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then thrown on the person offering the will, to show that the testator was acquainted with the contents of the instrument and approved it. 82 The proponent, however, need not show an actual reading of the will to the testator, provided he satisfy the court by competent evidence that the contents of the will, at the time of signing it, were what the testator intended it to be.88 Thus if the fact can be established, either by direct or circumstantial evidence, so conclusive as to admit of no reasonable doubt that the last will was truly copied from a previous will, the contents whereof were known to the testator, there will be no difficulty in admitting it to probate.84

8 616. The Same Subject: May Be Shown by Circumstances.

If it can be shown that the will was substantially in accordance with the instructions of the testator, it may be considered sufficient evidence that he was acquainted with

82 Billinghurst v. Vickers, 1 Phil- exhaustion; and that she had frelim. 187; Gerrish v. Nason, 22 Me. quently expressed her intent to 438, 39 Am. Dec. 589; Day v. Day, make an equal distribution among 3 N. J. Eq. 549, 552. See, also, all the children, the question of Blume v. Hartman, 115 Pa, St. 32, fraud and undue influence was 2 Am. St. Rep. 525, 8 Atl. 219. properly submitted to the jury.

As to wills of those deaf, dumb, Blume v. Hartman, 115 Pa. St. 32, or blind, see $$ 348, 349.

2 Am. St. Rep. 525, 8 Atl. 219. It has been held that where the 83 Moore V. Paine, 2 Lee Ecc. preponderance of evidence showed 595; Morrell v. Morrell, L. R. 7 that the testatrix was not ac- Pro. Div. 68; Parker V. Felgate, quainted with the contents of the L. R. 8 Pro, Div. 171; Pettes v. will; that it was executed by her Bingham, 10 N. H. 514; Day V. at the instigation of the propo- Day, 3 N. J. Eq. 549. See, also, nent who drew it, and who was Hastilow v. Stobie, L. R. 1 P. & D. inequitably preferred

the 64; Cleare v. Cleare, L. R. 1 P. & other children; that the testatrix D. 655. was at the time in a state of 84 Day v. Day, 3 N. J. Eq. 549, excessive physical feebleness and 554.

over

its contents.85 Likewise if a testatrix has given instructions for her will, and it is prepared in accordance with them, although at the time of execution she is unable to remember what those instructions were, and is incapable of understanding what has been written, yet if relying upon her solicitor's having embodied her wishes in proper words, she accepts the paper put before her as her will and directs it to be signed, probate will be allowed. 86

The testator's knowledge of the contents of the will may be shown by circumstances, as by its conformity to his known wishes and previous declarations.87 Although it is usually said that one who is illiterate must be shown to have been acquainted with the contents of his will,88 it would seem that where no evidence of fraud is adduced, this would be unnecessary.89 Likewise it is said that evidence of the partial intoxication of the testator, and that he understood English imperfectly, does not tend to prove fraud or undue influence, in the absence of proof that his condition was taken advantage of.90

8 617. Burden of Proof on the Issue of Undue Influence.

As in a case where the issue is the testamentary capacity of the testator, 81 or where a confidential relationship has been shown to have existed between the testator

85 Day v. Day, 3 N. J. Eq. 549, As to wills of those deaf, dumb. 555.

and blind, see $$ 348, 349. 86 Parker V. Felgate, L. R. 8 87 Montague v. Allan's Exr., 78 Pro. Div. 171. This case, however, Va. 592, 49 Am. Rep. 384, Fas compromised before appeal. 88 Guthrie v; Price, 23 Ark. 396; And see

Foot V. Stanton, 1 Day v. Day, 3 N. J. Eq. 549, 551. Deane & S. Ecc. 19, admitting will 89 Patton v. Hope, 37 N. J. Eq. of an epileptic, without evidence 522. of knowledge of contents.

90 Bonse's Will, 18 Ill. App. 433. See $$ 409, 431.

91 See $$ 399-402. II Com. on Wills-5

and the principal beneficiary under the will,92 the authorities are conflicting as to where the burden of proof rests. It is necessary that the proponent should in the first instance establish a prima facie case, by proof of due execution of the will and of the testamentary capacity of the testator,93 although in some jurisdictions testamentary capacity is presumed and the presumption is accepted as evidence of the fact.94 If, however, the provisions of the will,95 or the surrounding circumstances 96 are such as to excite suspicion, such suspicion must be removed. But after the proponent has made prima facie proof, the authorities are at variance as upon whom the burden of proof rests. Undue influence is not presumed, neither is mental incapacity. The cases are similar to this extent: an instrument executed by one lacking testamentary capacity, or executed by reason of undue influence, is not the will of the maker. Both should be denied probate. There is, however, reason for a distinction between the two cases. Testamentary capacity is a positive requirement; it is presumed to exist unless facts to the contrary be shown. A will executed by one lacking testamentary capacity is void. Likewise an instrument which has been forged can not be the will of the purported testator. Undue influence is a negative quality; it can become an issue only in a case where the will has been duly executed by a testator of sound mind. The issue of testamentary capacity goes to the ability to execute the will; the issue of undue influence arises only where it is sought to overthrow a will duly executed by a testator mentally competent, and which, standing as his final, legally, expressed intent, is not lightly to be 92 See 88 594-597.

