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a will in a certain manner which he otherwise would not have done, then such fraud becomes an element of undue influence and may be considered in support of such plea or finding on such issue. 14

17

8 601. Duress and Undue Influence Distinguished.

Duress is an actual or threatened violence of one's person, contrary to law, to compel him to do some act. It exists whenever there has been violence, actual or threatened, so that it is not the free act of the person on whom it is practiced.15 Executing an instrument reluctantly and upon repeated urgings does not constitute duress.16 The compulsion must deprive the person of his free agency."

In many decisions statements will be noted to the effect that undue influence may be exercised by force and accomplished through fear. Undue influence, strictly speaking, may be established without showing any phys

14 In re Ricks' Estate, 160 Cal. Under the early English law, 467, 117 Pac, 539, 544.

prisoners, captives, and the like, Confidence or influence may be those lacking liberty or freedom used to obtain an unfair advan. of will, were not prevented abso tage over another in a variety of lutely from making wills, but each ways, and less by

case was decided according to the of fraudulent misrepresentations particular circumstances surround. than by means of duress or other ing it, and it was for the judge to pressure. — In re Snowball's Es

say, considering the duress, tate, 157 Cal. 301, 107 Pac. 598, whether the person had “liberum 601.

animum testandi." — 2 Bl. Com. 15 King v. Williams, 65 Iowa *497. 167, 21 N. W. 502.

16 Hamilton v. Smith, 57 Iowa Those wanting liberty, or lack- 15, 42 Am. Rep. 39, 10 N. W. 276. ing freedom of will, such as pris. 17 Commonwealth v. Drew, 3 oners, captives, and the like, were Cush. (57 Mass.) 279; State V. incapable of devising under the Bryant, 14 Mo. 340; Common. civil law.-Godolph, pt. 1, ch. 9; wealth v. Gillespie, 7 Serg. & R. Swinb. Wills, pt. 2, § 8.

(Pa.) 469, 10 Am. Dec. 475.

no

means

ical coercion or restraint; it may be subtle without outward demonstration. It imports mental coercion as distinct from “duress," which latter term refers to menace or actual or threatened physical violence or restraint. Undue influence is a moral wrong and is cognizable in equity; duress is a physical wrong and is primarily a matter of legal cognizance. Where duress is established, consent of the testator is impossible.18

8 602. Forgery and Mistake.

A will, in its very nature, is the legally expressed intent of the maker. It is needless to say that a forged instrument not only fails to express the intentions of the purported testator, but lacks every element of due execution. A will made by mistake, or containing dispositions not intended, may be formally executed, yet it fails to correctly state the intentions of the maker. The mere fact of execution does not make it a valid will, it must be made with animus testandi.19 But an instrument, executed with due formality and reasonable on its face, should not be lightly considered or rejected because of parol evidence of mistake.20 Nor will a mistake by the

18 In Hermann's Will, 87 “If such declarations could be Misc. Rep. 476, 150 N. Y. Supp. admitted to prove that the will 118, 125; Anderson v. Anderson, was procured by fraud or duress 43 Utah 26, 134 Pac. 553, 557. or mistake, no man's will would

19 See $ 46. Watson v. Clark, be safe. The temptation to disap(Iowa) 122 N. W. 913.

pointed seekers after the testa20 Nichols v. Nichols, 2 Phillim. tor's bounty to watch the testator 180; Lister v. Smith, 3 Sw. & Tr. and, as his mind grew weaker, to 282; Comstock v. Hadlyme Ecc. tamper with him and to induce Soc., 8 Conn. 254, 20 Am. Dec. 100; him to make declarations that Farrar v. Ayres, 5 Pick. (Mass.) were inconsistent with the will. 404; Fleming v. Morrison, 187 would be sufficient to induce unMass. 120, 105 Am. St. Rep. 386, scrupulous persons to do such 72 N. E. 499. As to parol declara- miserable work, and even go fur. tions, see g 53.

ther and suborn witnesses, to

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scrivener in drafting a will, wherein he has omitted to insert certain legacies, render the will void. 21

$ 603. Great Latitude Is Allowed as to the Character of Evi

dence.

To ascertain when coercion and consequent subversion of intention exist requires a very extended and refined inquiry in a probate case, and for this reason the courts allow great latitude on an issue of undue influence.22 The financial worth of a contestant is admissible to show why he did not receive a larger share.23 It has been said that when the issues before the jury are fraud and undue influence, any evidence, however slight, tending to prove the issues, is admissible.24 Accordingly we find that evidence has been held admissible which afforded an insight not otherwise obtainable into the private history of the family, the relations of the testator with his second wife, and the means she employed to alienate his affections from the children of his first wife.25 So where a man just divorced married a woman of means, who died a few

swear to imaginary declarations of the testator, inconsistent with the terms of his will, pretended to have been made both before and after the will was executed. The statute, which requires the will to be in writing and properly witnessed, would afford but little protection to the testator or to the real objects of his bounty, if proof of such declarations could be ad. mitted." - Couch V. Eastham, 27 W. Va. 796, 55 Am. Rep. 346.

