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"coercion, or positive fraud." The learned judge said: "What law can decide, what is the degree of influence which a wife can exercise over a husband, sufficient to invalidate acts done under it? What may be the motives upon the mind of the testator? Put the case in the strongest point of view fear of displeasing, fear of future solicitation, love of peace, or it may be, deference to superior judgment, or affection and regard. Who is to dive into these motives? What evidence can any tribunal have? Coercion may, indeed, be capable of proof, and in such case no act would be valid:" And it is added, that although the testator was enfeebled in mind, he had the power of resistance, and that there was not the slightest evidence of importunity, and the court, therefore, pronounced for the will.

18. It is obvious that each case must depend very much upon its own circumstances. These questions will not be likely to arise, except in regard to persons, naturally of weak minds, or facile dispositions, or where such has become their condition, either from age or disease. And in regard to such persons, it must, of course, be only an influence adequate to control the free agency, which is required to avoid the will, and the character and degree of such influence will depend, very much, upon the strength of mind, and will, to be overcome by it.21

19. The rule upon this subject is very carefully defined by Mr. Chief Justice Buchanan,22 thus: "A testator should enjoy full liberty and freedom, in the making of his will, and possess the power to withstand all contradiction and control. That degree, therefore, of importunity, or undue influence, which deprives a testator of his free agency; which is such as he is too

21 O'Neall v. Farr, 1 Rich. S. C. 80; Thomson v. Farr, 1 Speer, 93; s. c. Cheves, 37; Martin v. Teague, 2 Speer, 268, 269; Tomkins v. Tomkins, 1 Bailey, 92; Chandler v. Ferris, 1 Harr. 454, 464; Brown v. Molliston, 9 Wharton, 137; Leverett v. Carlisle, 19 Ala. 80; Potts v. House, 6 Ga. 324; Wampler v. Wampler, 9 Md. 540; McMahon v. Ryan, 20 Penn. St. 329.

22 Davis v. Calvert, 5 Gill & J. 302, 303.

weak to resist, and will render the instrument not his free and unconstrained act,23 is sufficient to invalidate it; not in relation to the person alone, by whom it is procured, but as to all others, who are intended to be benefited by the undue influence." "If a man, by occasion of some present fear, or violence, or threatening of future evils, does at the same time or afterwards, by the same motive, make a will, it is void, not only as to him who puts him so in fear, but as to all others." 24

20. It is undoubtedly true, that a will may be void in part, and not in all its provisions; or it may be void as to one legatee, and not as to others.25

21. The proper limit of influence, which may legitimately be brought to bear upon the mind of a testator, to induce the making of a will in a particular direction, and at what precise point such influence becomes what the law denominates undue, and such as will avoid the testamentary act, it is not easy to define.

* Small v. Small, 4 Greenl. 223.

"Bridgman v. Green, 2 Vesey, 627; Huguenin v. Baseley, 14 Vesey, 273, 282. The general proposition, that interests, obtained through the fraud of another, cannot be maintained, is here decided, and Lord Eldon, in giving judgment, said: "I should regret that any doubt could be entertained, whether it is not competent to a court of equity to take away from third persons the benefits which they have derived from the fraud, imposition, or undue influence, of others." And when the case of Bridgman v. Green came before the Lords Commissioners, Lord Ch. J. Wilmot, Wilmot, Term Notes, 64, said: "There is no pretence that Green's brother, or his wife, was party to any imposition, or had any due, or undue influence, over the plaintiff; but does it follow from thence that they must keep the money? No; whoever receives it, must take it, tainted and infected with the undue influence and imposition of the person procuring the gift. . . . Let the hand receiving it be ever so chaste, yet if it comes through a polluted channel, the obligation of restitution will follow it."

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25 Lord Trimlestown v. D'Alton, 1 Dow & Cl. 85; s. c. 1 Bligh (N. R.), H. L. Cas. 427, where it is held, that the provisious of a will in favor of a particular party, procuring the will in his favor by undue influence, are void, and the others valid. But if the influence extends to the whole will, the whole will be declared void. Florey v. Florey, 24 Ala. 241.

It can only be done by approximation, and by way of illustration, from the cases already decided in regard to the question.

22. It is confessedly true, that a will is not avoided by every degree of influence, which may be shown to have operated in producing the testamentary act, or even that without which it would not have been done, or if done, not in the same form. The question is at what point such influence becomes undue.

23. The extent of such influence is very justly discussed, by Eyre, C. B., in Mountain v. Bennett.26 The learned baron said: "If a dominion was acquired by any person over a mind of sufficient sanity to general purposes, and of sufficient soundness and discretion to regulate his affairs in general; yet if such a dominion or influence were acquired over him as to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind" [as if actual force were resorted to]; "and perhaps the most probable instance of such a dominion being acquired is that of an artful woman . . . having taken possession of a man and subdued him to her purposes." It is said, the overpowering influence of the husband upon the mind of the wife, will be more readily presumed than the reverse.27

26 1 Cox, 355.

