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$ 595. The Same Subject: Some Decisions Hold That the Law

Presumes Undue Influence. The decisions are not harmonious as to the effect of 80 confidential relationship between the testator and a beneficiary. In some cases it is said that such relationship raises the presumption of undue influence, and that it casts the burden on a legatee or devisee who occupied such a position when the will was made, to show that the testator acted of his own free agency. Thus, where a testator, enfeebled by disease, executed a codicil prepared by his confidential adviser, by which the legacies of a will made in full vigor of mind were cut down, and the difference with the greater part of the residuary estate was given to his adviser, it was ruled that the latter must show affirmatively that the testator knew clearly what he was doing, and that his mind was free from undue influence.81 Where one stands in the relationship of attorney to the testator at the time the will is made, and is also the principal beneficiary under the will, the fiduciary relationship being of the highest trust, it has been said the law indulges in the presumption that undue influence was used to procure the will, and that the burden is on such beneficiary to show the contrary.82 And

80 Burden of proof is on a bene making of the will is not suffi. ficiary occupying confidential re- cient; there must be also evidence lationship to rebut undue influ- that the testator was of ordinary

– Ryan V. Rutledge, (Mo.) intelligence, that he acted volun187 S. W. 877.

tarily, without persuasion, and 81 Delafield v. Parish, 25 N. Y. that he made fair provision for 9, 35. See, also, Yardley v. Cuth. those who would naturally be his bertson, 108 Pa. St. 395, 56 Am. heirs.-Marx v. McGlynn, 88 N. Y. Rep. 218, 1 Atl. 765.

357. To sustain a will in favor of a 82 Gidney V. Chappell, 26 Okla. religious adviser to the exclusion 737, 110 Pac. 1099, 1105, See, also, of the natural objects of the testa. Gay v. Gillilan, 92 Mo. 250, 1 Am. tor's bounty, proof of the bare St. Rep. 712, 5 S. W. 7; Campbell


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it has been held that the presumption of undue influence arising from a bequest from a ward to a guardian extends to the wife of the guardian.83 Thus it has been decided that a large bequest to one in a confidential relation to the testator would require him to show that the testator acted voluntarily.8+ Still the language of the will itself,85 or circumstantial evidence, may overcome the presumption.86 It is sufficient if the court or jury be satv. Carlisle, 162 Mo. 634, 63 S. W. Where the relations between 701; Mowry V. Norman, 204 Mo. the testator and the proponent 173, 103 S. W. 15.

were confidential, and the propo83 Bridwell v. Swank, 84 Mo. 455. nent drew the will, taking the en

84 Paske v. Olatt, 2 Phillim. 323; tire estate or a large bequest, and Barry v. Butlin, 1 Curt. 637; Dur- would have taken nothing as heir, ling v. Loveland, 2 Curt. 225; while near, needy, and deserving Walker V. Smith, 29 Beav. 394; relatives take nothing, then the Greville v. Tylee, 7 Moore P. C. C. law not only regards the transac320; Ashwell V. Lomi, L. R. 2 tion with suspicion, but the burP. & D. 477; Breed v. Pratt, 18 den should be cast upon the proPick. (Mass.) 115; Meek v. Perry, ponent to show that he did not, 36 Miss. 190; Harvey v. Sullens, nor did any one in his behalf, 46 Mo. 147, 2 Am. Rep. 491; Wil- unduly influence the testator, and son V. Moran, 3 Bradf. (N. Y.) that the instrument propounded is 172; Crispell v. Dubois, 4 Barb. the testator's will, and not the (N. Y.) 393; Newhouse v. Godwin, will of another person. Snod17 Barb. (N. Y.) 236; Delafield v. grass V. Smith, 42 Colo. 60, 15 Parish, 25 N. Y. 9, 35; Boyd v. Ann. Cas. 548, 94 Pac. 312; In re Boyd, 66 Pa. St. 283; Downey v. Barney's Will, 70 Vt. 352, 40 Atl. Murphy, 18 N. C. 82, 90; Riddell 1027. v. Johnson's Exr., 26 Gratt. (Va.) 85 Coffin v. Coffin, 23 N. Y. 9, 152.

