other a child. In the latter instance, the relation of confidence and participation in the estate is natural.5

§ 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

The law does not regard as improper the presence of a brother nor of a nephew of the testator at the execution of the instrument, although they are legatees under the will.-Pennypacker v. Pennypacker, (Pa.) 8 Atl. 634.

54 Lockwood v. Lockwood, 80 Conn. 513, 69 Atl. 8; Appeal of Fitzpatrick, 87 Conn. 579, 89 Atl. 92, 94.

55 Miller v. Miller, 3 Serg. & R. (Pa.) 267, 269, 8 Am. Dec. 651; Estate of Williams, 13 Phila. (Pa.) 302, 303.

In Dale's Appeal, 57 Conn. 127, 17 Atl. 757, the court says: "It is the duty of a son to entitle himself to the confidence of his par

Influence gained by a son over his mother by courtesy and kind treatment is not undue.-Converse v. Mix, 63 Wash. 318, 115 Pac. 305.

56 Small v. Small, 4 Greenl. (4 Me.) 220, 223, 16 Am. Dec. 253; In re Hall's Estate, 68 Misc. Rep. 581, 125 N. Y. Supp. 253; Lide's Admrs. v. Lide, 2 Brev. (S. C.) 403. 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.59 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.60

§ 590. Illicit 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; Hughes v. Murtha, 32 N. J. Eq. 288. Undue influence of a husband over his wife is more readily presumed than that a wife exercised her influence unduly over her husband.-Marsh v. Tyrrell, 2 Hagg. Ecc. 84.

That a wife requests her husband to appoint her one of the executors of his will is not evidence of fraud or undue influence; nor is the fact that the wife's sisters, one of whom testator was visiting, procured the attendance of the lawyer of one of them to assist the testator's lawyer in drawing the disputed will.-Black v. Foljambe, 39 N. J. Eq. 234.

"It was also a privilege of his wife to solicit him to make a will

in which he should leave to her the larger portion or all of his estate. She was his lawful wife, and it was his duty to protect her by his will, and he evidently desired to do as he did in that respect." In re Enos' Estate, 79 Wash. 590, 140 Pac. 677, 680.

58 Meeker v. Meeker, 75 Ill. 260, Rankin v. Rankin, 61 Mo. 295; Miller v. Miller, 3 Serg. & R. (Pa.) 267, 8 Am. Dec. 651; Zimmerman v. Zimmerman, 23 Pa. St. 375; Farr v. Thompson, 1 Speers (S. C.) 93; O'Neall v. Farr, 1 Rich. L. (S. C.) 80.

59 Boyse v. Rossborough, 6 H. L. Cas. 2.

60 In re Morcel's Estate, 162 Cal. 188, 121 Pac. 733, 735.

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. 188, 121 Pac. 733, 735; In re Hess' Will, 48 Minn. 504, 31 Am. St. Rep. 665, 51 N. W. 614; Sunderland v. Hood, 84 Mo. 293; Schuchhardt v. Schuchhardt, 62 N. J. Eq. 710, 714, 49 Atl. 485; In re Willford's Will, (N. J.) 51 Atl. 501; Platt v. Elias, 186 N. Y. 374, 116 Am. St. Rep. 558, 9 Ann. Cas. 780, 11 L. R. A. (N. S.) 554, 79 N. E. 1; Monroe v. Barclay, 17 Ohio St. 302, 93 Am. Dec. 620; Rudy v. Ulrich, 69 Pa. St. 177, 8 Am. Rep. 238; Wainwright's Appeal, 89 Pa. St. 220; O'Neall v. Farr, 1 Rich. L. (S. C.) 80.

In Porschet v. Porschet, 82 Ky. 93, 98, 56 Am. Rep. 880, the court says: "If (a will is) the offspring of a sound and disposing mind and memory, the mere fact that the testator has given his estate by the will to one with whom he has lived for years as his wife, in preference to his brothers and sisters, will not authorize the court to say to the jury that the law presumes the existence of undue

influence, and, in the absence of any proof to the contrary, they must find against the will."

In Monroe v. Barclay, 17 Ohio St. 302, 93 Am. Dec. 620, the court says: "Every will .. is the result of influences strong enough to produce it. Since, then, it is the policy of the law to secure to every one the right to dispose of his property in accordance with his individual will, that influence alone is illegal which places the freedom of a testator's will under some kind of restraint. If this be so, it follows that it matters not what may be the origin or character of any influence operating upon a testator, if it does not place him 'under any restraint.' It would seem to follow, also, that it would be equally immaterial how an individual may have acquired an influence over a testator, unless such influence is exerted in a manner that tends to restrain the free exercise of his will in the disposition of his property."

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."4

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

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," 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." Ordinary influence 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 may be condemned because the relation is unlawful.69

65 S. C. Gen. Stats., (1882) S$ 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 testator, 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