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other a child. In the latter instance, the relation of confidence and participation in the estate is natural. 54

ence.

8 589. The Same Subject.

Something is due to the dictates of humanity, and it must not be said of the child who attempts to soothe the last sufferings of her parent, that she is guilty of imposition, even if the charge is preferred by those who have shielded themselves from suspicion of influence by carefully abstaining from offices of affection.55 And a wife may properly influence the making of her husband's will for her own benefit,56 or for the benefit of others, provided she do not act fraudulently or extort benefits from her husband when he is not in a condition to exercise his faculties as a free agent,57 or unless there is proof that child is the result of undue infu- ents; it is his right to ask with

- Craven's Will, 169 N. C. earnestness, restrained within 561, 86 S. E. 587.

proper limits, for testamentary reThe law does not regard as im- membrance; it is the privilege of proper the presence of a brother the parents to make it, having ca. nor of a nephew of the testator at pacity to know what is done." See, the execution of the instrument, also, Appeal of Fitzpatrick, 87 although they are legatees under Conn. 579, 89 Atl. 92, 94. the will.-Pennypacker v. Penny. Influence caused by the affecpacker, (Pa.) 8 Atl. 634.

tion of a mother for her daughter 54 Lockwood v. Lockwood, 80 is not undue. — Gibony V. Foster, Conn. 513, 69 Atl. 8; Appeal of 230 Mo. 106, 130 S. W. 314. Fitzpatrick, 87 Conn. 579, 89 Atl. Influence gained by a son over 92, 94.

his mother by courtesy and kind 55 Miller v. Miller, 3 Serg. & R. treatment is not undue.-Converse (Pa.) 267, 269, 8 Am. Dec. 651; v. Mix, 63 Wash. 318, 115 Pac. 305. Estate of Williams, 13 Phila. (Pa.) 56 Small v. Small, 4 Greenl. (4 302, 303.

Me.) 220, 223, 16 Am. Dec. 253; In Dale's Appeal, 57 Conn. 127, In re Hall's Estate, 68 Misc. Rep. 17 Atl. 757, the court says: “It is 581, 125 N. Y. Supp. 253; Lide's the duty of a son to entitle him- Admrs. v. Lide, 2 Brev. (S. C.) 403. self to the confidence of his par- 57 Latham v. Udell, 38 Mich. 238;

she exerted her influence in an especial degree to secure advantages to herself to the injury of other natural objects of the testator's bounty.58 It has been held that a wife's influence, in order to be considered undue, must amount to coercion or fraud.69 The relationship, however, may be considered in connection with other evidence tending to show undue influence, and may be of considerable importance where the will contains unnatural provisions; but where the will is reasonable and in the absence of other evidence tending to show undue influence, the relationship does not establish such fact.80

8590. Nlicit Relationship Alone Raises No Presumption of

Undue Influence. The mere fact that illicit relations exist between a man and a woman raises no presumption of undue influence because of a testamentary disposition by one in favor Pierce v. Pierce, 38 Mich. 412; in which he should leave to her Hughes v. Murtha, 32 N. J. Eq. 288. the larger portion or all of his

Undue influence of a husband estate. She was his lawful wife, orer his wife is more readily pre- and it was his duty to protect her sumed than that a wife exercised by his will, and he evidently deher influence unduly over her hus- sired to do as he did in that band.-Marsh v. Tyrrell, 2 Hagg. respect.”—In re Enos' Estate, 79 Ecc, 84.

Wash. 590, 140 Pac. 677, 680. That a wife requests her hus- 58 Meeker v. Meeker, 75 Ill. 260, band to appoint her one of the Rankin v. Rankin, 61 Mo. 295; Milexecutors of his will is not evi. ler v. Miller, 3 Serg. & R. (Pa.) dence of fraud or undue influence; 267, 8 Am. Dec. 651; Zimmerman nor is the fact that the wife's sis- V. Zimmerman, 23 Pa. St. 375; ters, one of whom testator was Farr v. Thompson, 1 Speers (S. C.) visiting, procured the attendance 93; O'Neall v. Farr, 1 Rich. L. of the lawyer of one of them to (S. C.) 80. assist the testator's lawyer in 59 Boyse v. Rossborough, 6 H. L. drawing the disputed will.-Black Cas. 2. v. Foljambe, 39 N. J. Eq. 234.

60 In re Morcel's Estate, 162 Cal. "It was also a privilege of his 188, 121 Pac. 733, 735. wife to solicit him to make a will

of the other.61 It is not essential to a will or a deed that the motives which led to the act should be virtuous or that the object of the donor's bounty should be meritorious. To the argument that the influence of a mistress is illegal because it sprang from an unlawful relationship, it has been said that “however reprehensible such influences may be, if a testator voluntarily chooses to be actuated by them, it is a privilege he may enjoy under the law that secures to every one alike the right to dispose of his property without restraint upon his own judgment

61 In re Morcel's Estate, 162 Cal. influence, and, in the absence of 188, 121 Pac. 733, 735; In re Hess' any proof to the contrary, they Will, 48 Minn, 504, 31 Am. St. Rep. must find against the will." 665, 51 N. W. 614; Sunderland v. In Monroe v. Barclay, 17 Ohio Hood, 84 Mo. 293; Schuchhardt v.

