is all summarized and reduced to its final results it only proves that Crumbaugli was a believer in Spiritualism; that he thought that he was doing a philanthropic work for his friends in Leroy by leaving this estate to establish this [Spiritualist] church and library; and, however much one may differ from him as to the advisability of such a devise that has nothing to do with the legal status of the will. If the testator had the capacity to make the will, he had the capacity to select the beneficiaries. This he has done, and there the matter must rest.

The court erred in refusing to direct a verdict for proponents, for which the decree must be reversed, which is accordingly done, and the cause remanded to the circuit court, for further proceedings not inconsistent with the views herein expressed. Reversed and remanded.1

13 "The testator's belief in Spiritualism was not a morbid fancy, rising spontaneously in his mind, but a conviction produced by evidence. The proofs show that, when he first commenced attending what are called 'seances,' he was inclined to be skeptical; afterwards his mind seemed to be in an unstable condition-he sometimes believed and at others doubted-and that it was not until the spirits gave an extraordinary exhibition of their power, by printing or painting on a pin, worn by his mother-in-law on her neck, in brilliant letters, which sparkled like diamonds, the word 'Dickie,' a pet name of his dead wife, that his last doubts as to the reality of the manifestations were removed. Believing, as I do, that these manifestations were correctly described by Vice Chancellor Giffard in Lyon v. Home, L. R. 6 Eq. 655, 682, when he called them 'mischievous nonsense, well calculated, on the one hand, to delude the vain, the weak, the foolish, and the superstitious, and, on the other, to assist the projects of the needy and of the adventurer,' still it seems to me to be entirely clear that it cannot be said that a person who does believe in their reality is, because of such belief, of unsound mind, or subject to an insane delusion. No court has as yet so held." The Vice Ordinary, in Middleditch v. Williams, 45 N. J. Eq. 726, 735, 17 Atl. 826, 4 L. R. A. 738 (1889).

"It does not follow, however, that one may not have such a faith in spiritualism as to destroy his testamentary capacity. He may think so continually and persistently upon this subject, as upon many other subjects, as to become a monomaniac, incapable of reasoning, where this subject is concerned. In that case it should be said that a will made in consequence of such monomania is void for lack of testamentary capacity. Orchardson v. Cofield, 171 Ill. 14, 49 N. E. 197, 40 L. R. A. 256, 63 Am. St. Rep. 211 (1897). So, too, a believer in Spiritualism may have such extraordinary confidence in Spiritualistic communications-whether those communications reach him through mediums or are received by him as he believes directly-that he is impelled to follow them blindly and implicitly, his free agency is destroyed, and he is constrained to do against his will what he is unable to resist. A will made under such circumstances is obviously not the will of testator, and is therefore not admissible to probate. We need not speculate as to the ground upon which this conclusion rests. It is utterly unimportant whether it rests upon the ground of absence of testamentary capacity, or, as held by the trial court, upon the ground of undue influence." Carpenter, C. J., in O'Dell v. Goff, 149 Mich. 152, 158, 112 N. W. 736, 738, 10 L. R. A. (N. S.) 989, 119 Am. St. Rep. 662 (1907). On the undue influence of Spiritualism, see 63 Am. St. Rep. 93, 94, note. For a discussion of testamentary capacity as affected by belief in spiritualism, see 10 Am. & Eng. Ann. Cas. 617, note; 5 Prob. Rep. Ann. 226, note; 8 Prob. Rep. Ann. 455, note; 13 Prob. Rep. Ann. 68, note; 16 L. R. A. 677, note; 15 L. R. A. (N. S.) 674, note.

For the effect on testamentary capacity of a belief in metempsychosis, see Bonard's Will, 16 Abb. Prac. (N. S.) 128 (1872); in Swedenborgianism, see Scott v. Scott, 212 III. 597, 72 N. E. 708 (1904); in faith cure, see Taylor v. Trich, 165 Pa. 586, 30 Atl. 1053, 44 Am. St. Rep. 679 (1895); in Christian Science, see

(High Court of Chancery, 1866. L. R. 2 Eq. 319.)

