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§ 585. An Unjust Will Alone Causes No Presumption of Undue Influence.

Unequal distribution alone will not raise a presumption of undue influence. 46 Thus, in a case where a mother gave nearly all her property to one son who was on confidential terms with her and assisted in having the will drawn and executed, and the evidence showed that she harbored resentment against her other son on account of certain business transactions between them, these facts were not considered sufficient to establish undue influence over a testatrix of sound mind, in the absence of proof of importunity or persuasion.47

It is the formally expressed intent of the testator which prevails, and courts have neither the right nor power to change or to overthrow such intent, when properly expressed, on the ground of undue influence, in the absence of direct and substantial proof bringing the case within the established rules defining such influence. If the evidence in any case, when viewed from a standpoint most favorable to the contestant, does not show undue influence as defined by law, the case should not be submitted to the jury merely because of a suspicion or because it does not conform to ideas of propriety.48

7 Ore. 42. See, also, Herster v. Herster, 116 Pa. St. 612, 11 Atl. 410.

46 Kitchell v. Beach, 35 N. J. Eq. 446. See, also, Kise v. Heath, 33 N. J. Eq. 239.

While an unnatural disposition of property may be considered in connection with evidence of undue influence, it is ineffectual as proof in the absence of other evidence that undue influence was exer

cised, because in the absence of statutory restrictions every one with testamentary capacity has the right to dispose of his property according to his own desires. -Singer v. Taylor, 90 Kan. 285, 133 Pac. 841, 842.

47 Dale v. Dale, 36 N. J. Eq. 269. 48 In re Lavinburg's Estate, 161 Cal. 536, 119 Pac. 915, 918; In re Kilborn's Estate, 162 Cal. 4, 120

§ 586. When Provisions of an Unjust Will May Be Considered. An unjust or unnatural will, although not in itself evidence of undue influence, may be considered by the jury as tending to show that the testator was subjected to wrongful influences. Courts look with suspicion upon those testamentary dispositions which disregard natural ties, and this suspicion is increased when any controlling influence is shown to have been exercised, or is seen to have been in a position to have been exercised, in opposition to the canons of descent and distribution. Although the testator has the abstract right of disposing of his estate by will as he may desire, yet a will which produces unnatural and unjust results demands close judicial scrutiny. If there is substantial evidence of undue influence, a harsh and unreasonable will calls for suspicion, and its provisions should be submitted to the jury as tending to show undue influence when such is an issue. They may be considered by the jury with all the other facts and circumstances of the case.49

Pac. 762, 765; Beckett v. Stuart, 23 Cal. App. 373, 138 Pac. 115.

An unjust and unnatural will is not proof of mental incapacity. See $353-355.

Where the issue of undue influence is raised in a will contest, the court may direct a verdict when the facts require it. In re Carey's Estate, 56 Colo. 77, Ann. Cas. 1915B, 951, 136 Pac. 1175, 1179; In re Shell's Estate, 28 Colo. 167, 89 Am. St. Rep. 181, 53 L. R. A. 387, 63 Pac. 413.

49 Kletschka v. Kletschka, 113 Minn. 228, 129 N. W. 372; Muller v. St. Louis Hospital Assn., 5 Mo.

App. 390; affirmed, 73 Mo. 242; Catholic University v. O'Brien, 181 Mo. 68, 79 S. W. 901; Roberts v. Bartlett, 190 Mo. 680, 700, 89 S. W. 858; King v. Gilson, 191 Mo. 307, 327, 90 S. W. 367.

See 88 354, 355, as to unjust and unnatural wills being considered on the issue of testamentary capacity.

In Minnesota it has been ruled that evidence shall not be admitted to show that the distribution was grossly unequal, even if offered in connection with proof of impaired intellect, in the absence of actual evidence of undue

§ 587. Suspicious Circumstances Dehors the Will Are Heightened by Unjust Provisions.

Suspicious circumstances dehors the instrument may be heightened in effect by the provisions of the will itself; as where it shows an unaccountable preference for one child above another, or where a large portion of the estate is devised away from those whom natural affection would select as the beneficiaries of the testator's bounty. Accordingly, we find it held that when the testator's mind was very feeble at the time he executed the will, rendering him liable to undue influence, an unnatural and unreasonable disinheriting of one who would naturally share in the property should be shown to have been freely and intelligently made.50 Thus, if a father, without apparent cause, disinherit four of his six children, the burden

influence. In re Storer's Will, 28 Minn. 9, 8 N. W. 827.

In an action to set aside, on the ground of undue influence, a will which makes an unnatural and inadequate provision for one of the children of the testator, evidence that prior to the execution of the will advancements were made to all the children of the testator except the one insufficiently provided for by the will is competent on the issues of undue influence and testamentary incapacity, in that it tends to show an unnatural will.-Meier v. Buchter, 197 Mo. 68, 7 Ann. Cas. 887, 6 L. R. A. (N. S.) 202, 94 S. W. 883.

