. W. 883; Matter visiting his mother, and under of Cleveland's Will, 28 Misc. Rep. these circumstances the will was 369, 59 N. Y. Supp. 985. written devising her whole fortune It is competent to show that no of forty-five thousand dollars to foundation existed for the excluthe former, except two thousand sion by the testator of the children dollars to the children of the lat. of his first marriage from particiter, the facts were considered suffi- pation in his estate. - Mullen v. cient to show undue influence.- Helderman, 87 N. C. 471. Dale v. Dale, 38 N. J. Eq. 274. See, 52 Estate of Williams, 13 Phila. also, Greenwood v. Cline, 7 Ore. 17. (Pa.) 302, 303; Patterson v. Pat

51 Gay V. Gillilan, 92 Mo. 250, terson, 6 Serg. & R. (Pa.) 55. 1 Am. St. Rep. 712, 5 S. W. 7. See,


known to have existed and that it has manifestly operated on the testator's mind as a reason for his testamentary dispositions. Such influences are naturally very unequal and naturally productive of inequalities in distribution; but as they are lawful, and as the law can not criticize and measure them so as to attribute to them their proper effect, no will can be condemned because the existence of such influences is proved, or because the will contains in itself proof of their effect. It is only when such an influence is unduly exerted so as to prevent the will from being truly the act of the testator, that the law condemns it as a vicious element of the testamentary act.53 A broad distinction as to the effect of influence has been drawn where each of two legatees stands in a confidential relationship to the testator, one being a stranger and the

63 Dean v. Negley, 41 Pa. St. 312, of such a kind as to be peculiarly 317, 80 Am. Dec. 620; In re Weed's acceptable to her, and to the prejuWill, 143 App. Div. 822, 127 N. Y. dice and disappointment of others, Supp. 966.

-Small v. Small, 4 Greenleaf, (4 If a wife by her virtues has Me.) 220, 16 Am, Dec. 253. gained such an ascendency over In a New Jersey case a charge her husband, and so riveted his of undue influence was considered affections that her good pleasure not to be sustained by the fact is a law to him, such an influence that a testator shortly after the can never be a reason for im. discharge of a son from an insane peaching a will made in her favor, asylum where he had been placed even to the exclusion of the resi. by his brothers in good faith, redue of his family; nor would it voked a devise of a farm to him, be safe to set aside a will on the and, by codicil, gave him instead ground of influence, importunity, an annuity of a hundred dollars, or undue advantage taken of the and

thereafter attempted to testator by his wife, though it change the codicil, but merely for should be proved she possessed a the purpose of increasing the an. powerful influence over his mind nuity to two hundred dollars.and conduct in the general con- Conover v. Conover, (N. J.) 8 Atl. cerns of life, unless there should 500. be proof that such influence was There is no presumption that specially exerted to procure a will the will favoring a parent or a

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