80 Am, Dec. 235. Where it was shown that the 86 Ingram v. Wyatt, 1 Hagg. Ecc. principal beneficiary had acquired 384, 394; Paske v. Olatt, 2 Phillim. dominion over the testator by 323, 325. See, also, Billinghurst v. threats of violence and other im. Vickers, 1 Phillim. 187; Barton proper means, the burden of proof V. Robins, 3 Phillim. 455, n.; was upon him to prove that he did Hitchings Wood, 2 Moore not exercise undue influence over P. C. C. 355; Beall v. Mann, 5 Ga. the testator in the making of the 456; Harvey v. Sullens, 46 Mo. 147, will.-Gay v. Gillilan, 92 Mo. 250, 2 Am. Rep. 491; Tyler v. Gardiner, 1 Am. St. Rep. 712, 5 S. W. 7. 35 N. Y. 559; Carr v. McCamm,

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isfied that the testator was not imposed upon, that he understood the nature of his act, and the dispositions of the will.87

8 596. The Same Subject: A Suspicious Circumstance to Be


The better rule seems to be that a confidential relationship alone does not raise a presumption of undue influence which the beneficiary must overcome before the will can be admitted; but it is a suspicious circumstance to be considered in connection with all the facts of the case. Thus, no presumption arises that the testator was unduly influenced from the mere fact that the will makes provision for one who occupied a fiduciary relationship to him; there must be a further showing that the person so benefited influenced the testator to so make his will.88 To maintain the contrary is to cast the burden in the first

18 N. C. 276; Watterson v. Watter. son, 1 Head (38 Tenn.) 1.

The denial of the beneficiary, standing alone, if otherwise credible, and not challenged by other facts, is sufficient to overcome the legal presumption of undue influence resulting from confidential relationship. In re Eatley's Will, 82 N. J. Eq. 591, 89 Atl. 776, 780.

87 Barry v. Butlin, 1 Curt. 637; Durnell v, Corfield, 1 Rob. Ecc. 51; Duffield v. Robeson, 2 Har. (Del.) 375, 384.

88 Boyse v. Rossborough, 6 H. L. Cas. 49; Parfitt v. Lawless, L. R. 2 P. & D. 462; Spiers v. Eng. lish, (1907) P. 24, 122; In re Higgins' Estate, 156 Cal. 257, 104 Pac. 6; In re Packer's Estate, 164 Cal. 525, 129 Pac. 778; In re Kindberg's

Will, 141 App. Div. 188, 126 N. Y. Supp. 33; In re McCarty's Will, 141 App. Div. 816, 126 N. Y. Supp. 699.

The fact that the confidential relation of attorney and client existed between the testatrix and a beneficiary does not in itself prove that the will was procured by undue influence arising from that relation, nor cast upon him the burden of proving the absence of such influence at the time of its execution.--In re Purcell's Estate, 164 Cal. 300, 128 Pac. 932, 934.

Confidential relations existing between the testator and bene. ficiary do not alone furnish any presumption of undue influence.Lee v. Lee, 71 N. C. 139.

Nor that the testator, an old

instance on those preferred by a will, whenever a will is offered for probate, to disprove undue influence. But where a confidential relationship existed between the testator and a beneficiary at the time the will was made, slight circumstances in addition to such a showing are sufficient to throw upon the beneficiary the burden of proving that the testator's mind was not unduly influenced.89 The bare facts that the draughtsman was made executor, and that his relatives received much of the property, do not of themselves raise a presumption of undue influence." But a large gift to the scrivener of a will often excites the suspicion of fraud or of undue influence,91 and this suspicion is strong in proportion to the amount of the bequest.92

and helpless man, made his will in favor of a son who had for years cared for him and attended to all his business affairs, his other children having forsaken him. — Mackall v. Mackall, 135 U. S. 167, 34 L. Ed. 84, 10 Sup. Ct. 705; Elliott's Will, 2 J. J. Marsh (25 Ky.) 340.

