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petent to show undue influence.19 Conversations expressing only wishes and desires, and a dissatisfaction with a previous will, are irrelevant on such an issue;50 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. 53

§ 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

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37 N. E. 837; Hill v. Bahrns, 158 Ill. 314, 41 N. E. 912; Harp v. Parr, 168 Ill. 459, 48 N. E 113; England v. Fawbush, 204 Ill. 384, 68 N. E. 526. See § 363.

53 Estate of Ricks, 160 Cal. 450, 117 Pac. 532, 538; Estate of Benton, 131 Cal. 472, 63 Pac. 775; Estate of Arnold, 147 Cal. 583, 593, 82 Pac. 252; Estate of Snowball, 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. 55, 52 Am. Dec. 164; Waters v. Waters, 222 II. 26, 113 Am. St. Rep. 359, 78 N. E. 1; Bundy v. McKnight, 48 Ind. 502; Lamb v. Lamb, 105 Ind. 456, 5 N. E. 171; Good bar v. Lidikey, 136 Ind. 1, 43 Am. St. Rep. 296, 35 N. E. 691; Dye v. Young, 55 Iowa 433, 7 N. W. 678; Montague v. Allan's Exr., 78 Va. 592, 49 Am. Rep. 384. Undue influence can not be inferred when the provisions of a will are consistent with the previously expressed intentions of the testator, and are not, in themselves, unnatural or unfair, and when those charged with exerting undue influence derive no advantage from the will.-Cornwell v. Riker, 2 Demarest (N. Y.) 354.

55 Waters v. Waters, 222 Ill. 26, 113 Am. St. Rep. 359, 78 N. E. 1; Wood v. Bishop, 1 Demarest (N. Y.) 512.

56 Mooney v. Olsen, 22 Kan. 69; Beaubien v. Cicotte, 12 Mich. 459; Cawthorn v. Haynes, 24 Mo. 236;

Allen v. Public Admr., 1 Bradf. (N. Y.) 378; Rambler v. Tryon, 7 Serg. & R. (Pa.) 90, 10 Am. Dec. 444; Howell v. Barden, 14 N. C. 442; Hester v. Hester, 15 N. C. 228.

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In Sheehan v. Kearney, 82 Miss. 688, 35 L. R. A. 102, 21 So. 41, Whitfield, J., suggested, as the true solution of the admissibility of declarations of intention, the following: "What such declarations are evidence of is not in themselves alone that the testator did have the testamentary intentions he declared he had, but that he did say he had the testamentary intentions testified to; and the jury are then to draw such inference as the whole evidence warrants, that they were or were not his real testamentary intentions, from these declarations as compared with those set forth in the will, and looking to the change or absence of change in his condition, family, property, state of feelings, affections, etc.,

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

§ 610. Declarations of Testator as Evidence of Mental Condition.

Declarations of a testator, not part of the res gestæ, 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 ca

between the time of making them

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and the will. . . . And if . . they believe they were really as declared, at that time, an inference might legitimately be drawn that, when the subsequent will conformed to them, they had continued down to the making of the will, and when the subsequent will did not conform to them, the testator had purposely misstated his intentions, . . . or that the will was not his will, but the product of undue influence."

57 Montague v. Allan's Exr., 78 Vt. 592, 49 Am. Rep. 384.

58 In re Snowball's Estate, 157

Cal. 301, 107 Pac. 598, 602; Water

man v. Whitney, 11 N. Y. 157,
62 Am. Dec. 71; Marx v. McGlynn,
88 N. Y. 357, 374; Matter of Wood-
ward's Will, 167 N. Y. 28, 60 N. E.
233; Smith v. Keller, 205 N. Y.
39, 98 N. E. 214.

See § 362.

As to the admission of declarations of the testator, and extrinsic circumstances, on the issue of testamentary capacity, see §§ 356-363. 59 See § 361.

60 Piercy v. Piercy, 18 Cal. App. 751, 124 Pac. 561; Canada's Appeal, 47 Conn. 450; Cockeram v. Cockeram, 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. Olsen, 22 Kan. 69; May v. Bradlee, 127 Mass. 414; Griffith v. Diffenderffer, 50 Md. 466, 480; In re Clark, 40 Hun (N. Y.) 233; In re Hermann's Will, 87 Misc. Rep. 476, 150 N. Y. Supp. 118, 133; Waterman v. Whitney, 11 N. Y. 157, 62 Am. Dec. 71; Cudney v. Cudney, 68 N. Y. 148; Ekern v. Erickson, (S. D.) 157 N. W. 1062, 1066; In re Miller's Estate, 31 Utah 415, 88 Pac. 338, 342. See, also, Dennis v. Weekes, 51 Ga. 24; Boylan v. Meeker, 28 N. J. L. 274; Allen v. Public Admr., 1 Bradf. (N. Y.) 378. When declarations of a testator have been introduced for the purpose of showing a settled dislike to the son to whom he has given the whole of his property, it may be shown that the declarations had no foundation in fact.-Canada's Appeal, 47 Conn. 450.

Declarations of the testator that the will was procured through undue influence are admissible as evidence of the testator's mental condition. Crissick's Will, (Iowa) 156 N. W. 415; Wilson v. Taylor, 167 Ky. 162, 180 S. W. 45.

Evidence that one said after making his will, that if he had it to do over again he would make a different disposition of his property, was held admissible. - Parsons v. Parsons, 66 Iowa 754, 21 N. W. 570, 24 N. W. 564.

In a will contest, declarations made by the testatrix prior to the execution of the will are admissible in evidence for the purpose of showing the mental capacity of the testatrix and her susceptibility to extraneous influences, but are not admissible for the purpose of establishing the substantive fact of undue influence. - Hobson v. Moorman, 115 Tenn. 73, 5 Ann. Cas. 601, 3 L. R. A. (N. S.) 749, 90 S. W. 152.

61 See § 361; In re Denison's Appeal, 29 Conn. 399; Shailer v. Bumstead, 99 Mass. 112; Lane v. Moore, 151 Mass. 87, 21 Am. St. Rep. 430, 23 N. E. 828; Chambers v. Chambers, 61 App. Div. 299, 70 N. Y. Supp. 483; Miller v. Livingstone, 31 Utah 415, 88 Pac. 338. 62 See §§ 598-600.

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 gestæ, 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. 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. 583, 594, 82 Pac. 252; In re Thomas' Estate, 155 Cal. 488, 101

64

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, 3 L. R. A. (N. S.) 749, 90 S. W. 152.

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