The Law of Wills ... - Isaac Fletcher Redfield - Google Buku

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22. How the words "die unmarried," are to be construed under different

24. Death in the lifetime of A and B, means during their joint lives

25. The American cases allow of the change of words to carry out the clear

REMEDY WHERE THERE IS REASONABLE DOUBT IN REGARD TO THE PROPER

CONSTRUCTION OF INSTRUMENT CREATING A TRUST.

1. Executors and other trustees may bring bill in equity, in nature of bill

of interpleader .

2. Such bill may be brought by any party claiming an interest in the trust

3. The precise character of the remedy.

4. Rule in regard to costs

EXTRINSIC EVIDENCE IN AID OF CONSTRUCTION.

GENERAL PRINCIPLES AFFECTING ITS ADMISSIBILITY.

1. The rule in regard to wills the same as in contracts

2. Admissible in order to place the court in the position of the testator

3. But not to render any extrinsic fact part of the will

5. Such evidence cannot supply any defect, or accidental omission

show that part of the instrument is not the testator's will.

7. This will not render the whole void

8. Courts of equity correct mistakes apparent on face of will

n. 12. Recent English cases restrict this rule to such mistakes as are self-

9. This correction of mistakes in wills is effected by construction merely

10. Parol evidence admissible to remove latent ambiguities and to rebut a

resulting trust

11. An unintelligible will cannot be made good by extrinsic evidence

12. The difficulty exists in clearly defining the exceptions to the rule

13. How far extraneous circumstances admissible in Delaware

14. The rule as declared by the New York courts, and other states

15. Where the will is unnatural or improbable, proof of testator's motive

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5. Where the will is induced by a promise by the residuary legatee to pro-

vide for another

6. The non-performance of such promise is a virtual fraud. Its perform-

ance decreed in equity

7. Force, or imposition, in the procurement, will avoid a will

8. Testamentary capacity of slaves, and others, in subordinate relations

9. Swinburne, in regard to wills obtained by duress per minas, &c.

10. But such wills may be ratified after cause of apprehension removed

n. 12. Exposition of the more common practices upon aged people

11. It is impossible to define every species of undue influence

12. A will in favor of the party procuring it, should clearly appear to be the

offspring of choice and freedom

13. One under guardianship prima facie incompetent to make a will

14. Unnatural or unreasonable wills, presumed to be the offspring of some

perversion of mind

15. If the testament is the result of over importunity, it is void

16. But constraint, to avoid the will, must have produced the act

17. Dr. Lushington's definition of the constraint which will avoid a will

n. 20. Free agency consists in the power to control the will, by judgment

18. All action is the compound result of the force of mind, and the resist-

ance to be overcome

19. The mind must possess sufficient strength to overcome the resistance

n. 24. A will produced by fraud, in favor of innocent parties, is void

20. But a will may be void, in part, or, as to particular legatees ·

21. The precise limit of lawful influence upon a testator not easily defined. 519, 520

22. Some degree of influence, which may qualify, or even produce, the will,

23. Eyre, C. B., illustrates the point, by that of an artful woman

24. An undutiful testament set aside upon slight evidence of extraneous in-

25. But one may disinherit his children if he do it freely, and understand-

n. 25. Swinburne's definition. It must be done freely; not to obtain quiet

26. The influence to avoid a will, must have produced it, by design

ñ. 30. Mere general influence will not be sufficient

27. Advice, argument, and persuasion, innocent, within proper limits. But

where they produce an unequal and unjust will, the presumption is,

the influence, if any, was undue

28. Reasonable provisions, produced by persuasion, at the point of death,

n. 36. Kind offices, or persuasion, exempt from fraud or contrivance, will

not avoid a will

29. General bad treatment of a wife, by her husband, will not avoid a will

30. Recapitulation of the degree of influence requisite to avoid a will

1. The will must not be virtually the offspring of other minds than

the testator's.

524

.