Marsh v. Tyrrell, 2 Hagg. 84-141. The language of Swinburne, part vii. ch. iv. is very expressive upon this point, as upon most others: "It is not unlawful for a man, by honest intercessions and modest persuasions, to procure either another person or himself to be made executor; neither is it altogether unlawful for a man, even with fair and flattering speeches, to move the testator to make him his executor, or to give him his goods." The author notes certain exceptions to this rule, among which are, the use of force, fraud, and deceit; "where the testator is a person of weak judgment, and easy to be persuaded, and the legacy great;" where the person has peculiar means of influencing the testator, as his physician, or wife, threatening to desert him, in the extremity of sickness; "where the persuader is very importunate, for an importunate beggar is compared to an extorter, and it is an impudent part still to gape and cry upon the testator, and not to be content with the first or second denial." And lastly, where the testator had made a former will, and is persuaded to re

24. As is said in Swinburne, it is certain the courts cannot assume to measure and to guard against every species of influence which may be brought upon the testator, to give his property in a particular direction. It is only that degree of influence which deprives the testator of his free agency, and makes the will more the act of others than of himself, which will avoid it. Hence any thing in the character of the will which renders it contrary to natural affection, or what the Civil Law writers denominate an undutiful testament,28 as where children, or others, entitled to the estate, in case of intestacy, are wholly disinherited; or if not wholly deprived of a share, it is given in such unequal portions as to indicate that it is done without any just cause, and wholly dependent upon caprice, or over persuasion, or deception, it must always excite apprehension of undue influence, at the very least.

25. But it is not to be supposed that the courts would adopt any such view of the law, as virtually to deprive the testator of the right of disinheriting his children even, upon any ground satisfactory to himself. The Roman law 29 did indeed prohibit this, except upon certain allowable grounds, specifically defined, but the English law, and that of the American states, makes no such limitation of testamentary power.

26. It is sometimes said, that no degree of influence over

voke and alter it. These propositions will be found to contain the germ of all the cases upon the point. So also, in Hacker v. Newborn, Styles, 427. Rolle, Ch. J., said: "If a man makes a will in his sickness, by the over importunity of his wife, to the end he may be quiet, this shall be said to be a will made by constraint, and shall not be a good will." Moneypenny v. Brown, 8 Vin. Ab. 167, tit. Devise (Z. 2), pl. 7; Lamkin v. Babb, 1 Cas. temp. Lee, 1; Harwood v. Baker, 3 Moore, P. C. C. 282. A will produced by improper influence ought not to be established, even where the parties injured do not complain. Brown v. Moore, 6 Yerger, 272. See Denslow v. Moore, 2 Day, 12, as to what kind and degree of coercion will defeat a will.

29 2 Domat, Civ. Law, part ii. book iii. tit 2.

29 2 Domat, part ii. book iii. tit. ii. sec. 1, ii.

another, which is general, and operating at all times, and upon all subjects, and which is not specifically exerted to procure the testament in question, will be sufficient to avoid it.30

27. It may be safe to adopt the language of Ch. J. Clayton,31 that "neither advice, nor argument, nor persuasion, would vitiate a will made freely, and from conviction, though such will might not have been made, but for such advice and persuasion." It was well said by Chief Justice Buchanan,82 that "it is not

Small v. Small, 4 Green. 220. This is an important case, and the opinion, by Chief J. Mellen, affords an able commentary upon the law. The learned judge says: "If a wife by her virtues has gained such an ascendancy over her husband, and so riveted his affections, that her good pleasure is a law to him, such an influence can never be a reason for impeaching a will made in her favor, even to the exclusion of the residue of his family. Nor would it be safe to set aside a will on the ground of influence, importunity, or undue advantage taken of the testator by his wife, though it should be proved she possessed a powerful influence over his mind and conduct, in the general concerns of life, unless there should be proof that such influence was especially exerted, to procure a will of such a kind, as to be peculiarly acceptable to her, and to the prejudice and disappointment of others." This seems to define the true limits of influence to avoid a will. It is not sufficient to show that such general influence existed to any extent, unless there is proof that it was exerted in procuring the particular testamentary act in question. But where the influence is shown to have been absolute, and irresistible over the testator, upon general subjects, and there were constant opportunities of exerting such influence, and the will is unreasonably, and extravagantly, in favor of the party possessing such influence, the inference is legitimate, that it was the result of that influence. And such is unquestionably the fair conclusion, in most cases, even although there should be probable evidence, that no effort had been made in that direction, by the person possessing the control of the testator, and in whose favor the will is made, for some considerable period before the will; as if it were executed in the temporary absence of such person. The obvious and natural connection, between the power to control, and the testamentary act, being established, although mainly by their coincidence and adaptation to each other, the presumption will naturally arise, that the temporary withdrawal of such effort at influence did not relieve the testator wholly from its effects. In Chandler v. Ferris, 1 Harring. 454, 464.

32 In Calvert v. Davis, 5 Gill & J. 301, 302. In Martin v. Teague, 2 Speer,

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