William Thompson, who died in July, 1864, by his will dated the 20th of May, 1864, devised and bequeathed all his real and personal estate to the plaintiff and the defendant Joughin, whom he also appointed executors, upon trust "to permit my wife, Adelaide, to receive. from my death the net annual income thereof during her life." And after her death the testator directed his trustees to sell his real estate, and to convert and get in his personal estate, and to invest the moneys to arise in trust for the benefit of his children; but if no child of his should attain the age of twenty-one, or be married, then upon trust to pay certain legacies; and as to the residue, "In trust for my stepdaughter, Sarah Ward, for her absolute use. But in

In re Brush's Will, 35 Misc. Rep. 689, 72 N. Y. Supp. 421 (1901); in Spiritualism and Christian Science, see Trubey v. Richardson, 224 Ill. 136, 79 N. E 592 (1906).

For discussions of mental capacity in general, see 5 Prob. Rep. Ann. 382, note; Id., 224, note; 2 Prob. Rep. Ann. 352, note; 63 Am. St. Rep. 94-99, note. On aversion to relatives as affecting mental capacity to make a valid will, see 117 Am. St. Rep. 582, note. And see Fulton v. Freeland, 219 Mo. 494, 118 S. W. 12 (1909). On suicide as evidence of testamentary incapacity, see 24 L. R. A. 577, note: 4 Wigmore on Evidence, § 2500. On drunkenness and morphinism as affecting testamentary capacity, see 39 L. R. A. 220, note; Id., 262, note; 6 Prob. Rep. Ann. 200, note; 2 Am. Prob. Rep. 526, note. On monomania as affecting testamentary capacity, see 1 Prob. Rep. Ann. 377, note. See, also, Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405 (1908).

14 "Lord Cranworth appears ** * * to have regarded fraud as a species of undue influence. It is a mere question of terms; but by the rules of pleading established in this court since December, 1865, fraud, which includes, misrepresentation, is the subject of a separate plea, and undue influence as a term used in a plea in this court raises the question of coercion, and that only." Lord Penzance in Parfitt v. Lawless, L. R. 2 P. & D. 462, 470, 471 (1872). "In strictness, 'undue influence' and 'fraud' are distinguishable. In one case the mind of the testator is so overmastered that another will is substituted for his own. In the other he is in a sense a free agent, but is deceived into acting upon false data [citations]. But more often than otherwise it is a mere question of terms. Something sinister is involved, which perverts the testator's will by overcoming his power truly to express his real desires." Burch, J, in Ginter v. Ginter, 79 Kan. 721, 735, 736, 101 Pac. 634, 640, 22 L. R. A. (N. S.) 1024 (1909). See, also, In re Snowball's Estate (Cal.) 107 Pac. 598 (1910). "There is no doubt that undue influence may be exerted upon a testator, either by fraudulent means or devices or by physical or moral coercion practiced upon him without any actual deception." Sheldon, J., in Whitcomb v. Whitcomb (Mass.) 91 N. E. 210 (1910).

For discussions of undue influence as affecting the validity of wills, see 21 Am. St. Rep. 94, note; 31 Am. St. Rep. 670, note; 6 Prob. Rep. Ann. 300, note; 5 Am. Prob. Rep. 589, note. On the admissibility of declarations of testator, not made at the time of the execution of the will, on questions of undue influence, see notes in 5 Am. & Eng. Ann. Cas. 608, and in 10 Am. & Eng. Ann. Cas

48

case she shall die without leaving issue, upon trust to pay the same moneys to John Wilkinson and my cousin, Anne Hammond, in equal shares. I direct that my wife shall out of the income of my said estate maintain, educate, and bring up my children until the age of twentyone years (but my trustee shall not be obliged to see this direction fulfilled), and that she shall receive and enjoy such income as her separate estate, without the control or interference of any future husband, and her receipt to be, notwithstanding coverture, an effectual discharge for the same."

