trol of such influence, and that by reason of it the testator was deprived of that free agency indispensable to the making of a valid testamentary disposition of his property.

STATEMENTS MADE BY DECEASED THAT HE INTENDED TO DISINHERIT HIS TWO DAUGHTERS are admissible, where he afterwards did so, to rebut evidence of undue influence.

PROCEEDINGS to try the validity of a will which was offered for probate by plaintiff in error as executor, executed by Nathaniel Davis, deceased. Elizabeth Davis, widow of deceased, would, under the will, the validity of which she asserts, be entitled to a larger share of the property than if testator had died intestate. The will was contested, upon the ground that undue influence had been brought to bear upon deceased by the said Elizabeth and the executor aforesaid. The remaining facts appear from the opinion.

Porter, for the plaintiff.

Peck, for the defendant.

By Court, CHILTON, J. Upon a careful examination of this case, we think it very clearly appears that the share of the widow of Nathaniel Davis, the decedent, as secured by the will of her husband, is much greater than the portion of the estate to which she would have been entitled had said Davis died intestate. Mrs. Davis having died a short time after the death of her husband, without children, her share of the estate belongs to her brothers and sisters. Her interest preponderating in favor of the will, her brother, John Willingham, who was offered by the contestants to defeat the will, was clearly a competent witness, as he was called upon to testify in opposition to his interest. It also follows for the same reason that Roy Griffin, who was the husband of the widow's sister, and who was offered as a witness by the executor, was incompetent, as the effect of his testimony was to sustain the will, and thus to have secured a greater interest in the estate than he would have taken in right of his wife under the statute of distribution.

2. It is recited in the bill of exceptions, that the witness Willingham stated that two or three weeks before making the will in question, he, the witness, went to the house of the decedent and found Mrs. Davis crying. After a short time the testator said to witness, "All I can hear from some people is, a will, a will, a will, but the laws of Alabama make a better will than I or anybody else can make." The plaintiff in error objected to proving this declaration in the court below, but his objection was overruled, and he now insists

One of the

in this court that its admission was erroneous. grounds for impeaching the will relied on by the contestants is that the deceased was fraudulently induced by his wife to sign and publish it; that she took advantage of his old age and infirmities, both of body and mind, and exercised undue and improper influence over him, in order to obtain a will acceptable to her but prejudicial to contestants. Fraud or undue influence in obtaining a will is rarely proved by direct and positive testimony. It is usually made out by proof of facts and circumstances, which when taken separately may be very weak, yet when grouped together and considered collectively may fully satisfy the mind as to the mala fides sought to be established. So in this case, the crying of the wife, and the contemporaneous declarations of the testator, that all some persons spoke of was a will, etc., tended to show on her part great solicitude, and on his, agitation and mental embarrassment. This happened a short time before the will purports to have been executed, and we think was very properly allowed to go to the jury: constituting of itself but feeble proof, yet to be weighed by them in connection with the other facts and circumstances attending the execution of the will. The rule is not so stringent as to require that proof of undue influence should be confined to the time of the execution of the will-—it is sufficient that the will was executed afterwards under the control of such influence, and that by reason of it, the testator was deprived of that free agency indispensable to the making of a valid testamentary disposition of his property: Davis v. Calvert, 5 Gill & J. 269 [25 Am. Dec. 282].

When this case was before us, at a previous term, 13 Ala. 68-83, we held that the declarations of the testator made before and at the time of the execution of the will, or so shortly thereafter as to form part of the res gestæ, may be received to prove fraud or undue influence in its execution. Under the principle then settled, this proof clearly falls, and in our opinion was admissible.

