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$ 552. Suspicious Circumstances: Beneficiary Directing Exe

cution of Will.

a

The mere fact that the party, whether attorney or not, who prepared the will of a testator, was himself a legatee, does not in itself create a presumption of undue influence so as to call upon the court to reject the will unless additional evidence is produced to prove the knowledge of its contents by the deceased. It is, however, a suspicious circumstance and is entitled to more or less weight, according to the facts of each particular case.To Thus if the interest of the beneficiary is small in proportion to the whole estate, and the testator is strong physically and mentally, an inference of undue influence could not be so strongly drawn as where the testator is mentally feeble and the beneficiary takes a considerable portion of the estate, to the exclusion of the heirs.71

Where a will is drawn at the request and direction of a sole beneficiary who was active in procuring and superintending its execution, some authorities hold that the circumstances are sufficient to raise a presumption of undue influence so as to cast upon the proponent the burden of showing that the will was voluntarily executed; but the better rule is that the burden of proof does not

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legitimate functions, and work for
their own advantage, how much
more ought it to deal sternly with
unlawful relations, where they
are, in their nature, relations of
influence over the kind of act
which is under investigation.”

70 Barry v. Butlin, 1 Curt. Ecc.
637; Snodgrass v. Smith, 42 Colo.
60, 15 Ann, Cas. 548, 94 Pac. 312;
Rusling v. Rusling, 36 N. J. Eg.
603; Gidney v. Chappell, 26 Okla.

737, 110 Pac. 1099, 1105; Goodloe v. Goodloe, 47 Tex, Civ. App. 493, 105 S. W. 533; Montague v. Allan's Exr., 78 Va. 592, 49 Am. Rep. 384.

Compare: Estate of Byrne, My. rick's Prob. (Cal.) 1.

71 Council v. Mayhew, 172 Ala. 295, 55 So. 314; Snodgrass V. Smith, 42 Colo. 60, 15 Ann. Cas. 548, 94 Pac. 312; Drake's Appeal, 45 Conn. 9; Kelty V. Burgess, 84 Kan. 678, 115 Pac. 583.

shift. Such wills, however, are not looked upon with favor, and cast a suspicion which should appeal to the vigilance of the court. All attendant circumstances should be carefully scrutinized, and in some instances they may be sufficient to exclude the will unless the suspicion be removed, and the court be judicially satisfied that the instrument is the true will of the deceased. 12

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72 Delafield v. Parish, 25 N. Y. 9; In re Everett's Will, 153 N. C. 83, 68 S. E. 924; In re Miller's Estate, 31 Utah 415, 88 Pac. 338, 342. See $$ 397, 398.

Where the proponent accompa. nied the testatrix to the attorney's office within the hearing of, and in a position so that he could see, the parties in the execution of the said will, and departed from said office with the testatrix, this cir

cumstance was held to be perti. • nent and of probative force, and

to be properly considered in connection with other circumstances on the question of undue influ. ence. In re Olson's Estate, 19 Cal. App. 379, 126 Pac. 171, 175.

Where the favored daughter of the testatrix went to the office of the lawyer with the testatrix, who then made the will “while the daughter remained in another room," such fact was given sig. nificance. Estate of Snowball, 157 Cal. 301, 307, 107 Pac. 598.

If there is evidence tending to show that the testatrix knew the contents of her will and was free from undue influence, the controverted questions of fact should be submitted to the jury under proper

instructions, and it is error for the court to direct a verdict for the contestant. Snodgrass v. Smith, 42 Colo. 60, 15 Ann. Cas, 648, 94 Pac. 312.

Where defendant, a beneficiary under the will to the extent of probably $3000, or more, drew the will when he and his mother alone were present, in his own home, and at a time when there was a fiduciary relation existing between him and the deceased, and when he had been managing her business and acting as her agent, the circumstances were held to be such that a presumption arose against such beneficiary that required an explanation, and under the circumstances it was held to be a question for the jury as to whether any explanation which might be offered was sufficient.Squires v. Cook, (Iowa) 157 N. W. 253, 256.

"The beneficiary gave the instructions for the will, directed its terms, and it was drawn at her request, and, in judgment of law, It must be regarded as written by herself. We perceive no difference as to whether she herself wrote the will, or as to whether it

73

$ 593. Influence, Although Combined With Opportunity and

Motive, Does Not Render Will Void. The general rule is that undue influence must be proved and can not be assumed ;78 and certainly until some suspicious circumstances be shown, the burden of proof is upon the side seeking to establish undue influence.74 Mere possession of influence and the opportunity and motive to exercise it are not sufficient; it must appear either directly or by justifiable inference from the facts proved that the influence was exercised so as to destroy the free agency of the testator and control the disposition of the property under the will. Unless the influence of the beneficiary be unduly exercised, it is not material was written by another at her re- to the dictation or desires of the quest and under her direction. testatrix, and it was not fully ex... A will made under such plained to her, or that she did circumstances ought to appeal to not understand it as it was read the vigilance of the court and to her in English, this would be open a broad field of inquiry."- sufficient to set the will aside. We In re Miller's Estate, 31 Utah 415, are satisfied, therefore, that the 88 Pac. 338, 342.

court should have allowed the full"In this case it was shown con- est investigation into the facts clusively, we think, that the tes- surrounding the drafting of the intatrix did not understand the Eng- strument, and if they were unexlish language sufficiently to carry plained and not shown to have on an ordinary conversation, and been thoroughly understood by it is clearly shown that she did the testatrix, the will was clearly not understand enough of the Eng- not her will."-In re Beck's Eslish language to comprehend the tate, 79 Wash. 331, 140 Pac. 340, terms of the will, which was read 342. to her in the English language. It 73 Beekman v. Beekman, 2 Demseems plain, therefore, that if it arest (N. Y.) 635; In re Martin, can be shown that the will was 98 N. Y. 193. procured by the principal bene- 74 Webber v. Sullivan, 58 Iowa ficiaries, who stated to the scriv. 260, 12 N. W. 319. ezer the terms of the will, and Compare: Delafield v. Parish, it was then drawn according to 25 N. Y. 9, 34. their dictation and not according

that he was interested in the will or had better opportunity for solicitation or persuasion than the contes8 594. Confidential Relationship Between Testator and Bene

tants.75

.

