every degree of importunity that is sufficient to invalidate a will or testament. . . . But there may be great and overruling importunity, and undue influence, without fraud, which, when established, may and ought to have effect (under circumstances), to avoid a will or testament, such as the immoderate, persevering, and begging importunities and flattery of a wife who will take no denial, pressed upon an old and feeble man, which. may be better imagined than described; or dominion obtained over the testator under the influence of fear, produced by threats, violence, or ill treatment. In neither of these instances may there be any direct fraud; but an overruling influence upon the mind and feelings of a testator, according to the degree of his judgment and firmness." The cases all seem to agree that the influence which shall deprive one of the testamentary power, must go to the extent of destroying free agency. And where it appears that efforts were made, by interested parties, or those who acted on their behalf, to induce a will, in a particular direction, and the will seems to have been the result of such efforts, and is unfair, and unjust, in its provisions, it is natural, and, ! we think, just, to conclude that the influence did destroy free agency, or it could not have produced such a result.

33

28. It has been decided, that importunities of the wife, to induce her husband, when at the point of death, to make more

268, 269, it is said, the influence, to render a will void, must be intentionally exercised, so as to overcome free agency, by the seduction of flattery, importunity, false information, or menaces. The influence resulting from habitual confidence, or even deference on the part of the testator, inspired by affectionate attentions, or general kindness, will not be sufficient for that purpose, unless addressed to a mind of unresisting imbecility, and which had lost the power of self-direction.

Evans, J., in O'Neall v. Farr, 1 Rich. 80-84.

34 Lide v. Lide, 2 Brevard, 403. Mr. Justice Carpenter, in Trumbull v. Gibbons,

2 Zab. 117, thus sums up the rule upon this point: "It is not the influence acquired by kind offices, or even by persuasion, unconnected with fraud or contrivance, that will avoid a will."

liberal provision for her, than he is disposed to make, and which prevails in its purpose, will not avoid the will, if the testator was of sound mind, and was not imposed upon by false representations, and that the provision made for the wife, was not greatly disproportionate and unreasonable.

29. General bad treatment of the wife, on the part of the husband, is not sufficient to avoid a will, made by her, in his favor.35

30. From all this, and much more, which might be adduced from the cases already decided, it is obvious, that the influence to avoid a will must be such as:

1. To destroy the freedom of the testator's will, and thus render his act, obviously more the offspring of the will of others, than of his own.36

2. That it must be an influence specially directed towards the object of procuring a will in favor of particular parties.

3. If any degree of free agency, or capacity, remained in the testator, so that, when left to himself, he was capable of making a valid will, then the influence, which so controls him as to ren

35 M'Mahan v. Ryan, 20 Penn. St. 329; Jenckes v. Court of Probate, Green, Ch. J., in 2 R. I. 255; Batton r. Watson, 13 Ga. 63; Clayton, Ch. J., in Chandler v. Ferris, 1 Harr. 454, 464.

Williams v. Goude, 1 Hagg. 581. It is repeatedly said, in the cases, that the influence to avoid a will must not be that of affection merely, as in the case last cited, and in Armstrong v. Huddleston, 1 Moore, P. C. C. 478; Miller v. Miller, 3 S. & R. 267. But this must be received with this qualification, that such influence be not abused to purposes of injustice. For although it may be true, that one who has gained a controlling influence over another, by kind offices of duty or affection, is not thereby rendered incapable of receiving a liberal testamentary gift from such person, for if that were to be so held, it would offer, so far as it had any influence, a direct temptation to coldness and reserve, on the one hand, and distrust on the other; still it is not true, that if one should abuse the influence of affection, to the purpose of obtaining an unjust, and unequal, advantage over others, equally entitled to the testator's bounty; and do this, to the extent of overcoming free agency, or by means of fraud and deceit, it will not avoid the will.

der his making a will of no effect, must be such as was intended to mislead him to the extent of making a will, essentially contrary to his duty; and it must have proved successful, to some extent, certainly.

31. For we do not suppose, that if the testator is capable of making a valid will, when left to himself, his testamentary act is to be rendered nugatory, by the honest importunity of a wife, to obtain only what she deems her fair share of his estate, and which only prevails to that extent, although it could be shown that, without such importunity, the testator would have given her much less. And the same may be said of other relations fairly entitled to the testator's bounty. And although it may be justly said, that good faith is no fair criterion of justice and propriety, in the measure of the importunity of solicitors for testamentary bounty: yet, if the importunity is only successful to the extent of justice and propriety, its results, to that extent, can scarcely be condemned, because their author would gladly have carried them beyond that limit.

