relations to the testator: legal,** religious,95 and medical advisers, the scrivener of the will," guardians,98 trus 96 showing that the testator's mind was not unduly influenced.-In re Cooper's Will, 75 N. J. Eq. 177, 71 Atl. 676; In re Gordon's Estate, (N. J.) 89 Atl. 33, 35. 94 It has been held that an attorney who has been the testator's legal adviser, and who draws a will containing a legacy to himself, must show affirmatively the absence of fraud and undue influence.-Post v. Mason, 26 Hun (N. Y.) 187. But in a higher court in the same case it was said that there is no presumption of fraud and undue influence from a legacy to one who had been the testator's legal adviser for a long time, and who was the scrivener of the will. -Post v. Mason, 91 N. Y. 539, 43 Am. Rep. 689. 95 There was not sufficient ground for presuming undue influence, from the fact that a testatrix devised her real estate to a priest in trust for a Romish church of which she was a member, the priest attending to drawing and executing the will for her through a lawyer, at her request, the will being in accordance with her previously declared intentions, although she had held no conversation with the priest upon the subject before her sickness.-Kerrigan v. Leonard, (N. J.) 8 Atl. 503. See, also, Marx v. McGlynn, 4 Redf. (N. Y.) 455. Where a convert to spiritualism whose life was dominated thereby, 96 A large bequest to an attending physician has been regarded with suspicion.-Major v. Knight, 4 Notes of Cas. 661; Cockcraft v. Rawles, 4 Notes of Cas. 237; Jones v. Godrich, 5 Moore P. C. C. 16. See, also, Barry v. Butlin, 2 Moore P. C. C. 480. 97 See, ante, § 592. In a case in Maryland it was ruled that it was proper to refuse to instruct the jury that large benefits to the draftsman are always a suspicious circumstance of more or less weight.-Stirling v. Stirling, 64 Md. 138, 21 Atl. 273. A will of a testator being drawn by a confidential friend whose wife was a beneficiary, does not necessarily raise a presumption of undue influence.-Montague v. Allan's Exr., 78 Va. 592, 49 Am. Rep. 384. Nor does the fact that it was drawn by a favored legatee. -Rusling v. Rusling, 36 N. J. Eq. 603. But see, contra: Estate of Byrne, Myrick's Prob. (Cal.) 1. 98 Evidence that the proponent of a will had before its date and after an inquest been 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.1 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.2 § 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." 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 misrepre conservator of the testator, and continued to act in that capacity up to the date of the testator's death, is admissible on the question of "fraud, compulsion, or other improper conduct."-Critz's Heirs v. Pierce, 106 Ill. 167. A will of a female of sixteen, easily influenced and in poor health, made in favor of her guardian, who took an active part in its execution, was subjected to close scrutiny.-Seiter v. Straub, 1 Demarest (N. Y.) 264. 99 Horah v. Knox, 87 N. C. 483. 1 Bristed V. Weeks, 5 Redf. (N. Y.) 529. As to a will in favor of a partner, see Brooks' Estate, 54 Cal. 471. Where a confidential relation ex ists between the principal devisee and the testator, and they live together in the same house, it is not easy to establish an allegation of undue influence by direct or positive proof, nor is it necessary to do so. But while circumstantial evidence (such as disproportionate gifts to one, to the exclusion of others having a claim upon the testator's bounty) is not to be disregarded, rash conclusions are not to be drawn therefrom, and such evidence must be of a satisfactory and convincing character.-Herster v. Herster, 116 Pa. St. 612, 11 Atl. 410. 2 Bristed ▼. Weeks, 5 Redf. (N. Y.) 529. 3 Sir John Nicholl in Williams v. Goude, 1 Hagg. Ecc. 577, 596. 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." § 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. & Fin. 578; Lovett v. Lovett, 1 Fost. & Fin. 581; Parfitt v. Lawless, L. R. 2 P. & D. 462, 471. 5 In re Snowball's Estate, 157 Cal. 301, 107 Pac. 598, 600; Powell v. Plant, (Miss.) 23 So. 399; Robinson v. Robinson, 203 Pa. St. 400, 53 Atl. 253. 6 Stewart v. Elliott, 2 Mackey (13 D. C.) 307. Misc. Rep. 476, 150 N. Y. Supp. 118, 123; Herster v. Herster, 122 Pa. St. 239, 9 Am. St. Rep. 95, 16 Atl. 342. The fact that the jury does find against proponents upon the issue whether the will was procured by fraud will not preclude it from considering evidence of fraud as being upon the issue of undue influence. In re Snowball's Estate, 157 Cal. 301, 107 Pac. 598, 600. 7 In re Snowball's Estate, 157 Cal. 301, 107 Pac. 598, 600; In re Ricks' Estate, 160 Cal. 467, 117 Pac. 539, 545; Hopper v. Sellers, 91 Kan. 876, 139 Pac. 365, 368; In re Hess' Will, 48 Minn. 504, lently exerted, but they are not "Fraud is a distinct head of objection from importunity and undue influence. Importunity and undue influence may be fraudu 31 Am. St. Rep. 665, 51 N. W. 614; Powell v. Plant, (Miss.) 23 So. 399; In re Hermann's Will, 87 inseparably connected with fraud." -Davis v. Calvert, 5 Gill & J. (Md.) 269, 25 Am. Dec. 282. otherwise receive the estate of the testator are deprived of its benefits.8 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 § 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. 467, 117 Pac. 539, 545. 9 Davis v. Calvert, 5 Gill & J. (Md.) 269, 25 Am. Dec. 282; Powell v. Plant, (Miss.) 23 So. 399; Robinson v. Robinson, 203 Pa. St. 400, 53 Atl. 253. 10 See In re Hess' Will, 48 Minn. 504, 31 Am. St. Rep. 665, 51 N. W. 614; Herster v. Herster, 122 Pa. St. 239, 9 Am. St. Rep. 95, 16 Atl. 342. 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.13 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 influence; but undue influence may be exercised otherwise than through fraud. If, therefore, the mind of the testatrix was so perverted by deceit or other sinister means that she lacked power to give expression to her true desires, provisions of the will procured by such influences were void, notwithstanding the fact that she possessed capacity to make the will, and was under no coercion. Hopper v. Sellers, 91 Kan. 876, 139 Pac. 365, 368. 12 Undue influence is not the same thing as fraud. One may exist without the other. Undue influence may, however, be exerted by means of fraud.-In re Snowball's Estate, 157 Cal. 301, 107 Pac. 598, 600; Davis v. Calvert, 5 Gill & J. (Md.) 269, 25 Am. Dec. 282; Powell v. Plant, (Miss.) 23 So. 399; Eckert v. Flowry, 43 Pa. St. 46; Robinson v. Robinson, 203 Pa. St. 400, 53 Atl. 253. 13 In re Ricks' Estate, 160 Cal. 467, 117 Pac. 539, 544. |