garded. The ordinary influence of a lawful relation must be lawful, even where it affects testamentary dispositions; for this is its natural tendency. The natural and ordinary influence of an unlawful relation must be unlawful, in so far as it affects testamentary dispositions, favorably to the unlawful relation, and unfavorably to the lawful heirs. Ordinary influence may be inferred in both cases, where the nature of the will seems to imply it; but in the former it is right, because the relation is lawful; and in the latter it may be condemned, together with its effects, because the relation is unlawful. It is not inconsistent with this, that it has been decided, that the devise of a wife to her second husband, was not affected by the fact that she knew she had a husband living at the time of her second marriage, even though the second husband heard of it before her death; for this shows no conscious transgression of law by him, in his marriage with her, and her heirs could not set up her fraud on him, as a reason for avoiding her will.60 There can be no doubt, that a long-continued relation of adulterous intercourse, is a relation of great mutual influence of each, over the mind and person and property of the other. History abounds with proofs of it, and it requires no very long life, or very close observation of persons around us, in order to reveal the fact. . . . If, then, there was such a relation between the testator and Mrs. Bolton, at the time of the making of the will, as was offered to be proved, we think that that fact, taken in connection with the devise to Mrs. Bolton's daughters, is evidence of an undue influence, exerted by her over the testator, and affecting the dispositions of his will, and that it may justify a verdict against the validity of the will. I have, myself, thought that it raised a presumption of law of undue influence, but we do not so decide, but leave it as a question of fact merely."

46. The question came again under consideration before the

" 8 Harris, 329.

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same court, in a still more recent case, where it was declared, that undue influence, to avoid a will, must be such as to overcome the free agency of the testator, at the time the instrument was made. It must be a present constraint, operating upon the mind of the testator, at the time of the testamentary act. And where undue influence was charged upon the executor, and no evidence was given of any influence exerted by him over the testatrix, at the time of making her will, nor of any fraud, misrepresentation, or constraint of any kind, whatever, in procuring a will in his favor, it was held to be error to submit the question to the jury, whether any such undue influence had been exerted by him.

47. The subject of undue influence, in procuring favorable testamentary dispositions of property, has been often brought before the English Court of Probate, within the last five years. In the case of Earl Sefton v. Hopwood,62 it was held, that supposing a will to be made by a person of testamentary capacity, it is not sufficient to avoid it, that it is not such a will as a sensible person would make, or that it is harsh, capricious, and unjust; nor, on the other hand, is it sufficient to avoid it, on the ground of undue influence, that it was made, as the result of acts of attention and kindness; but the influence, or importunity, must be such as to deprive the testator of the free exercise of his will. The testamentary capacity, however, involves more than the mere fact of recognizing familiar persons, or objects; and means a sound disposing mind; that is, the power of underderstanding the nature of the property and the family, and the effect of the will. Undue influence must not be such as arises from the influence of gratitude, affection, or esteem; but it must be the control of another will over that of the testator, whose faculties have been so impaired, as to submit to that control, so that he has ceased to be a free agent, and has quite succumbed

"Eckert v. Flowry, 43 Penn. St. 46.

62 1 Foster & Finlayson, 578; Lovett v. Lovett, id. 581.

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to the power of the controlling will.62 In another case, where the testator was in extreme old age, and in the last stage of bodily infirmity, bedridden, utterly helpless, and dependent on the care of the plaintiff, sole devisee of the realty, and a nurse, the only legatee, and a physician, one of the witnesses, and an intimate friend of the devisee; her own attorney, another witness having prepared the will, on instructions elicited by himself from the testator, by interrogatories; and where they had, a few days before, represented him "as quite incapable of managing his own affairs, or taking care of his person ;" and it being admitted, that two or three days before, he was not competent to make the will; yet the jury being told, that if he understood the state of his property and of his family, and the effect of his will, and he had free volition, and the will was really in accordance with his intentions, it was valid; and there being evidence that it was so made, a verdict in favor of the will was not disturbed.

48. It is not competent for the person drawing a will, to testify what passed between him and the testator at the time, for the purpose of showing, that a will, giving legacies, generally, and devising the residuum of the testatrix's real estate to her children, she having only real estate at the time of the execution of her will, but becoming possessed of personalty before her decease, was intended to operate only upon such estate as she had at the date of the will. This, in the language of Ellsworth, J., "is attempting to deny, and control the will, by parol

Swinfen v. Swinfen, 1 F. & F. 584.