A mere confidential relation existing between the testator and a beneficiary under a will, or the opportunity of such beneficiary to exercise undue influence over the testator, is not enough to avoid a will. The fraud or undue influence that will suffice to set aside a will, "must be such as to overcome the free volition or scious judgment of the testator, and to substitute the wicked pur. poses of another instead, and must be the efficient cause, without which the obnoxious disposition would not have been made.”—In re Turner's Will, 51 Ore. 1, 93 Pac. 461, 464.

89 In re Cooper's Will, 75 N. J. Eq. 177, 71 Atl. 676. See, also, In re Turner's Will, 51 Ore. 1, 93 Pac, 461, 464.

Where the deceased was old and feeble and a confidential relation existed, we think the rule announced in Ross v. Ross, 140 Iowa 51, 61, 117 N. W. 1105, to the effect, briefly stated, that if a person who was aged and of impaired mind and memory, though he may not have been legally incompetent to make a will, yet the will of such a person ought not to be sustained unless it appears that such disposition of his property has been fairly made, and to have emanated from a free will, with. out the interposition of others, and that if the jury should find under all the circumstances that the disposition of the property did not emanate from a free will and was not in accord with testator's previous intentions, etc., the jury would be justified in finding that the will was not the voluntary act of the testator, but that it was obtained by undue influence. Squires v. Cook, (Iowa) 157 N. W. 253, 256.

The rule to be deduced from the decisions on the subject is this: That where a person, enfeebled

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$ 597. The Same Subject: Slight Evidence Only May Be

Required. There are certain cases in which undue influence may be established by a slight degree of evidence, and others in which certain facts being proven it will rest with the beneficiary under the will to show affirmatively the absence of undue influence.98 Thus, taken in connection with other facts, it is often a cause of suspicion that gifts are made to persons standing in confidential or fiduciary by old age or illness, makes a 90 Carter v. Dixon, 69 Ga. 82. will in favor of another person, 91 Baker

Batt, 2 Moore upon whom he is dependent, and P. C. C. 317; Durling v. Loveland, that will is at variance wit 2 Curt. 225; Paske V. Olatt, 2 a former will made, or intentions Phillim. 323; Duffield v. Robeson, formed when his faculties were in 2 Har. (Del.) 375, 384; Hughes full vigor, and is opposed to the v. Meredith, 24 Ga. 325, 71 Am. dictates of natural justice, the pre- Dec. 127; Adair V. Adair, 30 Ga. sumption is that such a will is 102; Cramer v. Crumbaugh, 3 Md. the result of undue influence, un- 491; In re Everett's Will, 153 N. C. less that presumption is satisfac- 83, 68 S. E. 924; Tomkins v. Tomtorily rebutted by other evidence kins, 1 Bail. L. (S. C.) 92, 19 Am. in the case.-In re Hess' Will, 48 Dec. 656; Patton V. Allison, 7 Minn. 504, 31 Am. St. Rep. 665, Humph. (26 Tenn.) 320. 51 N. W. 614; Demmert v. Schnell, 92 Barry v. Butlin, 1 Curt. 637; 4 Redf. (N. Y.) 409.

Durnell v. Corfield, 1 Rob. Ecc. Slight circumstances in addition 51, 63; Lee v. Dill, 11 Abb. Pr.

sufficiently shown by the (N. Y.) 214. action of the beneficiary in at- 93 Where, in a testamentary tending to the preparation of the transaction, the facts show the exwill and codicil, in drafting the istence of a confidential relation residuary clause of the will in his between testator and a beneficiary, own favor, and in selecting the slight circumstances in addition witnesses.-In re Gordon's Estate, to such relations will throw upon (N. J.) 89 Atl. 33, 35.

the beneficiary the burden of


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