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relations to the testator: legal,94 religious,95 and medical advisers, the scrivener of the will,97 guardians,98 trusshowing that the testator's mind and who was influenced by the was not unduly influenced.-In re person through whom he had em. Cooper's Will, 75 N. J. Eq. 177, braced that belief to become alien71 Atl. 676; In re Gordon's Es- ated from wife and child, and to tate, (N. J.) 89 Atl. 33, 35.

make a will in favor of his ad. 94 It has been held that an attor. viser, the facts were considered ney who has been the testator's sufficient to justify setting the will legal adviser, and who draws a aside. Thompson v. Hawks, 14 will containing a legacy to him- Fed. 902, 11 Biss. 440. self, must show affirmatively the 96 A large bequest to an attendabsence of fraud and undue in- ing physician has been regarded fluence.—Post v. Mason, 26 Hun with suspicion.-Major v. Knight, (N. Y.) 187. But in a higher court 4 Notes of Cas. 661; Cockcraft v. in the same case it was said that Rawles, 4 Notes of Cas. 237; there is no presumption of fraud Jones v. Godrich, 5 Moore P. C. C. and undue influence from a legacy 16. See, also, Barry v. Butlin, 2 to one who had been the testator's Moore P. C. C. 480. legal adviser for a long time, and 97 See, ante, $ 592. who was the scrivener of the will. In a case in Maryland it was -Post v. Mason, 91 N. Y. 539, 43 ruled that it was proper to refuse Am. Rep. 689.

to instruct the jury that large 95 There was not sufficient benefits to the draftsman are alground for presuming undue influ- ways a suspicious circumstance of ence, from the fact that a testatrix more or less weight.-Stirling v. devised her real estate to a priest Stirling, 64 Md. 138, 21 Atl. 273. in trust for a Romish church of A will of a testator being drawn which she was a member, the by & confidential friend whose priest attending to drawing and wife was a beneficiary, does not executing the will for her through necessarily raise a presumption a lawyer, at her request, the will of undue influence.-Montague v. being in accordance with her pre- Allan's Exr., 78 Va. 592, 49 Am. viously declared intentions, al- Rep. 384. Nor does the fact that though she had held no conversa- it was drawn by a favored legatee. tion with the priest upon the -Rusling v. Rusling, 36 N. J. Eq. subject before her sickness.-Ker- 603. rigan v. Leonard, (N. J.) 8 Atl. But see, contra: Estate of Byrne, 503. See, also, Marx v. McGlynn, Myrick's Prob. (Cal.) 1. 4 Redf. (N. Y.) 455.

98 Evidence that the proponent Where a convert to spiritualism of a will had before its date and whose life was dominated thereby, after an inquest beer appointed

tees, or other persons having the ear of the testator. But in these cases the inference is one of fact to be drawn by the jury, and not a presumption of law;99 and its strength will depend upon the circumstances of each case." A legacy to the wife of one standing in such a relation, but who was not proven to have drafted the will, nor to have given advice as to its provisions, nor to have known of the testator's intention to make it, was not vitiated by the bare existence of the relation."

8 598. Fraud and Undue Influence Distinguished.

Undue influence and fraud often go hand in hand. It was early said “that undue influence must be of the nature of fraud or duress."3 The first may involve elements of the two latter, but the general rule now is that the allegation or plea of undue influence is distinct from that of fraud or duress. Fraud, which includes misrepreconservator of the testator, and ists between the principal devisee continued to act in that capacity and the testator, and they live toup to the date of the testator's gether in the same house, it is not death, is admissible on the ques. easy to establish an allegation of tion of “fraud, compulsion, or undue influence by direct or posiother improper conduct."-Critz's tive proof, nor is it necessary to Heirs v. Pierce, 106 Ill. 167.

do so. But while circumstantial A will of a female of sixteen, evidence (such as disproportioneasily influenced and in poor ate gifts to one, to the exclusion health, made in favor of her of others having a claim upon the guardian, who took an active part testator's bounty) is not to be dis. in its execution, was subjected to regarded, rash conclusions are not close scrutiny.-Seiter v. Straub, to be drawn therefrom, and such 1 Demarest (N. Y.) 264.

evidence must be of a satisfactory 99 Horah v. Knox, 87 N. C. 483. and convincing character.-Hers.

1 Bristed Weeks, 5 Redt. ter V. Herster, 116 Pa, St. 612, (N. Y.) 529.

11 Atl. 410. As to a will in favor of a part- 2 Bristed V. Weeks, 5 Redt. ner, see Brooks' Estate, 54 Cal. (N. Y.) 529. 471.

3 Sir John Nicholl in Williams v. Where a confidential relation ex. Goude, 1 Hagg. Ecc, 577, 596.

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sentation, is the subject of a separate plea under modern English probate practice. An allegation or plea of undue influence raises only the question of coercion."

Fraud and undue influence are often confounded. While undue influence may be associated with and exercised by means of fraud, yet importunity sufficient to invalidate a will may be exercised without fraudulent motives. In probate law undue influence has become sufficiently differentiated from fraud to be regarded as of a distinct genus of wrongs.?