3. We are, however, clearly of opinion that the court below erred in rejecting the evidence of the declarations of the testator made before the execution of the will, that he intended to disinherit his daughters, as offered in proof by the witnesses, Whitson and Caleb Willingham. Now it is said that undue influence, such as will avoid a will, must be an influence obtained by flattery, excessive importunity, or threats, or in some other mode by which dominion is acquired over the will of the

testator, destroying his free agency, and constraining him to do against his free will what he is unable to refuse: 2 Greenl. Ev. 648, sec. 688, and authorities cited. The will before us conforms substantially to the declarations attempted to be proved. It gives to the daughters only a small, we might say a nominal, sum. This proof conduced to establish that the testator, many years previous to the execution of the will in controversy, had a fixed and settled purpose to make a will similar to the one he is alleged to have executed. It was then proper, as rebutting the evidence on the part of the contestants, that the will was not the deliberate act of the deceased, but was obtained fraudulently or by the over-persuasion of his wife or others. It tends to show that the provisions in the will which exclude the daughters were not the result of any suggestion made at or near the time when the will was drafted, but that some ten years anterior thereto the testator declared his intention then to disinherit his daughters, which intention was repeated five years afterwards. This proof should have gone to the jury to be weighed by them in determining whether in fact the will in question was procured fraudulently, or by the exercise of improper influence, or was made by the deceased in the exercise of a free volition and in accordance with his intention entertained at a period when we must presume he was less under the imbecility of mind and body resulting from the decrepitude of old age.

The other points raised in argument and upon the briefs, are fully covered by the previous decision of the case, supra, and do not require here to be again noticed. Our conclusion is, that the court below mistook the law in the matter of excluding the testimony of the testator's declarations, as above set forth. Its judgment is consequently reversed and the cause remanded.

DECLARATIONS OF TESTATOR TO IMPEACH OR INVALIDATE HIS WILL.-The doctrine of the principal case, that declarations of a testator, made a short time before the execution of his will, are admissible evidence to prove fraud or undue influence in its procurement, and also announced when the case was before the same court, at an earlier date, Roberts, Ex'r, v. Trawick, 13 Ala. 68, is not sustained by the authorities. How far declarations of a testator are admissible as tending to prove fraud, or to affect the construction and validity of a will, can not fail to be an important question. In Provis v. Reed, 5 Bing. 435, Best, C. J., said: "It has been insisted that declarations of the testator were admissible in evidence to show that the will he had executed was not valid, but no cases have been cited in support of such a proposition, and we shall not for the first time establish a doctrine that would render useless the precaution of making a will." Declarations by a testator a few hours

before his death, that he had executed his will through duress and fear of being murdered, are inadmissible: Jackson v. Kniffen, 2 Johns. 31; S. C., 3 Am. Dec. 390; and evidence that the deceased had in his life-time often declared his ignorance of the existence of a will executed by him was held equally inadmissible by the court, after an exhaustive review of the authorities, in Boylan v. Meeker, 4 Dutch. 274; and the court, per Rogers, J., in McTaggart v. Thompson, 14 Pa. St. 149, said: "The court appear to have excluded the testimony because they chose to suppose it was designed to prove duress, for which purpose it was clearly inadmissible." Selden, J., in Waterman v. Whitney, 1 Kern. 157, says: "These cases must be sufficient to establish the position that declarations of a testator, made either before or after the execution of a will, are not competent evidence to impeach its validity on the ground of fraud, duress, imposition, or other like cause" (after citing Jackson v. Kniffen, supra; Smith v. Fenner, 1 Gall. 170; Stevens v. Vancleve, 4 Wash. C. C. 262; Mortz v. Brough, 16 Serg. & R. 403; Comstock v. Had lyme, 8 Conn. 254; S. C., 20 Am. Dec. 100; and Provis v. Reed, supra). This doctrine is distinctly affirmed in Robinson v. Hutchinson, 26 Vt. 451; Richardson v. Richardson, 35 Id. 238; Shailer v. Bumstead, 99 Mass. 112; Runkle v. Gates, 11 Ind. 95; Hayes v. West, 37 Id. 21; Cudney v. Cudney, 68 N. Y. 148; Todd v. Fenton, 66 Ind. 25; Thompson v. Updegraff, 3 W. Va. 629. The reasons upon which such evidence is held inadmissible, and for which it is almost invariably rejected, are that it is purely hearsay; that the declarations are purely hearsay, that they were made by a person who has since died, and that he can not now contradict or explain them; and if the testator was of sound and disposing mind at the time he executed his will, his subsequent parol declarations should not be sufficient to revoke an instrument, which revocation the statute says must be in writing; also that subsequent statements of ignorance of the contents of a will may result from forgetfulness or from motives of policy, by which the deceased wishes to avoid the importunities of possible legatees. "The experience of every one must satisfy him that an inquiry made of a testator as to the contents of his will rarely elicits the truth:" Boylan v. Meeker; Waterman v. Whitney; Shailer v. Bumstead; Comstock v. Hadlyme; Smith v. Fenner; Mortz v. Brough, all supra.

