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to make a will. One of them, who is a contestant, stated as his opinion that he did not think a man could be a sane man who used blasphemous language towards Jesus Christ. Another, who visited him as a physician once or twice, expressed the opinion that he did not think a person who used morphine and whiskey as decedent did was capable of taking into consideration his property and relations, and making a fair, just, and equitable disposition of his property, though he does not undertake to say what quantity of either he was in the habit of using, nor what his mental condition actually was when the paper was written, nor when it was two days afterwards, signed and acknowledged. And the third, who once saw him while in a paroxysm of pain, testified his professional opinion to be that no man who had been an invalid for a number of years, and under influence of morphine for such a length of time, is competent to transact business. But neither one of those three witnesses, nor any one else throughout the entire trial, testifies to a single irrational act or speech by the decedent, or even profane language when he was not, for a time, racked with pain, with the single exception of J. B. Lisle, the principal contestant, who refers to one trivial remark about which it was shown by another witness he evidently misunderstood the decedent. On the contrary, those acquainted with him testified he possessed a clear, vigorous intellect and strong will, which continued, when he was not in a sleepy state from use of morphine, up to his death; and it clearly and fully appears that from the time he went to the house of Robert E. Bush to the date of the paper, and even afterwards, he transacted business, loaning money, buying land, keeping account of interest and dividends on stock due him, was consulted by his friends about business matters, discussed politics, banking, and neighborhood affairs with perfect intelligence, and kept full control of his estate, so that when he died there had not been any of his income wasted or disposed of at all, except with his consent and full knowledge.

It seems to us, as the record stands, there is a total failure by the contestants to show lack of mental capacity on the part of the decedent to make a will, and, in our opinion, evidence of undue influence by the devisees, or of any other person, is

equally unsatisfactory, and the verdict of the jury can be accounted for only on the supposition that their attention was diverted from facts proved, to abstract theories of physicians who never examined nor had knowledge of the actual mental condition of decedent when the paper was executed. It is needless to refer in detail to the testimony of the learned experts, because there was such an agreement in their statements as to make reference to the evidence of one suffice for all. The general conclusion drawn from the hypothetical case assumed by them is that the brain of a person in the condition the decedent was shown to be in, if confined in the same family eight or nine years, taking morphine habitually three or four times per day, administered by members of that family, would have no capacity to make a will or do anything which he believed would be contrary to the wishes of such family, and would seek by every means to please them, although he at the same time might talk intelligently, and impress an ordinary observer as being exceedingly bright. It seems, however, to be conceded by the experts, that the use of morphine does not necessarily impair the intellectual faculties, and consequently their evidence, if pertinent in this case at all, has relation alone to the question of undue influence. Expert testimony is worse than useless, it is misleading when given on a subject about which there is proof so convincing as to leave no reasonable ground for dispute, or when variant from the actual state or condition shown by positive evidence to exist, and no conclusion reached by a mere theorist, however learned, can be reasonably accepted and applied in any case without being founded on and consistent with the facts as they are proved to be. If there had been doubt or contrariety of evidence in regard to the real state of the decedent's intellectual faculties, it might have been pertinent to show by experts what are the usual consequences of physical infirmities and habits such as his. But it does not appear that his mind was impaired or affected by the disease he was afflicted with, nor that he was dependent upon Robert E. Bush or any of his family for morphine, nor was their aid in procuring it, or permission to use it, ever sought by him. On the contrary, he had an estate sufficient to gratify every wish and supply every want, the character and value of which he well

knew, and the management and control of which he kept without dispute or question till his death, and the morphine used by him was purchased with his own means and at his own pleasure, without hindrance or protest from any one. And, whatever may be the ordinary effect of use of morphine, the evidence in this case does not show any weakening of the will power of the decedent, nor the slightest effort on the part of any one of his devisees or other person to influence or control, by coercion, argument, or persuasion, the final disposition of his estate, nor that he was influenced to dispose of it as he did by any other reason, motive, or feeling than gratitude to and affection for Mrs. Bush, who was his favorite sister, as shown by two previous wills, in one of which he gave his estate to her and a brother since dead, and in the other the bulk of it to her and by the significant fact that, when he became a helpless and doomed invalid, he selected her, of all others, to nurse and care for him.