32. The cases, which have been decided upon this point, are almost infinite, in number and variety, and it would not be wonderful, if the principles, upon which they have been decided, were not always very obvious, or, when discoverable, if they were found somewhat in conflict.

33. We have before intimated, that the influence which avoids a will, must be one still operating at the time the will is made, and producing that perversion of mind which made the will.37

34. Although the fact that the testator makes a will, in favor of one not a relation, may be suspicious, nevertheless, affirmative proof of undue influence will be required to invalidate it.38

Ante, pl. 16, n. 19.

Jenckes v. Court of Probate, 2 R. I. 255. And the fact, that the testator used words, the legal effect of which is to carry a fée, when the proof shows, that he only intended to devise a life-estate, is no sufficient ground to presume fraud, or undue influence. Gibson v. Gibson, 9 Yerger, 329.

And it is obvious, that in cases of alleged undue influence, it must have a very controlling effect upon the validity of the will, whether the testator's previous declarations of affection and intention confirm the will or not.39

35. So also, it must always have considerable weight in favor of the validity of a will, where the testator lived many years after its execution, and was confessedly relieved from the influence of the alleged infirmity of mind, or defect of freedom, by which it is attempted to be set aside, without making any alteration in, or revoking the same. For it is always the proper inquiry, in regard to undue influence, whether it operated, as part of the transaction of making the will in question. And as that is an act, always ambulatory, during the life of the testator, his conduct after its execution is entitled to some weight, in determining its validity. But this depends so much upon the circumstances of each particular case, that it is not easy to lay down very minute rules, by which to estimate the weight of such considerations.40

36. This question has been very extensively discussed, in many of the American courts, and it is clearly established, by many cases, in different states, that the influence of a child, or wife, or of a friend, if exerted, in a fair and reasonable manner, and without deception, or imposition upon the testator, and while he had capacity to deliberate, and estimate the inducements offered, will not avoid a will, when made in favor of such party.41

* Allen v. Public Administrator, 1 Bradf. Sur. Rep. 378. In the very recent case of Neel v. Potter, 40 Penn. St. 483, where undue influence was attempted to be proved upon the devisees, two of his own name and blood, it was held competent for them to prove in reply, that the testator had made declarations, at intervals, during a period of many years, that he intended "to leave his farm in the name of Neel," for it would rebut the idea of undue influence, by showing that the testator had made his will, in accordance with a long-cherished purpose.

10 Kelly v. Theules, 2 Ir. Ch. 510.

"Elliott's Will, 2 J. J. Marshall, 340; Miller v. Miller, 3 S. & R. 267;

37. And it is sometimes said, that where capacity, formal execution, and volition, all appear, no tribunal can pronounce against the will, because of its disapprobation, however strong it may be, of the dispositions made by the testator.42 But in practice, we have always found juries disposed to infer undue influence, or want of proper capacity, or both, where the will itself seemed to indicate, in a high degree, injustice and want of proper consideration in the testator, if there was the slightest evidence in support of it. And although, in theory, either want of capacity, or undue influence, require distinct and satisfactory proof, we could never feel any strong impulse to interpose, in behalf of an absurd, or unjust, and unequal will, in order to withstand the common sense instincts of a jury against the validity of such an instrument.

38. The cases, in the American courts, all seem to come nearly to the same point, already indicated, as being the true test of undue, or fraudulent, influence, that it must be exerted male fide, to produce a result, which the party, as a reasonable person, was bound to know was unreasonable and unjust; and it must have the effect of producing illusion or confusion, in the mind of the testator, so as either to overcome his free agency, or power of judging, upon the true relations between himself and

Moritz v. Brough, 16 id. 403; Harrison's Will, 1 B. Mon. 351. The same rule, for substance, in regard to freedom of action by the testator, will apply where undue influence is charged, as in regard to many other points already discussed, where testamentary capacity comes in question. The real question in all these cases is, whether the paper propounded be the act of the testator, or of some other person or persons. Hence, undue influence should amount to coercion, to avoid the will. Gardner v. Gardner, 22 Wend. 526; Lowe v. Williamson, 1 Green, Ch. 82. The witnesses should be satisfied the testator acts understandingly. Walworth, Chancellor, in Scribner v. Crane, 2 Paige, 147. The fact that one makes a will in extremis in favor of those around him, and makes no provision, or an inadequate one for his children, is entitled to great consideration as evidence of fraud. Goble v. Grant, 2 Green, Ch. 629.

Ross v. Christman, 1 Ired. Law, 209.