DECLARATIONS ADMISSIBLE TO SHOW THE STATE OF MIND OF TESTA. TOR.-That declarations tending to show the state of mind of testator are admissible, is unanimously agreed by the authorities, for, says Selden, J.: "The difference is certainly very obvious between receiving the declarations of a testator to prove a distinct external fact, such as duress or fraud, for instance; and as evidence of the mental condition of the testator, the latter is the most direct and appropriate species of evidence:" Waterman v. Whitney, 1 Kern. 157; Boylan v. Mecker, 4 Dutch. 279; Mortz v. Brough, 16 Serg. & R. 403; Robinson v. Hutchinson, 26 Vt. 38; McTaggart v. Thompson, 14 Pa. St. 149; Cudney v. Cudney, 68 N. Y. 148; Baubien v. Cicotte, 12 Mich. 459; Colvin v. Warford, 20 Md. 389; Thompson v. Updegraff, 3 W. Va. 629. And it matters not whether such declarations were made before or after the execution of the will: Waterman v. Whitney, supra, and cases cited; also McTaggart v. Thompson, supra. As the object of such evidence is to arrive at an understanding of the condition of the mind of the testator at the date of the execution of his will, it must, however remote, have a legitimate bearing upon that subject or question: Id.; Shailer v. Bumstead, 99 Mass. 120. Such declarations need not be true. They are not received in evidence as proof of the facts stated, but to show what manner of man it is who makes them.

If those declarations indicate a state of mind which is not in itself

transient, upon the principle that a condition of mind once shown to exist is presumed to continue till the contrary is shown, they are admissible even if made prior to the time of the act of execution: Shailer v. Bumstead, supra. In McTaggart v. Thompson, supra, declarations by the testator "that he had ruined his family, had been deceived and imposed upon by persons who had procured him to have his will made," and in Rambler v. Tryon, 7 Serg. & R. 94, "that his wife and father plagued him to go to Lebanon, that they wanted him to give her all or he would have no rest, that he did not want to go to Lebanon," were admitted in evidence to show the weakness of mind of the declarants; and declarations by the testator that "I have done something that I ought not to have done, I have made my will, but have not made it as I wanted to," etc., together with conduct on the part of the declarant tending to show his sincerity and uneasiness, was admitted in Dennis v. Weeks, 51 Ga. 24, for the same reason. Such declarations must be strictly confined to proof of weakness of mind at the time of making the will, and not to proof of the facts stated, viz., that such influence or importunity was exercised: Robinson v. Hutchinson, 26 Vt. 38; Todd v. Fenton, 66 Ind. 25; Pratte v. Coffman, 33 Mo. 71.

THE PRINCIPAL CASE IS CITED to the point that the rule is not so stringent as to require that proof of undue influence should be confined to the time of the execution of the will, in Bunyard and Wife v. McElroy, Ex'r, 21 Ala. 316.

EDMUNDSON V. THE STATE.

[17 ALABAMA, 179.]

MISSPELLING PROPER NAME IN INDICTMENT, where the pronunciation is but slightly affected, is not sufficient ground for a plea in abatement. IMPROPER INSERTION OF MIDDLE NAME OR LETTER in indictment is immaterial, and may be disregarded.

THE opinion states the facts.
E. J. Jones, for the plaintiff.

Attorney general, for the state.

By Court, CHILTON, J. The plaintiff in error was indicted by the name of Isaac L. Edmindson, for an assault and battery upon one Nathaniel Hancock. He pleaded in abatement that his true name was Isaac Edmundson. A demurrer was sustained to his plea; after which, by leave, he pleaded not guilty, and thereupon came a jury, who found the issue against him, and assessed his fine at one cent, for which the court rendered judg ment. It is insisted that this judgment is erroneous, because1. The names Edmindson and Edmundson are not idem sonans. The counsel for the plaintiff has referred us to a number of cases, which will be found on his brief, where courts have considered slight departures from the true name as good ground to abate