This seems precisely one of those cases, where a jury will be likely to give a verdict, in accordance with their sense of the propriety of allowing the will to stand. And this depends, very much, upon whether it conforms to the known or presumed intention of the testator, while in condition fully to comprehend the nature of the transaction.

Canfield v. Bostwick, 21 Conn. 550. It is here held, that the question of the operation of the will, upon the testator's property, and the time from which it shall be regarded as speaking, is an intendment of law, and not liable to be controlled by direct proof of the testatrix's intention.

proof, rather than to explain away any ambiguity, created by extraneous circumstances applied to it."

49. It seems to be an universal rule in America, in regard to the admission of parol evidence to explain written instruments, and especially in regard to wills, that such testimony, showing the condition of the subject-matter upon which the writing is to operate, as the state of the testator's property, is always admissible to explain a latent ambiguity, or to aid the construction, whether the ambiguity be latent or patent. But a patent ambiguity cannot be explained, by direct extrinsic evidence of testator's intention.66

50. But the testimony of the scrivener is never admissible to explain the meaning of ambiguous terms used in a will, except in the case of a latent ambiguity.67

51. The American cases, as well as the English, allow a very extensive range of testimony in support of, and in reply to, evidence tending to show undue influence and weakness of mind, as

"Brainerd v. Cowdrey, 16 Conn. 1; Ward v. Epsy, 6 Humph. 447; Doe v. Roe, 1 Wend. 541; Tudor v. Terrel, 2 Dana, 47; Davis v. Davis, 3 Am. Law Reg. 533; Holton v. White, 3 Zab. 330; Riggs v. Myers, 20 Mo. 239; Domestic & Foreign Mission Society v. Reynold, 9 Md. 341; Mitchell v. Mitchell's Lessee, 6 Md. 224; Brownfield v. Brownfield, 20 Penn. St. 55; Douglas v. Blackford, 7 Md. 8; Johnson v. Johnson, 32 Ala. 637.

67 M'Allister v. Tate, 11 Rich. Law, 509. But the testimony of the scrivener has been received, in a considerable number of American cases, and in many of the earlier English cases, with a view to aid the court in the construction of the will, under circumstances not altogether reconcilable with the settled rules of law upon the subject. Thus in Nolan v. Bolton, 25 Ga. 352, the attorney who drew the will was allowed to testify to his instructions, and the declarations of the testator, at the time of executing the will, that apparent loans should be treated as advancements, this being considered part of the res gestæ, and that the testimony tended to show, in which of two admissible senses, the words of the will were used. So the declarations of the testator, at the time of executing his will, have been received to show, that he had provided for certain of his children, which were omitted in his will, and that their names were purposely omitted, and not by accident. Lorieux v. Keller, 5 Clarke, 196.

the moving and proximate causes of the will. Thus, another will, executed eight years before, making a different disposition of the testator's property, was received, as tending to support the claim of undue influence.68 And on the other hand, evidence of harshness, abuse, and menace, on the part of the beneficiary, and timidity on the part of the testator, will induce the court not to disturb a verdict against the will. And evidence tending to show the previous purposes of the testator, in regard to the disposition of his property, is receivable, upon the question of the capacity to comprehend the will, and how far it was the result of free will.70 And unpublished wills are admissible upon this question. But in many well-considered cases, declarations of the testator, tending to show his wishes, in regard to the disposition of his property, made for periods more or less remote from the time of the execution of the will, have been rejected.72

SECTION III.

ADMISSIBILITY OF TESTATOR'S DECLARATIONS.

1. Not admissible as those of a party.

2. Not admissible to affect the construction of the will.

3. Admissible to show intention in giving a legacy.

4. To show whether will was published by the testator.

5. So, also, as to an equivocal act of revocation, as part of the res gestæ.

"Hughes v. Hughes, 31 Alabama, 519.

"McDaniel v. Crosby, 19 Arkansas, 533.

"Means v. Means, 5 Strobh. 167.

" Love v. Johnston, 12 Iredell, 355.

"Landis v. Landis, 1 Grant's Cases, 249. The declarations here were made more than two years before the execution of the will. Runkle v. Gates, 11 Ind. 95. The question of undue influence is extensively discussed by Hanna, J., in a later case in this state, Noble v. Enos, 19 Ind. 72, where the will of a married woman came in question.