8 599. The Same Subject: Either May Exist Without the

Other. In a will contest on the ground of fraud or undue influence, the law regards only the acts perpetrated against the testator, although incidentally those who would

4 Sefton v. Hopwood, 1 Fost. & Misc. Rep. 476, 150 N. Y. Supp. Fin. 578; Lovett v. Lovett, 1 Fost. 118, 123; Herster v. Herster, 122 & Fin. 581; Parfitt v. Lawless, Pa. St. 239, 9 Am. St. Rep. 95, L. R. 2 P. & D. 462, 471.

16 Atl. 342. 5 In re Snowball's Estate, 157 The fact that the jury does find Cal. 301, 107 Pac. 598, 600; Powell against proponents upon the issue v. Plant, (Miss.) 23 So. 399; Rob- whether the will was procured by inson v. Robinson, 203 Pa. St. 400, fraud will not preclude it from

considering evidence of fraud as 6 Stewart v. Elliott, 2 Mackey being upon the issue of undue in

fluence.-In re Snowball's Estate, 7 In re Snowball's Estate, 157 157 Cal. 301, 107 Pac. 598, 600. Cal. 301, 107 Pac. 598, 600; In re "Fraud is a distinct head of Ricks' Estate, 160 Cal. 467, 117 objection from importunity and Pac. 539, 545; Hopper v. Sellers,

undue influence. Importunity and 91 Kan. 876, 139 Pac. 365, 368;

undue influence may be frauduIn re Hess' WIN, 48 Minn. 504, lently exerted, but they are not 31 Am. St. Rep. 665, 51 N. W. 614;

inseparably connected with fraud." Powell v. Plant, (Miss.) 23 So.

-Davis V. Calvert, 5 Gill & J. 399; In re Hermann's Will, 87

(Md.) 269, 25 Am. Dec. 282.

53 Atl. 253.

(13 D. C.) 307.

otherwise receive the estate of the testator are deprived of its benefits.

Either fraud or undue influence may exist without the other. Fraud, generally, is exercised by means of false statements, false pretenses, or some trick, device, or other mode of deception. Undue influence is exercised by persuasion, importunity and the like whereby the mind of the testator, through weakness, ignorance, dependence, or implicit reliance on the good faith of another, is subjugated to the will of the one operating on it, thus destroying its free agency. Fraud relates to the deception practiced; undue influence has reference to coercion of the mind of the testator. Undue influence need not be associated with fraud; a testator may make his will in favor of some one because of importunity or imposition unaccompanied by any false representation or fraudulent practice. The testator is not deceived, but is unduly influenced. In a sense, however, there may be said to be an element of fraud, but only in so far as the heir is concerned, he being deprived of what he otherwise would have received.10

8 600. The Same Subject.

Fraud may be practiced without any attempt at unduly influencing the will of the testator. Thus a stranger through malice may make false charges against an heir and thus poison the mind of the testator against him. The stranger may neither expect nor receive any benefit

8 In re Ricks' Estate, 160 Cal. 10 See In re Hess' Will, 48 Minn, 467, 117 Pac. 539, 545.

504, 31 Am. St. Rep. 665, 51 N. W. 9 Davis v. Calvert, 5 Gill & J. 614; Herster v. Herster, 122 Pa. (Md.) 269, 25 Am. Dec. 282; St. 239, 9 Am. St. Rep. 95, 16 Atl. Powell V. Plant, (Miss.) 23 So. 342. 399; Robinson v. Robinson, 203 Pa. St. 400, 53 Atl. 253.

under the will. Such is a case of simple fraud, although such fraud may so influence the testator as to pervert his mind, even though there was no coercion.11 But if such false charges were made by one as a basis for influencing the mind of the testator and were followed by a successful effort whereby the heir was disinherited because of the belief of the testator of the truth of such false statements and because of his being influenced by them, such fraudulent representations may be considered as an element in proof of undue influence. In such a case, however, they must have been made not only for the purpose of influencing the testator, but made the basis of importunities resulting in the coercion of the testator's mind. Thus undue influence may be exerted by means of fraud. 12 The distinction is important, as a plea or finding of undue influence will not be supported by evidence purely of fraud, nor will a plea or finding of fraud be supported by evidence showing only the exercise of undue influence.18 If, however, the fraud or fraudulent representations were made the basis of a successful solicitation whereby the mind of the testator was coerced into making

11 Fraud is a species of undue 12 Undue influence is not the influence; but undue influence same thing as fraud. One may may be exercised otherwise than exist without the other. Undue through fraud. If, therefore, the influence may, however, be exmind of the testatrix was so per- erted by means of fraud.—In re verted by deceit or other sinister Snowball's Estate, 157 Cal. 301, means that she lacked power to 107 Pac. 598, 600; Davis V. Cal. give expression to her true de- vert, 5 Gill & J. (Md.) 269, 25 Am. sires, provisions of the will pro- Dec. 282; Powell v. Plant, (Miss.) cured by such influences

23 So. 399; Eckert v. Flowry, 43 Foid, notwithstanding the fact that Pa. St. 46; Robinson v. Robinson, she possessed capacity to make 203 Pa. St. 400, 53 Atl. 253. the will, and was under no

13 In re Ricks' Estate, 160 Cal. ercion.-Hopper v. Sellers, 91 Kan. 467, 117 Pac. 539, 544. 876, 139 Pac. 365, 368.



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