In Jackson v. Jackson, 39 N. Y. 153, it is said: "I recognize the weight of authority found in the cases relied on by the appellant, on the subject of undue influence,

and the call upon the court for jealous scrutiny, where the dispositions made by a testator in moments of great physical weakness, are extraordinary, and especially when they indicate an insensibility to the dictates of natural affection and what are ordinarily recognized as the claims of children, or other near relatives, and still more so if those dispositions are in favor of unworthy objects."

50 Esterbrook V. Gardner, 2 Demarest (N. Y.) 543.

Where a bachelor, over seventy years of age, while in a moribund condition, executed at the instance of his housekeeper a will she had had prepared for four years, which gave her all of his property, and of which his relatives, and his brother, who lived in an adjoining house, had no knowledge, the facts

of proof is upon the two taking under the will to show the absence of undue influence.51 Where the question is susceptible of doubt, inherent justice of the provisions of the will tends to solve the doubt in favor of the proponents.52

§ 588. Influence Resulting From Family Relations.

Lawful influence, such as that arising from legitimate family and social relations, must be allowed to produce its natural results, even in influencing last wills. However great the influence thus generated may be, it has no taint of unlawfulness. There can be no presumption of its actual unlawful exercise merely from the facts that it is

were considered sufficient to show undue influence. - Byard v. Conover, 39 N. J. Eq. 244.

See, also, Phipps v. Van Kleeck, 22 Hun (N. Y.) 541; McCoy v. McCoy, 4 Redf. (N. Y.) 54; Demmert v. Schnell, 4 Redf. (N. Y.) 409.

Where for three months before executing her will a testatrix in feeble health was in personal intercourse with a son who was apparently hostile to her other son, and who prevented the latter from visiting his mother, and under these circumstances the will was written devising her whole fortune of forty-five thousand dollars to the former, except two thousand dollars to the children of the latter, the facts were considered sufficient to show undue influence.Dale v. Dale, 38 N. J. Eq. 274. See, also, Greenwood v. Cline, 7 Ore. 17.

51 Gay v. Gillilan, 92 Mo. 250, 1 Am. St. Rep. 712, 5 S. W. 7. See,

also, In re Andrews' Will, 33 N. J. Eq. 514; Kise v. Heath, 33 N. J. Eq. 239.

Where a will is contrary to the dictates of natural affection, of justice, and of duty, the burden is on the proponents of giving some reasonable explanation of its unnatural character, or at least, that it was not the result of mental defect, obliquity, or perversion. Meier v. Buchter, 197 Mo. 68, 7 Ann. Cas. 887, 6 L. R. A. (N. S.) 202, 94 S. W. 883; Matter of Cleveland's Will, 28 Misc. Rep. 369, 59 N. Y. Supp. 985.

It is competent to show that no foundation existed for the exclusion by the testator of the children of his first marriage from participation in his estate. - Mullen v.

Helderman, 87 N. C. 471.

52 Estate of Williams, 13 Phila. (Pa.) 302, 303; Patterson v. Patterson, 6 Serg. & R. (Pa.) 55,

known to have existed and that it has manifestly operated on the testator's mind as a reason for his testamentary dispositions. Such influences are naturally very unequal and naturally productive of inequalities in distribution; but as they are lawful, and as the law can not criticize and measure them so as to attribute to them their proper effect, no will can be condemned because the existence of such influences is proved, or because the will contains in itself proof of their effect. It is only when such an influence is unduly exerted so as to prevent the will from being truly the act of the testator, that the law condemns it as a vicious element of the testamentary act.53 A broad distinction as to the effect of influence has been drawn where each of two legatees stands in a confidential relationship to the testator, one being a stranger and the

53 Dean v. Negley, 41 Pa. St. 312, 317, 80 Am. Dec. 620; In re Weed's Will, 143 App. Div. 822, 127 N. Y. Supp. 966.

If a wife by her virtues has gained such an ascendency over her husband, and so riveted his affections that her good pleasure is a law to him, such an influence can never be a reason for impeaching a will made in her favor, even to the exclusion of the residue of his family; nor would it be safe to set aside a will on the ground of influence, importunity, or undue advantage taken of the testator by his wife, though it should be proved she possessed a powerful influence over his mind and conduct in the general concerns of life, unless there should be proof that such influence was specially exerted to procure a will

of such a kind as to be peculiarly acceptable to her, and to the prejudice and disappointment of others. -Small v. Small, 4 Greenleaf, (4 Me.) 220, 16 Am. Dec. 253.

In a New Jersey case a charge of undue influence was considered not to be sustained by the fact that a testator shortly after the discharge of a son from an insane asylum where he had been placed by his brothers in good faith, revoked a devise of a farm to him, and, by codicil, gave him instead an annuity of a hundred dollars, and thereafter attempted to change the codicil, but merely for the purpose of increasing the annuity to two hundred dollars.Conover v. Conover, (N. J.) 8 Atl. 500.

There is no presumption that the will favoring a parent or a

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