The testator left no issue him surviving. The bill alleged that on the 15th of October, 1849, Thomas Ward and Adelaide Ward (then Rowntree) were married at Great Grimsby, and that the defendant. Sarah Ward was a child of that marriage; and that on the 20th of May, 1863, the defendant Adelaide Ward and the testator went through the ceremony of marriage at Liverpool-the defendant Adelaide Ward having represented herself to the testator as, and he having believed her to be, a widow-the defendant Thomas Ward, her husband, being then, and in March, 1865, when the bill was filed, alive. The plaintiff submitted to the judgment of the court, whether the defendant Adelaide Ward, or the defendant Thomas Ward, her husband, in her right, could take any interest under the will; and also what interest (if any) the defendant Sarah Ward took under it; and prayed that the trusts might be performed by the court, and for a declaration as to the rights of all persons interested under the will, and for an account and inquiries. The evidence, in the view taken of it by the court, sustained the conclusion that the misrepresentation by Adelaide Ward was wilful. Sir JOHN STUART, V. C. In my opinion the bequest in favor of Adelaide Ward is void. She has sworn in her answer that which has been distinctly disproved. The evidence shows that she imposed in a gross manner upon the testator. Therefore, there must be a declaration to the effect that the bequest to Adelaide Ward, the pretended wife of the testator, is wholly void, and then there must be the usual decree for administration.

The right of the infant, Sarah Ward, seems to me very clear. An attempt has been made to show that inasmuch as the testator was defrauded by the woman whom he believed to be his wife, and was, through that fraud, induced to believe that her child was his stepdaughter, the bequest to her wholly fails. But in the case referred to of Kennell v. Abbott, 4 Ves. 802, Lord Alvanley took care to distinguish. between the cases of an innocent and a fraudulent legatee, and in my opinion there is no warrant for saying, where the testator knew this infant legatee personally, and intended to benefit her personally, that the language of the will is not a sufficient description. Sarah Ward therefore, is entitled under the will, but I have some difficulty in say. ing that she is absolutely entitled, as there is a gift over in case she shall die under twenty-one years of age, and without issue.

cf. to Howell v. Troutman:

Per Mellish, in Meluish v. Milton, 3 Ch D 27, 34,35 71876):

"Here it is said that the fraud was not committed for the purpose of obtaining the will. I cannot agree in this. Tho we term the conduct alleged in this case fraudulent concealment, it i equivalent to fraudulent misrepresentation. When the lady went thr the ceremony of marriage with the testator, she in effect represented to hi that she was capable of becoming his lawful wife, and every day while they were living together she must be taken as continumasly representing to him that she was his lawful wife. If at the same time she knew that her former husband was alive, this was what the court wou d take notice of as a fraudulent misrepresentation. For what purpose were these representations made? To obtain all the benefits of the position of the testator's lawful wife, and a testamentary provision in case she survives her husband, is one of the advantages which a wife most naturally expects. The misrepresentations must, therefore, be treated as made, among other things, for the purpose of obtaining a will in her favor, and it makes no difference whether this particular advantage was actually present to her mind or not.

case she shall die without leaving issue, upon trust to pay the same moneys to John Wilkinson and my cousin, Anne Hammond, in equal shares. I direct that my wife shall out of the income of my said estate maintain, educate, and bring up my children until the age of twentyone years (but my trustee shall not be obliged to see this direction fulfilled), and that she shall receive and enjoy such income as her separate estate, without the control or interference of any future husband, and her receipt to be, notwithstanding coverture, an effectual discharge for the same."

The testator left no issue him surviving. The bill alleged that on the 15th of October, 1849, Thomas Ward and Adelaide Ward (then Rowntree) were married at Great Grimsby, and that the defendant. Sarah Ward was a child of that marriage; and that on the 20th of May, 1863, the defendant Adelaide Ward and the testator went through the ceremony of marriage at Liverpool-the defendant Adelaide Ward having represented herself to the testator as, and he having believed her to be, a widow-the defendant Thomas Ward, her husband, being then, and in March, 1865, when the bill was filed, alive. The plaintiff submitted to the judgment of the court, whether the defendant Adelaide Ward, or the defendant Thomas Ward, her husband, in her right, could take any interest under the will; and also what interest (if any) the defendant Sarah Ward took under it; and prayed that the trusts might be performed by the court, and for a declaration as to the rights of all persons interested under the will, and for an account and inquiries. The evidence, in the view taken of it by the court, sustained the conclusion that the misrepresentation by Adelaide Ward was wilful.