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petent to show undue influence.49 Conversations expressing only wishes and desires, and a dissatisfaction with a previous will, are irrelevant on such an issue ;5° nor can undue influence be established by proof of the testator's declarations that the will was procured by fraud and undue influence.51 The general rule is that statements by the testator, either before or after the execution of his will, although in conflict with its provisions, do not invalidate or modify the will in any manner. A will can not be altered or revoked by parol declarations.52 This is especially true when made after the will has been executed; the instrument can not be impeached in such a manner.58

8 609. Declarations as to Intended Manner of Disposing of

Property: Undue Influence. Although the declarations of a testator may be inadmissible to establish undue influence, yet there is a distinction when offered to defend the will against an attack on that ground. Declarations made prior to the execution of the will may be admitted by way of rebuttal to show the testator's intentions as to the disposition of his property. A will made in conformity with repeated statements of the testator is more likely to have been

49 Barker v. Barker, 36 N. J. Eg. 37 N. E. 837; Hill v. Bahrns, 158 259.

Ill. 314, 41 N. E. 912; Harp v. Such evidence would be com- Parr, 168 Ill. 459, 48 N. E 113; petent to show that the will was England 'v. Fawbush, 204 III. 384, spurious. — Barker V. Barker, 36 68 N. E. 526. See § 363. N. J. Eq. 259.

53 Estate of Ricks, 160 Cal. 450, 50 Ryman v. Crawford, 86 Ind. 117 Pac. 532, 538; Estate of Ben262.

ton, 131 Cal. 472, 63 Pac. 775; 51 Crissick's Will, (Iowa) 156 Estate of Arnold, 147 Cal. 583, 593, N. W. 415.

82 Pac. 252; Estate of Snowball, 52 Taylor v. Pegram, 151 III. 106, 157 Cal. 301, 107 Pac. 598.

executed without undue influence than if contrary thereto.54 But the mere fact that a will differs from the testator's previously expressed intentions is of no weight in an issue of undue influence, although it may become important when taken in conjunction with other facts.55 Thus the fact that dispositions are made in accordance with the testator's previously expressed intentions, and that the objects of his bounty are his relatives and friends, is strong evidence in rebuttal of undue influence; while unnatural bequests not in accordance with his previously declared purposes are in its support.56 Also

54 Roberts v. Trawick, 17 Ala. Allen v. Public Admr., 1 Bradf. 55, 52 Am. Dec. 164; Waters v. (N. Y.) 378; Rambler V. Tryon, Waters, 222 Ill. 26, 113 Am. St. 7 Serg. & R. (Pa.) 90, 10 Am. Dec. Rep. 359, 78 N. E. 1; Bundy v. Mc- 444; Howell v. Barden, 14 N. C. Knight, 48 Ind. 502; Lamb v. 442; Hester v. Hester, 15 N. C. Lamb, 105 Ind. 456, 5 N. E. 171; 228. Goodbar v. Lidikey, 136 Ind. 1, In Sheehan v. Kearney, 82 Miss. 43 Am. St. Rep. 296, 35 N. E. 691; 688, 35 L. R. A. 102, 21 So. 41, Dye y. Young, 55 Iowa 433, 7 Whitfield, J., suggested, as the N. W. 678; Montague V. Allan's true solution of the admissibility Exr., 78 Va. 592, 49 Am. Rep. 384. of declarations of intention, the

Undue influence can not be in- following: "What such declaraferred when the provisions of a tions are evidence of is not in will are consistent with the pre- themselves alone that the testator viously expressed intentions of did have the testamentary inten. the testator, and are not, in them- tions he declared he had, selves, unnatural or unfair, and but that he did say he had the when those charged with exerting testamentary intentions testified undue influence derive no advan. to; and the jury are then to draw tage from the will. Cornwell v. such inference as the whole evi. Riker, 2 Demarest (N. Y.) 354. dence warrants, that they were

55 Waters v. Waters, 222 Ill. 26, or were not his real testamentary 113 Am. St. Rep. 359, 78 N. E. 1; intentions, from these declarations Wood Bishop, 1 Demarest as compared with those set forth (N. Y.) 512.

in the will, and looking to the 56 Mooney v. Olsen, 22 Kan, 69; change or absence of change in Beaubien v. Cicotte, 12 Mich. 459; his condition, family, property, Cawthorn v. Haynes, 24 Mo. 236; state of feelings, affections, etc.,

V.

the testator's known wishes and previous declarations are admissible on an issue of fraud as tending to show knowledge of the contents of the instrument. 57

8 610. Declarations of Testator as Evidence of Mental Condi.

tion. Declarations of a testator, not part of the res gesta, are not admissible either to prove or disprove any statement of fact contained in them, nor for the purpose of showing the exercise of undue influence.58 But undue influence is associated with testamentary capacity, a strong and vigorous mind being better able and more likely to resist any influence than one which is weak and vacillating:59 For such reasons declarations of a testator, either before or after the execution of the will, are admissible because from a fair inference from all the circumstances such declarations show the party's mind at the time the will was executed, his susceptibility to the influence, and his relations with those around him and the persons who are the beneficiaries of his bounty.60 Where mental cabetween the time of making them Cal. 301, 107 Pac. 598, 602; Water. and the will.