21 Comstock v. Hadlyme E. Soc., 8 Conn. 254, 20 Am. Dec, 100.

22 Boyse v. Rossborough, 6 H, L. Cas. 42, 58; In re Hermann's Will,

87 Misc. Rep. 476, 150 N. Y. Supp. 118, 126; Rollwagen v. Rollwagen, 63 N. Y. 504, 519; Horn v. Pullman, 72 N. Y. 269, 276; In re Woodward's Will, 167 N. Y. 28, 31, 60 N. E. 233; In re Esterbrook's Estate, 83 Vt. 229, 75 Atl. 1.

23 Mowry V. Norman, 223 Mo. 463, 122 S. W. 724; In re Esterbrook's Estate, 83 Vt. 229, 75 Atl. 1.

24 Clark v. Stansbury, 49 Md. 346. See, also, Gilmore V. Gilmore, 86 N. C. 301.

25 Reynolds V. Adams, 90 ni. 134, 32 Am. Rep. 15.

weeks after leaving him all her property, a broad latitude of inquiry into their relations before and after marriage was considered proper.26 And evidence of a suit brought by the testator against his son is admissible to show the feeling entertained by the deceased.27 But it is not all circumstances, nor all misconduct on the part of a beneficiary, that may be placed in evidence; any fact which does not logically bear on the coercion of the testator's mind in and about the very act of the will is not entitled to be received on the issue of undue influence.28

8 604. Undue Influence May Be Established by Circumstantial

Evidence.

Undue influence need not be established by direct proof, but may be shown by facts from which it may be rationally inferred. From the very nature of things, it can rarely be proved by direct evidence. It is seldom exercised openly in the presence of others.29 The relations of the parties, surrounding circumstances, the habits and inclinations of the testator, his purposes and wishes, expressed at times and under conditions which lent verity to his statements, all furnish competent sources for the guidance of courts when called upon to decide the question.30 However, the circumstances relied upon to show

26 Potter's Appeal, 53 Mich. 106, mann's Will, 87 Misc. Rep. 476, 150 18 N. W. 575.

N. Y. Supp. 118, 126. 27 Canada's Appeal, 47 Conn. 30 In re Patterson's Estate, 68 450. See, also, Mooney v. Olsen, Wash. 377, 123 Pac. 515; Matter 22 Kan. 69.

of Van Ness' Will, 78 Misc. Rep. 28 In re Caffrey's Will, 95 Misc. 592, 139 N. Y. Supp. 485; RollRep. 466, 159 N. Y. Supp. 99, 102. wagen v. Rollwagen, 63 N. Y. 504,

29 Meier v. Buchter, 197 Mo. 68, 505; In re Tresidder's Estate, 70 7 Ann. Cas. 887, 6 L. R. A. (N. S.) Wash. 15, 125 Pac. 1034, 1036. 202, 94 S. W. 883; Matter of Van It can not be doubted, however, Ness' Will, 78 Misc. Rep. 592, 602, that the exercise of undue influ139 N. Y. Supp. 485; In re Her. ence in fact may be inferred from

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undue influence must be such as, taken together, point unmistakably to the fact that the mind of the testator was so governed by another that the will was the product of the latter. 31 It has been said it is not sufficient to show that the circumstances attending the execution of the will of a testator of sound mind are consistent with the hypothesis of its having been obtained by undue influence; it must be shown they are inconsistent with a contrary hypothesis.82 surrounding circumstances, taken tablish it, and from which it may in connection with statements reasonably and naturally be in. made by the person alleged to ferred. It was also said that a have exercised such influence, and court should be liberal in admitwho is a beneficiary · under the ting evidence of all circumstances, will. — Fairbank v. Fairbank, 92 even though slight, which may Kan, 45, 139 Pac. 1011, 92 Kan. tend, in conjunction with other 492, 141 Pac. 297; Grundmann V. circumstances, to throw light Wilde, 255 Mo. 109, 164 S. W. 200; upon the relations of the parties Naylor V. McRuer, 248 Mo. 423, and upon the disputed questions 154 S. W. 772.

of undue influence." - Lehman v. 31 In re Storer's Will, 28 Minn. Lindenmeyer, 18 Colo. 305, 109 9, 11, 8 N. W. 827; In re Hess' Pac. 956, 959; In re Shell's Estate, Will, 48 Minn, 504, 31 Am. St. Rep. 28 Colo. 167, 89 Am, St. Rep. 181, 665, 51 N. W. 614.

53 L. R. A. 387, 63 Pac. 413. This court has approved the fol. As was said in Estate of Mclowing as a correct announcement Devitt, 95 Cal. 17, 33, 34, 30 Pac. of the law governing will contests, 101: "Evidence must be produced when the issue is whether the will that pressure was brought to bear was or was not produced by undue directly upon the testamentary influence: "A charge of undue in- act; but this evidence need not fluence is substantially that of be direct. Circumstantial evidence fraud, and it can seldom be shown is sufficient. It must, however, by direct and positive evidence. more than raise a suspicion." See, While it is true that it must be also, In re Weber's Estate, 15 Cal. proved, and not presumed, yet it App. 224, 114 Pac. 597, 602. can be, and most generally is, 32 Boyse v. Rossborough, 6 H. L. proven by evidence of facts and Cas. 51. See, also, Council v. May. circumstances which as to them. hew, 172 Ala. 295, 55 So. 314; selves may admit of little dispute, Brackey v. Brackey, 151 Iowa 99, but which are calculated to es. 130 N. W. 370; In re Hess' Will,

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