St. 302, 93 Am. Dec. 620, the court Schuchhardt, 62 N. J. Eq. 710, 714, says: "Every will

is the 49 Atl. 485; In re Willford's Will, result of influences strong enough (N. J.) 51 Atl. 501; Platt v. Elias, to produce it. Since then, it is 186 N. Y. 374, 116 Am. St. Rep. the policy of the law to secure to 558, 9 Ann. Cas. 780, 11 L, R. A.

every one the right to dispose of (N. S.) 554, 79 N. E. 1; Monroe v. his property in accordance with Barclay, 17 Ohio St. 302, 93 Am. his individual will, that influence Dec. 620; Rudy v. Ulrich, 69 Pa.

alone is illegal which places the St. 177, 8 Am. Rep. 238; Wain- freedom of a testator's will under wright's Appeal, 89 Pa. St. 220; some kind of restraint. If this O'Neall v. Farr, 1 Rich. L. (S. C.) be so, it follows that it matters 80.

not what may be the origin or In Porschet v. Porschet, 82 Ky. character of any influence oper. 93, 98, 56 Am. Rep. 880, the court ating upon a testator, if it does says: “If (a will is) the offspring not place him 'under any of a sound and disposing mind straint.' It would seem to follow, and memory, the mere fact that also, that it would be equally im. the testator has given his estate material how an individual may by the will to one with whom he have acquired an influence over a has lived for years as his wife, in testator, unless such influence is preference to his brothers and sis- exerted in a manner that tends to ters, will not authorize the court restrain the free exercise of his to say to the jury that the law will in the disposition of his proppresumes the existence of undue erty."

re

and conscience."62 The proof of illicit relations, however, becomes important when taken in connection with other circumstances, and may call for close scrutiny of the circumstances,68 but the exercise of undue influence still remains a question of fact for the jury.84

8 591. The Same Subject: Contrary View.

By statute, in some states, gifts to a mistress or an illegitimate child are condemned. Thus in South Carolina if a testator have a wife and legitimate children, a devise

a or bequest to a mistress or bastard is void, so far as it

62 Monroe v. Barclay, 17 Ohio to the motive of the testator, or St. 302, 93 Am. Dec. 620. See, also, the unworthiness of the legatee, Platt v. Elias, 186 N. Y. 374, 116 until the legislature, upon consid. Am. St. Rep. 558, 9 Ann. Cas. 780, erations of public policy, shall 11 L. R. A. (N. S.) 554, 79 N. E. 1; think proper further to abridge in re Chidester's Estate, 227 Pa. the right of an owner to dispose St. 560, 76 Atl. 418.

of his property.-In re Hess' Will, Some decisions show an inclina. 48 Minn. 504, 31 Am. St. Rep. 665, tion to limit the inquiry into the 51 N. W. 614; O'Neall v. Farr, 1 private history of the testator. Rich, L. (S. C.) 80, 83. Thus in Iowa it has been held that Compare: Where the entire es. evidence of the testator's relations tate of the testator was given to to his second wife before the one with whom he had sustained death of the first

inad- meretricious relations, to the exmissible.-Webber v. Sullivan, 58 clusion of his only daughter, inIowa 260, 12 N. W. 319. See, also, fluence was presumed.-Snyder v. Pierce v. Pierce, 38 Mich. 412. Erwin, 229 Pa. St. 644, 140 Am. And in Minnesota the court re- St. Rep. 737, 79 Atl. 124. fused to allow it to be shown that 63 Schuchhardt v. Schuchhardt, a wife exercised great influence in 62 N. J. Eq. 710, 714, 49 Atl. 485; controlling the testator in ordi- Platt v. Elias, 186 N. Y. 374, 116 rary affairs.-In re Storer's Will, Am. St. Rep. 558, 9 Ann. Cas. 780, 28 Minn, 9, 8 N. W. 827.

11 L. R. A. (N. S.) 554, 79 N. E. 1. If the will be in conformity to 64 Sunderland v. Hood, 84 Mo. the testator's wishes, it is em. 293; Dean v. Negley, 41 Pa. St. phatically his will, and not the 2, 317, 80 Am, Dec. 620; Main v. will of another, and we are bound Ryder, 84 Pa. St. 217; Farr V. to give it effect, without reference Thompson, Cheves (S. C.) 37.

was

a

exceeds one-fourth part of his estate after payment of debts ;65 and under the Louisiana Code, there are restrictions upon gifts to natural children and concubines, 66 a will in favor of a mistress being in that state absolutely void as against public policy. 67

In some decisions a distinction has been drawn between the influence of a wife and that of a mistress, to the effect that although the influence of a wife is not undue unless it amounts to coercion of the husband's mind, yet it would do violence to the morality of the law, and therefore, to the law itself, if we should apply this rule to unlawful as well as to lawful relations; for we should thereby make them both equal in this regard at least, which is contrary to their very nature."'68 Ordinary infuence may be inferred in both cases, where the nature of the will seems to imply it; but in the former it is right because the relation is lawful; and in the latter it condemned because the relation is unlawful.69

may be

65 S. C. Gen. Stats., (1882) 8$ 1785, 1866; Stimson's Am. Stat. Law, $ 2615.

66 La. Rev. Civ. Code, (1875) $ $ 1481, 1483-1488.

67 Gibson v. Dooley, 32 La. Ann. 959.

68 Kessinger V. Kessinger, 37 Ind. 341, 343.

“We are of opinion that there is a difference in the two cases, and that an influence when exercised by a wife might be lawful and legitimate, but which, if exercised by a woman occupying merely an adulterous relation to the

or, might be undue and illegitimate. This must be so from the very nature of civilized human

society, and the domestic relations of life.”—Kessinger v. Kessinger, 37 Ind. 341, 343.

69 Although the case of Dean v. Negley, 41 Pa. St. 312, 80 Am. Dec. 620, is often cited in support of the position that no presumption of law of undue influence is raised from the mere existence of illicit cohabitation, yet the court in that case, 41 Pa. St., page 317, used the following language: "If the law always suspects and inexorably condemns undue influence, and presumes it from the very nature of the transaction in the legitimate relations of attorney, guardian, and trustee, where such persons seem to go beyond their

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