with the making of the will, either by agency, procurement, suggestion, solicitation or knowledge of its execution." (Harp v. Parr, 168 Ill. 459.) So where a testator willed his property to the daughter of the person alleged to have wielded the undue influence, and contrary to the wishes and expectations of such party, the court held that no undue influence had existed, since the influence did not cause the making of the particular will in question.†

EVIDENCE.

Sec. 955. SAME SUBJECT While undue influence is usually divided into actual or direct, and presumptive or constructive undue influence, yet the evidence usually relied upon to prove undue influence is generally circumstantial in its character. And a wide range is allowed to set before the jury all the circumstances attending the case.*

The declarations of the testator made within a reasonable time before the execution of his will, are admissible for the purpose of showing his mental condition and his exposure to undue influence. Thus his declarations at the time of the execution of the will stating how he meant to dispose of his property are admissible. v. Parr, 168 Ill. 45.)

(Harp

But his declarations made after the will has been executed are not usually admissible, unless they are near

Hampton v. Westcott, 49 N. J. Eq. 522; Harp v. Parr, 168

Ill. 459; In re Will's Est., 7 Minn. 335.

*Storer's Will, 28 Minn. 91. The question of undue influence is particularly one for the jury to determine. Caves v. Agnew, 186 Pa. St. 314.

enough in point of time to form part of the res gestae; or unless they tend to show a continuance of the conditions existing when the will was made.†

Such declarations, unless a part of the res gestae "have no weight unless introduced in connection with evidence tending to prove undue influence, mental incompetency or fraud at the time of the testamentary act." (In re Langford, 108 Cal. 608.)

The testator's declarations may also be shown by the beneficiary to rebut the idea of undue influence, by showing that the will was in accordance with previously expressed purposes. (Kaenders v. Montague, 180 Ill.

300.)

The admissions of a sole legatee, showing undue influence by him, are admissible against him, but they are not admissible, where he is not a party to the suit, or where other parties to the suit were jointly interested with him. And such declarations being admitted upon the theory that they are against interest, must have been made after the execution of the will.*

Sec. 956. SAME SUBJECT-EFFECT OF UNDUE INFLUENCE.-"In determining a case involving undue influence, the question is not what effect the influence actually exerted would have had upon an

†Page on Wills, Sec. 423; Parsons v. Parsons, 66 Ia. 754; 27 Ia. 110; 122 Pa. St. 239; Moore v. Gubbins, 54 Ill. App. 163.

*Smith v. Henline, 174 Ill. 184; Potter's Will, 161 N. Y. 84; Livingstone's App., 63 Conn. 68; Thompson v. Thompson, 13 O. St. 356.

ordinarily strong and intelligent person, but what effect the influence actually exerted had upon the person on whom it was exerted, taking into consideration the time and place and all the surrounding circumstances."†

Where the whole will is affected by undue influence or fraud, it will fail as a whole. But if the fraud or undue influence affects only a part of the will, such part will fail and the rest of the will may stand.‡

†Page on Wills, Sec. 126, citing Henry v. Hall, 106 Ala. 84; Mooney v. Olsen, 22 Kan. 69, and others.

Rivard v. Rivard, 109 Mich. 98; Knox v. Knox, 95 Ala. 495; Allen v. McPherson, 1 H. L. Cas. 191; Randolph v. Lampkin, 90 Ky. 551; s. c. 10 L. R. A. 87; Morris v. Stokes, 21 Ga. 552.

CHAPTER V.

WHO MAY TAKE BY WILL.

Sec. 957. THE GENERAL RULE.-As a general rule, any person may take property by will, including married women, infants and insane persons, so long as the gift in itself is not injurious.

Sec. 958. EXCEPTIONS TO THE GENERAL RULE.-Some exceptions to this general rule which were made at common law, and which prevail to some extent under modern statutes, are now to be mentioned. These exceptions include:

Aliens. At common law aliens could take a perfect title to personal property under a testament, and such property was only liable to be confiscated by the state in case of the party becoming an alien enemy. And at common law an alien could take a valid title to real property under a will, but his title was subject to be defeated at any time by the government, or state in which he lived, taking possession of the same. In many of the states, statutes have done away with the common law disabilities imposed upon aliens, and where this has been done they are as free to take and hold property as citizens are. In a few states as Iowa, Illinois and New

*Harney v. Donohue, 97 Mo. 141; Craig v. Leslie, 3 Wheat. (U. S.) 563; Page on Wills, Sec. 150.

York, aliens are either forbidden to acquire real estate or are limited in the amount they may hold.*

Sec. 959. SAME SUBJECT CORPORATIONS.-Under the early English law a corporation might take real or personal property by will, but later under the Statute of Mortmain, and until the Statute of Wills of I. Vict, corporations could not take real property by devise. This Statute of Mortmain has never prevailed in this country except in Pennsylvania and South Carolina for a while, so that unless restrained by express provisions of the statutes, a corporation may take by will such real or personal property as it is authorized to hold in its charter.†

In the case of devises to foreign corporations, the power to take is usually governed by the law of the state where the land lies, though it is held that if in its home

*Opel v. Shoup, 100 Ia. 407; Furenes v. Severtson, 102 Ia. 322; Jele v. Lemberger, 163 Ill. 338; Schultze v. Schultze, 144 Ill. 290, s. c. 19 L. R. A. 90; McGillis v. McGillis, 154 N. Y. 532.

+McGraw's Est., 111 N. Y. 66; American Bible Soc. v. Marshall, 15 O. S. 537. In South Carolina a statute similar to the Statute of Mortmain was in effect until 1872. Am. Bible Soc. v. Noble, 11 Rich. Eq. (S. Car.) 156. In Maryland by a constitutional provision a religious corporation cannot take by devise unless the Legislature sanctions it. (Church v. Smith, 56 Md. 363.) In a few States, the statutes provide that a corporation cannot hold real estate in excess of a named sum, and under this rule a devise to such a corporation in excess of the specified amount will be invalid as to the excess. (Starkweather v. Amer. Bible Society, 72 Ill. 50; Wood v. Hammond, 16 R. I. 98.)