There is some evidence tending to show her anxiety about the manner in which he would dispose of his property, but none that she or any one else attempted to influence him in regard thereto by importunity, persuasion, or even suggestion. In two instances she interfered to prevent gifts by him to other persons, one of them being a drunken man, and the other a lewd woman, his former mistress, to whom he had previously given money, and who was endeavoring to obtain more. It also appears that he was unwilling for his sister to leave him, and some of the witnesses quote her as saying he displayed weakness by shedding tears when she did go away from home, leaving him to the care of others. But there is no evidence showing, or from which it can reasonably be inferred, that any of the devisees acquired such dominion or influence over him as deprived him of the power to dispose of his estate in accordance with his own wishes; and in view of the claims of other relations, and without the existence and actual exercise of such dominion, as has often been held by this court, he must be regarded as executing the will without undue influence; for neither mere appeals to the affections, nor arguments addressed to the understanding, even when effective, amount to undue influence, in the meaning of the law. There was, however, ac

cording to other evidence, no other influence exerted or appeal made by the devisees than such as affectionate care and attention offered, which the law upholds rather than condemns. In our opinion, the evidence in this case shows clearly that F. M. Lisle had testamentary capacity, and freely and without undue influence executed the paper in contest, and it should be held his true last will and testament. Wherefore the judgment must be reversed, and, as the verdict is not sustained by the evidence, the cause is remanded, with directions to the lower court to dismiss the appeal from the order of the county court, probating and admitting to record the paper as his will.

GARDNER v. FRIEZE ET AL.

16 R. I. 640. 1889.

DURFEE, C. J. This is an appeal from a decree of the municipal court of the city of Providence, admitting to probate the will of Phoebe L. Gardner. The will was executed August 3, A. D. 1886, when the testatrix was somewhat over eighty years old. It gives the larger part of her property to three daughters, and gives to her son, Walter S. Gardner, the appellant, only a trifling legacy. The reasons of appeal alleged are that the will was procured by fraud, deceit, and undue influence. On trial in this court the probate was opposed on those grounds. In support of the will the court admitted, subject to exception, testi. mony to the following effect, to wit: That the testatrix had told her counsel, before the will was executed, that her said son annoyed her by his importunities for money; that he had to pay her money due to her for a dower right, and had several times importuned her to forgive the payments; that he had had his share from his father's estate, and she would give him nothing; that she made these statements at different times during a number of years before the will was made, said counsel having drawn one or more earlier wills; that she made similar statements to the counsel's partner, and also said to him that she always intended to give her property to her daughters, said

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statement having been made to said partner some years before the will in controversy was executed. The jury returned a verdict sustaining the will. The case is before us for alleged error committed by admitting said testimony.

We do not think the court erred in admitting it. Judge Redfield, in his treatise on the Law of Wills, says: "It is everyday practice, where probate is resisted on the ground of fraud, undue influence, or surprise, to admit the declarations of the testator previously made as to his testamentary intentions; and that, when the will corresponds to the declarations, it excites much less apprehension of improper practices than when it differs from them." 1 Redf. Wills, 567, 568. Such, so far as we know, has been the practice in this State. [The weight of the evidence offered on this point is, of course, another question, arising anew in each case. Kane v. Brown (R. I.), 20 Atl. R. 10.] It seems to us that no evidence can be more legitimate in disproof of fraud or undue influence, especially if the declarations have been repeated from time to time during a period of years before the making of the will and down to the making. The practice is well supported by authority. In Neel v. Potter, 40 Pa. St. 483, the will gave the testator's real estate to his brother, Samuel Neel, and his nephew, James Neel. It was contested on the ground of alleged undue influence by members of the family of the devisees. Evidence was admitted on the part of the devisees that the testator had declared at intervals during a period of many years, that he intended to leave his farm "in the name of Neel." The evidence was decided by the Supreme Court of Pennsylvania to have been rightly admitted. The court said: "It would strongly rebut the idea of any such influence on the mind of the testator when making his will, if it were shown that he made it in accordance with a longcherished purpose." See, also, Starrett v. Douglass, 2 Yates 46, 51; Irish v. Smith, 8 Serg. & R. 573. In Roberts v. Trawick, 17 Ala. 55, the will was impeached for fraud or undue influence, and the court held that declarations made by the testator ten years and repeated by him five years before its execution, going to show a fixed and settled purpose to make such a will, were admissible in evidence to rebut the charge of fraud or over-persuasion. And in Pancoast v. Graham, 15 N. J. Eq. 294,

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