And if

man v. •Whitney, 11 N. Y. 157, they believe they were really as 62 Am. Dec. 71; Marx v. McGlynn, declared, at that time, an infer- 88 N. Y. 357, 374; Matter of Wood. ence might legitimately be drawn ward's Will, 167 N. Y. 28, 60 N. E. that, when the subsequent will 233; Smith v. Keller, 205 N. Y. conformed to them, they had con- 39, 98 N. E. 214. tinued down to the making of the See $ 362. will, and when the subsequent will As to the admission of declara. did not conform to them, the tes- tions of the testator, and extrinsic tator had purposely misstated his circumstances, on the issue of tesintentions, .. or that the will tamentary capacity, see $$ 356-363. was not his will, but the product 89 See § 361. of undue influence."

60 Piercy v. Piercy, 18 Cal. App. 57 Montague v. Allan's Exr., 78 751, 124 Pac. 561; Canada's Appeal, Vt. 592, 49 Am. Rep. 384.

47 Conn. 450; Cockeram v. Cock58 In re Snowball's Estate, 157 eram, 17 Ill. App. 604; Todd v.

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pacity is involved, as upon the issue of undue influence, it is only necessary that the declarations testified to should be sufficiently near in point of time so as to be of value in determining the matter in issue. The question of remoteness is one for the court to determine according to all the circumstances of the case, and the weight of the testimony is to be governed according to the facts.61 The question of fraud may or may not involve mental capacity.62 Where the issue is mistake, fraud, duress Fenton, 66 Ind. 25; Mooney V. Evidence that one said after Olsen, 22 Kan. 69; May v. Bradlee, making his will, that if he had it 127 Mass. 414; Griffith v. Diffen- to do over again he would make a derffer, 50 Md. 466, 480; In re different disposition of his propClark, 40 Hun (N. Y.) 233; In re erty, was held admissible. — ParHermann's Will, 87 Misc. Rep. 476, sons v. Parsons, 66 Iowa 754, 21 150 N. Y. Supp. 118, 133; Water- N. W. 570, 24 N. W. 564.

V. Whitney, 11 N. Y. 157, In a will contest, declarations 62 Am. Dec. 71; Cudney v. Cudney, made by the testatrix prior to the 68 N. Y. 148; Ekern v. Erickson, execution of the will are admis(S. D.) 157 N. W. 1062, 1066; In sible in evidence for the purpose re Miller's Estate, 31 Utah 415, 88 of showing the mental capacity of Pac. 338, 342. See, also, Dennis v. the testatrix and her susceptibility Weekes, 51 Ga. 24; Boylan v. to extraneous influences, but are Meeker, 28 N. J. L. 274; Allen v. not admissible for the purpose of Public Admr., 1 Bradf. (N. Y.) 378. establishing the substantive fact

When declarations of a testator of undue influence. - Hobson v. have been introduced for the pur- Moorman, 115 Tenn. 73, 5 Ann. pose of showing a settled dislike Cas. 601, 3 L. R. A. (N. S.) 749, to the son to whom he has given 90 S. W. 152. the whole of his property, it may 81 See $361; In re Denison's be shown that the declarations Appeal, 29 Conn. 399; Shailer v. had no foundation in fact. Can- Bumstead, 99 Mass. 112; Lane v. ada's Appeal, 47 Conn. 450.

Moore, 151 Mass. 87, 21 Am. St. Declarations of the testator that Rep. 430, 23 N. E. 828; Chambers the will was procured through V. Chambers, 61 App. Div. 299, undue influence are admissible as 70 N. Y. Supp. 483; Miller v. Livevidence of the testator's mental ingstone, 31 Utah 415, 88 Pac. 338. condition.-Crissick's Will, (Iowa) 62 See $$ 598-600. 156 N. W. 415; Wilson v. Taylor, 167 Ky. 162, 180 S. W. 45.

or some other cause not involving the strength of mind of the testator, declarations by him would generally be limited to those so connected with the execution of the will as to be a part of the res gesta, since otherwise they would be mere hearsay statements.68 $ 611. The Same Subject.

On the issue of undue influence two elements are involved: (1) The conduct of the party charged with exercising the influence, and (2) the mental state of the testator as affected by such influence which may require a disclosure of his strength of mind and of his purpose as to the disposition of his property. The declarations of the testator are competent because in such way the condition of his mind is revealed, and the state of his mind at one time is competent evidence of its state at other times not too remote, because mental conditions have some degree of permanency.84 Such declarations, however, can not be received for the purpose of showing the exercise of undue influence by another, but are limited to the sole question of the condition of the testator's mind, and are received for the purpose of showing the effect of undue influence established by other evidence. Unless there be independent proof indicating the presence of undue influence, there would be no basis for the introduction of evidence showing a condition of mind susceptible to an influence not shown to have existed. 65

63 See § 360.

64 Piercy v. Piercy, 18 Cal. App. 751, 124 Pac. 561; Rusling v. Rusling, 36 N. J. Eq. 603; In re Snowball's Estate, 157 Cal. 301, 107 Pac. 598, 602.

65 In re Arnold's Estate, 147 Cal. 683, 594, 82 Pac. 252; In Thomas' Estate, 155 Cal. 488, 101

Pac. 798; In re Snowball's Estate, 157 Cal. 301, 107 Pac. 598, 607; Peery v. Peery, 94 Tenn. 328, 29 S. W. 1; Kirkpatrick v. Jenkins, 96 Tenn. 85, 33 S. W. 819; Hobson v. Moorman, 115 Tenn. 73, 5 Ann, Cas. 601, L. R. A. (N. S.) 749, 90 S. W. 152.

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