95 See $ 397. 93 See $ 400.

96 See $$ 397, 398, 587. 94 See $ 399.

was

set aside. The same may be said of fraud, duress, or mistake. Further, fraud directly in many cases, and incidentally in others, is involved in the issue of undue influence; and where such a charge is made, especially as it aims to set aside the legally expressed will of a competent testator, those asserting the charge should be required to sustain it by competent proof. The weight of authority is that after the proponent has established his prima facie case, the burden of proving undue influence by a preponderance of the evidence is upon those who assert it.o7

97 In re Kilborn's Estate, 162 alleged testator, and upon this Cal, 4, 120 Pac. 762, 765; In re question he has the burden of Morcel's Estate, 162 Cal. 188, 121 proof. If he fails to satisfy the Pac. 733, 735; Snodgrass v. Smith, court that the instrument speaks 42 Colo. 60, 15 Ann. Cas. 548, 94 the language and contains the will Pac. 312, 313; Johnson v. Johnson, of the testator, probate must be 187 ni. 86, 58 N. E. 237; Swear- refused." This

apparently ingen v. Inman, 198 Ill. 255, 65 overruled in Re Kindberg's Will, N. E. 80; Michael v. Marshall, 201 207 N. Y. 220, 221, 100 N. E. 789, Ill. 70, 66 N. E. 273; Waters V. although this was questioned in Waters, 222 Ill. 26, 113 Am. St. Re Hermann's Will, 87 Misc. Rep. Rep. 359, 78 N. E. 1; Gates v. Cole, 476, 150 N. Y. Supp. 118, 123, and 137 Iowa 613, 115 N. W. 236; Han- in Re Tod, 85 Misc. Rep. 298, 147 rahan v. O'Toole, 139 Iowa 229, N. Y. Supp. 161, 164, 165. The rule, 117 N. W. 675; In re Dobals' Es. however, would seem to be that tate, (Iowa) 157 N. W. 169, 170; the burden of proof is on the conIn re Eatley's Will, 82 N. J. Eq. testant. See In re Martin, 98 N. Y. 591, 89 Atl. 776, 780; Simpson v. 193, 197; Matter of Kindberg's Durbin, 68 Ore. 518, 136 Pac. 347; Will, 207 N. Y. 220, 228, 229, 100 In re Herr's Estate, 251 Pa. St. N. E. 789; In re Palmateer's Will, 223, 96 Atl. 464.

78 Hun 43, 48, 28 N. Y. Supp. 1062; In New York the decisions are In re Falabella's Will, 139 N. Y. somewhat conflicting. In Roll- Supp. 1003; In re Gedney's Will, Wagen v. Rollwagen, 63 N. Y. 504, 142 N. Y. Supp. 157, 160; In re 517, on the plea of undue influ- Hermann's Will, 87 Misc. Rep. ence, the court says: “A party 476, 150 N. Y. Supp. 118, 135. who offers an instrument for pro- Where it is said that bate as a will must show satisfac- the burden of proof is shifted, 'all torily that it is the will of the that is meant by this is that there

And it has been said that evidence of circumstances must not only show the probability of undue influence, but must be inconsistent with a contrary hypothesis. However, some courts maintain that the burden is always upon the proponent to sustain the will.99 § 618. Forgery: Burden of Proof.

All wills, except nuncupative, must be written or signed by the testator to the extent and in the manner prescribed by statute. Any instrument failing to meet such requireis a necessity of evidence to a matter of fact, cast upon the answer the prima facie case or it proponent the burden of explana. will prevail, but the burden of tion, and the absence of satisfac. maintaining the affirmative of the tory explanation would be an addi. issue involved in the action is tional fact of more or less weight. upon the party alleging the fact But we do not regard it as accuwhich constitutes the issue; and rately correct to say that upon the this burden remains throughout proof of this situation the burden the trial.'"-Snodgrass V. Smith, of proof shifts from the one party 42 Colo. 60, 15 Ann, Cas. 548, 94 to the other. This burden upon Pac. 312; Compher V. Browning, the whole evidence, taking into 219 Ill. 429, 449; 109 Am. St. Rep. consideration the situation 346, 76 N. E. 678.

ferred to and all of the other cir. As to shifting, so called, of the cumstances, is still upon the burden of proof, see 394.

contestant, who is bound to susThe party alleging undue in. tain the proposition asserted by fluence must show that but for its him by a preponderance of all exercise the testator would have the evidence."-O'Brien's Appeal, made a different disposition of his 100 Me. 156, 60 Atl. 880. property than he did.—Emery V. 98 Boyse v. Rossborough, 6 H. L. Emery, 222 Mass. 439, 111 N. E. Cas. 6; In re Hess' Will, 48 Minn. 287.

504, 31 Am. St. Rep. 665, 51 N. W. "Evidence showing the condi. 614; Gay V. Gillilan, 92 Mo. 250, tion of facts referred to may, or 1 Am. St. Rep. 712, 5 S. W. 7. may not, be sufficient to sustain 99 Steinkuehler v. Wempner, 169 the burden of proof resting upon Ind. 154, 15 L. R. A. (N. S.) 673, the contestant, according to the 81 N. E. 482; McReynolds v. other circumstances of the case, Smith, 172 Ind. 336, 86 N. E. 1009; and the determination of the tri. Herring v. Watson, 182 Ind. 374, ibunal which is passing upon the 105 N. E. 900. issue. Such a condition might, as

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