75 Boyse v. Rossborough, 6 H. La Cas. 2, 49; Parfitt V. Lawless, L. R. 2 P. & D. 462; Estate of Black, 132 Cal. 392, 395, 64 Pac. 695; Estate of Weber, 15 Cal. App. 224, 114 Pac. 597, 603; Estate of Dolbeer, 153 Cal. 652, 15 Ann, Cas. 207, 96 Pac. 266; Davis v. Calvert, 5 Gill & J. (Md.) 269, 25 Am. Dec. 282; Fothergill v. Fothergill, 129 Iowa 93, 105 N. W. 377; In re Dobals' Estate, (Iowa) 157 N. W. 169, 170; Mitchell v. Mitchell, 43 Minn. 73, 44 N. W. 885; In re Hess' Will, 48 Minn, 504, 31 Am. St. Rep. 665, 51 N. W. 614; Turnure v. Turnure, 35 N. J. Eq. 437; Schuch. hardt v. Schuchhardt, 62 N. J. Eq. 710, 49 Atl. 485; In re Eatley's Will, 82 N. J. Eq. 591, 89 Atl. 776, 780; Seguine v. Seguine, 3 Keyes (42 N. Y.) 663, 669, 4 Abb. Dec. 191, 35 How. Pr. 336; Matter of Gihon, 44 App. Div. 621, 60 N. Y. Supp. 65; In re Campbell's Will, 136 N. Y. Supp. 1086, 1105; Cudney v, Cudney, 68 N. Y. 148, 149; Matter of Mondorf, 110 N. Y. 450, 456, 18 N. E. 256; Snedeker V. Rulong, 69 W. Va, 223, 71 S. E. 180.

Although the evidence shows that the respondents had the opportunity to exercise undue in. fluence upon the testatrix in the matter of the making of this will, and might have done so if they had been so disposed, and had

possessed such influence, it is not sufficient. The undue influence must actually exist, it must be actually exerted, and it must be 80 exerted as to affect the terms of the will.-In re Purcell's Estate, 164 Cal. 300, 128 Pac. 932, 934.

Evidence of an opportunity for exercising undue influence on & testatrix, and the circumstance that her will makes her preceptress and friend, instead of her relatives, the principal beneficiary, are insufficient to support a charge of undue influence, the will not being under the circumstances an unnatural one.-Estate of Dolbeer, 153 Cal. 652, 15 Ann, Cas, 207, 96 Pac. 266.

Upon the issue of undue influence, there being some evidence that the wife had sought to keep certain friends from communi. cating with her husband, and that she had expressed a fear that he might be induced to make some change in his papers, it amounted to nothing beyond the interest and possible opportunity of the wife to sway her husband's mind. Much more is needed to make out a case of undue influence. Proof must be had of a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made.-In re Carithers' Estate, 156 Cal. 422, 105 Pac. 127, 130; Estate of Nel.

ficiary: Parent and Child.

There is no reason why a testator may not make disposition of his estate in favor of one occupying a fiduciary relationship toward him if his will does not contravene any of the limitations prescribed by law, and he is not defrauded or unduly influenced. Warm personal friendship and business dealings do not establish fiduciary relationship.78 The mere fact that a legatee, who may also be named as executrix of a will, is the cousin and friend as well as the nurse and business partner of the testatrix, has been said not to create a fiduciary relationship.77

When the relationship of parent and child exists, more must be shown by the contestants than the mere opportunity for unfair dealing.78 The effect of a confidential relationship between testator and legatee, as suggestive of undue influence, is materially different where the legatee is a child, not a stranger, for in the former case the relationship of confidence and of participation in the testator's estate is natural. 79

son, 132 Cal. 182, 64 Pac. 294; Estate of Calef, 139 Cal. 673, 73 Pac. 539; Estate of Black, 132 Cal. 392, 64 Pac. 695; Estate of Donovan, 140 Cal. 390, 73 Pac. 1081.

The fact that the testator on his death-bed was surrounded by beneficiaries in his will does not furnish any presumption of undue influence.-Bundy v. McKnight, 48 Ind. 502.

The presence of legatees and devisees at the death bed of the testator will not raise the pre

sumption of undue influence. Craven's Will, 169 N. C. 561, 86 S. E. 587.

76 In re Carey's Estate, 56 Colo. 77, Ann, Cas. 1915B, 951, 51 L. R. A. (N. S.) 927, 136 Pac. 1175, 1179.

77 Snodgrass v. Smith, 42 Colo. 60, 15 Ann. Cas. 548, 94 Pac. 312.

78 In re Martin, 98 N, Y. 193.

79 Lockwood v. Lockwood, 80 Conn. 513, 69 Atl. 8; Appeal of Fitzpatrick, 87 Conn. 579, 89 Atl. 92, 94.

II Com. on Wills-3

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