such a position as would enable him to form an absolutely Book II. free and unfettered judgment' (a).

(b) "The law regarding wills is very different from this. The natural influence of the parent or guardian over the child, or the husband over the wife, or the attorney over the client, may lawfully be exerted to obtain a will or legacy, so long as the testator thoroughly understands what he is doing, and is a free agent. There is nothing illegal in the parent or husband pressing his claims on a child or wife, and obtaining a recognition of those claims in a legacy, provided that that persuasion stop short of coercion, and that the volition of the testator, though biassed and impressed by the relation in which he stands to the legatee, is not overborne and subjected to the domination of another.

(c) "The influence which will set aside a will,' says Mr. Justice Williams, 'must amount to force and coercion destroying free agency; it must not be the influence of affection or attachment; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act; further, there must be proof that the act was obtained by this coercion; by importunity which could not be resisted; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear' (b). This difference, then, between the influence which is held to be undue in the case of transactions inter vivos, and that which is called undue in relation to a will or legacy, is all-important when a question arises of making presumptions or adjusting the burthen of proof. For it may be reasonable enough to presume that a person who had obtained a gift or contract to his own advantage and the

(a) Archer v. Hudson, 7 Beav. 551.

(b) 1 Williams Exors. Pt. 1, bk. 2, ch. 1, s. 2.

CHAP. IX.

Sect. II.

Sect. II.

BOOK II. detriment of another, by way of personal advice or perCHAP. IX. Suasion, has availed himself of the natural influence which his position gave him. And in casting upon him the burthen of exculpation, the law is only assuming that he has done so. But it is a very different thing to presume without a particle of proof, that a person so situated has abused his position by the exercise of dominion or the assertion of adverse control.

(d)" For these reasons, it seems to me that it would be improper and unjust to throw upon a man in the position of the plaintiff, without any proof that he had any hand whatever in the making of this will, the onus of proving negatively that he did not coerce the testatrix into devising the residue of her land to him. I say coerce, for this is the only matter involved in a plea to undue influence. Lord Cranworth appears, in the case above cited, to have regarded fraud as a species of undue influence. It is a mere question of terins; 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" (a).

BOOK THE THIRD.

OF THE

MAKING AND EXECUTION OF WILLS.

CHAPTER I.

OF THE MODE OF WRITING AND FORM OF A WILL.

1. Statute of Frauds required that will of real estate should be in writing. Wills of personal estate must also generally be in writing.

2. Printing, lithographing, &c., equivalent to writing.

3. Will may be written on any material or in any mode.

4. Pencil writings considered deliberative.

5. Will may be written in any language. Contractions may be used.

6. A paper propounded as a will must have a testamentary character. Form of a paper immaterial. Examples.

7. A document making a "free gift" held testamentary on parol evidence.

8. Examples of papers held to be testamentary.

n. (f) Mistake in a codicil as to date or place of deposit of will immaterial.

9. A paper may be a will, though not taking effect until some time after the testator's death.

10. Parol evidence admitted to prove or disprove testamentary character of a paper.

11. Example furnished by Lister v. Smith. Parol evidence must be cogent and conclusive.

12. Case of" In the goods of Poole."

13. Not necessary that testator should intend to perform a testamentary act.

14. Rule laid down by Sir E. V. Williams.

n. (e) Court will give effect to an instrument as a will if it cannot operate in the way in which testator intended it should operate.

15. Paper not a will if it takes effect immediately.

16. A will must be a disposition of property to take effect after

death.

17. Will may consist of several different papers or instruments.

Examples.

BOOK III.

СНАР І.

n. (b) When probate granted of several papers, the grant is to all the executors therein named.

18. Instructions may, in certain cases, be incorporated into the will.

19. No precise form of words necessary to a will. Examples of words creating trusts.

20. Courts indisposed to extend the rule creating trusts. Example.

21. General rule laid down by Lord Cranworth as to the creation of trusts by precatory words.

22. Rule laid down by Lord Langdale on same subject.

23. Will by two persons jointly.

24. Conjoint or mutual wills.

25. Agreement to leave property by will may be enforced.
26. Error in description of codicil immaterial.

1. The Statute of Frauds required that a will of real estate should be in writing; and, as will appear in a future chapter, wills of personal estate must also generally be in writing (a).

2. It has been held that printing, lithographing, or engraving is equivalent to writing under the statute (b); and that pencil writing is sufficient (c).

3. A will may be written on any material and in any mode (d). It is advisable, however, that it should be written on vellum, parchment, or paper (e); and to prevent any doubt or question as to the authenticity of the document, the writing throughout should be by the same hand, and in ink of one colour (ƒ).

4. Pencil writings formerly were, and no doubt they still are, as distinguished from writings in ink, considered deliberative. In Bateman v. Pennington (g), Lord Brougham said: "All the cases show that the sign

(a) See post. Bk. III. c. III. s. III. (b) In the goods of Casmore, L. R. 1 Prob. 653; 38 L. J. P. 54; 20 L. T. N. S. 497; 2 Black. Comm. 376-Chitty's notes; Schneider v. Norris, 2 M. & S. 286.

(c) In the goods of Dyer, 1 Hagg. 219; Gregory v. Queen's Proctor, 4 No. Cas. 623; Sugd. R. P. Stat. 351, 352.

(d) 1 Williams Exors. 106; Deane, Wills, 73.

(e) Shep. Touch. 54.

(f) Greville v. Tylee, 7 Moo, P. C 320; Birch v. Birch, 1 Rob. 675; In the goods of Bacon, 3 No. Cas. 645. (g) 3 Moo. P. C. 227.

CHAP I.

ing in pencil affords a prima facie presumption that Book III. the act is only deliberative; yet it may be shown to be otherwise." In that case the body of the will was in ink, but the date and signature were in pencil. The signature was preceded by the words: "In case of accident, I sign this my will." The testator died suddenly, and probate was allowed of the will so executed (a).

5. It is immaterial in what language a will is written, if the testator's wishes are clearly and unambiguously expressed. Latin, French, or any other tongue may be used (b). Contractions or figures may be employed, or numbers and letters explained by a key (c). If a will be in a foreign language, resort must be had to the foreign law or language for the purpose of deciding on the meaning of the particular words used in the will; but, having so ascertained the meaning of the terms, the law of the testator's domicil governs the construction of the instrument, so far as concerns personal estate (d).

6. Any paper propounded as a will must have what is called a testamentary character, and must have been created by the testator animo testandi; but it is not necessary that it should be in a testamentary form. The form of a paper does not affect its title to probate, provided it was the intention of the deceased that it should operate after his death (e). Thus a deed poll or an in

(a) See also, In the goods of Adams L. R. 2 Prob. 367; 41 L. J. P. 31; 26 L. T. N. S. 526.

(b) 1 Williams Exors. 105, 106. (c) Deane, Wills, 73; East v. Twyford, 4 H. L. C. 517; 9 Ha. 713.

(d) See Martin v. Lee, 14 Moo. P. C. 142; 4 L. T. N. S. 657.

(e) 1 Williams Exors. 99.