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

14

§ 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.17

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

Under the early English law, prisoners, captives, and the like, those lacking liberty or freedom of will, were not prevented absolutely from making wills, but each case was decided according to the particular circumstances surrounding it, and it was for the judge to say, considering the duress, whether the person had "liberum animum testandi."-2 Bl. Com. *497.

16 Hamilton v. Smith, 57 Iowa 15, 42 Am. Rep. 39, 10 N. W. 276. 17 Commonwealth v. Drew, 3 Cush. (57 Mass.) 279; State v. Bryant, 14 Mo. 340; Commonwealth v. Gillespie, 7 Serg. & R. (Pa.) 469, 10 Am. Dec. 475.

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

§ 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 re Hermann's Will, 87 Misc. Rep. 476, 150 N. Y. Supp. 118, 125; Anderson v. Anderson, 43 Utah 26, 134 Pac. 553, 557.

19 See § 46. Watson v. Clark, (Iowa) 122 N. W. 913.

20 Nichols v. Nichols, 2 Phillim. 180; Lister v. Smith, 3 Sw. & Tr. 282; Comstock v. Hadlyme Ecc. Soc., 8 Conn. 254, 20 Am. Dec. 100; Farrar v. Ayres, 5 Pick. (Mass.) 404; Fleming v. Morrison, 187 Mass. 120, 105 Am. St. Rep. 386, 72 N. E. 499. As to parol declarations, see § 53.

"If such declarations could be admitted to prove that the will was procured by fraud or duress or mistake, no man's will would be safe. The temptation to disappointed seekers after the testator's bounty to watch the testator and, as his mind grew weaker, to tamper with him and to induce him to make declarations that were inconsistent with the will. would be sufficient to induce unscrupulous persons to do such miserable work, and even go further and suborn witnesses, to

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 Evidence.

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 admitted." 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 Ill. 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

§ 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, 18 N. W. 575.

27 Canada's Appeal, 47 Conn. 450. See, also, Mooney v. Olsen,

22 Kan. 69.

28 In re Caffrey's Will, 95 Misc. Rep. 466, 159 N. Y. Supp. 99, 102.

29 Meier v. Buchter, 197 Mo. 68, 7 Ann. Cas. 887, 6 L. R. A. (N. S.) 202, 94 S. W. 883; Matter of Van Ness' Will, 78 Misc. Rep. 592, 602, 139 N. Y. Supp. 485; In re Her

mann's Will, 87 Misc. Rep. 476, 150 N. Y. Supp. 118, 126.

30 In re Patterson's Estate, 68 Wash. 377, 123 Pac. 515; Matter of Van Ness' Will, 78 Misc. Rep. 592, 139 N. Y. Supp. 485; Rollwagen v. Rollwagen, 63 N. Y. 504, 505; In re Tresidder's Estate, 70 Wash. 15, 125 Pac. 1034, 1036.

It can not be doubted, however, that the exercise of undue influence in fact may be inferred from

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

31 In re Storer's Will, 28 Minn. 9, 11, 8 N. W. 827; In re Hess' Will, 48 Minn. 504, 31 Am. St. Rep. 665, 51 N. W. 614.

This court has approved the following as a correct announcement of the law governing will contests, when the issue is whether the will was or was not produced by undue influence: "A charge of undue influence is substantially that of fraud, and it can seldom be shown by direct and positive evidence. While it is true that it must be proved, and not presumed, yet it can be, and most generally is, proven by evidence of facts and circumstances which as to themselves may admit of little dispute, but which are calculated to es

tablish it, and from which it may reasonably and naturally be inferred. It was also said that a court should be liberal in admitting evidence of all circumstances, even though slight, which may tend, in conjunction with other circumstances, to throw light upon the relations of the parties and upon the disputed questions of undue influence." - Lehman v. Lindenmeyer, 48 Colo. 305, 109 Pac. 956, 959; In re Shell's Estate, 28 Colo. 167, 89 Am. St. Rep. 181, 53 L. R. A. 387, 63 Pac. 413.

As was said in Estate of McDevitt, 95 Cal. 17, 33, 34, 30 Pac. 101: "Evidence must be produced that pressure was brought to bear directly upon the testamentary act; but this evidence need not be direct. Circumstantial evidence is sufficient. It must, however, do more than raise a suspicion." See, also, In re Weber's Estate, 15 Cal. App. 224, 114 Pac. 597, 602.

32 Boyse v. Rossborough, 6 H. L. Cas. 51. See, also, Council v. Mayhew, 172 Ala. 295, 55 So. 314; Brackey v. Brackey, 151 Iowa 99, 130 N. W. 370; In re Hess' Will,