2. The influence must not have designedly produced the will

3. It must not have been intended to mislead the testator to make a

will contrary to his duty.

31. Testator, capable of making a will, may be affected by importunity, and

not avoid the will

32. The cases conflicting, and not always put upon sound principles

33. The influence to avoid a will must operate, at the time it is made

34. Will in favor of stranger prima facie good. Declarations of testator ad-

35. The effect of testator living many years after making will

36. The American cases allow influence, but not such as is fraudulent, or

37. Juries will commonly find excuse for setting aside an unequal and un-

38. The American cases require undue influence to be mala fide, and to de-

stroy free agency

39. Declarations of testator, of a date prior to the will, received upon this

40. Undue influence defined, by different terms, all importing the loss of free

41. Suspicious circumstances, in the relations of the parties, demand watch-

42. Recognition of will, after all influence removed, evidence of its validity

43. Ground upon which will may be set aside

44. Bona fide effects of persuasion do not amount to undue influence

45. But where the influence proceeds from an unlawful relation, it is unlaw-

46. It must overcome free will. Question cannot go to the jury, unless there

is legal evidence.

47. Several late English cases, defining undue influence, and testamentary

48. Scrivener cannot testify to intention to have will operate from date

49. American rule, that proof of condition of subject-matter receivable in all

50. Scrivener can never testify to meaning of ambiguous terms, except in

latent ambiguities

51. Statement of cases where former will, and declarations of testator, ad-

536, 537

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

543

6. Admissible upon questions of fraud and undue influence

a. But not to established facts, dependent upon the veracity of the

c. Statement of the only English case relied upon, for their general

d. The weight of American authority is against their admission in

proof of facts.

e. Admissible to show the state of testator's mind

f. Not admissible to prove fact of importunity and undue influence

g. Extent to which they are admissible as to condition of testator's

h. They afford great aid, in determining the effect produced on the

testator's mind

i. If made before the testamentary act, will be of more force, than if

k. Not connected with the subject of will, admissible to test mental

capacity, even where made long before its execution

1. Declarations to show comprehension of the subject, and absence of

m. Sometimes received for exceptional purposes

n. Statement of the general results

o. Conclusions to which the New York Court of Appeals arrived in

t. The practice, in the ecclesiastical courts, to receive declarations

p. Not admissible to show revocation

q. How far admissible to show fraud, or influence

r. Distinction between the acts, and effects, constituting undue influence

s. Statement of an important case in New Jersey

n. 40. Exposition of the ground upon which the admissibility goes

n. 44. Practice of the ecclesiastical courts stated.

7. In cases of latent ambiguity, such declarations always receivable

8. And it makes no difference whether made before or after, or at the time

of the execution

9. Further exposition of the reason of the rule in cases of latent ambiguity

10. Discussion of the authorities bearing upon this question .

11. If the words or circumstances indicate how the terms were used, no

latent ambiguity arises

12. The present state of the law upon this question.

13. Extrinsic evidence not receivable, except in cases of strict equivocation

14. Declarations of testator admissible to show knowledge, and to rebut fraud

15. Declarations of blind testators receivable, to show knowledge of provis-

16. So, also, to rebut charge of surprise or incapacity, by proving former

17. But not to show imposition upon testator, in state of intoxication

18. The American cases adhere strictly to the rule, excluding parol evidence,

19. In some of the states, courts of equity have corrected mistakes in wills

20. Mere mistakes in a will, where no fraud imputable, not corrected in

21. Courts of equity will lend their aid in cases of fraud, if required

562-565

568, 569

570, 571

LATENT AMBIGUITIES AND THE MODE OF THEIR REMOVAL.

1. This, one of the most extensive grounds for receiving parol evidence

2. Cannot be received to add to the will itself

n. 2. Discussion of the case of Miller v. Travers

3. Definition of the grounds upon which it is to be received

4. The case of Hiscocks v. Hiscocks discussed

n. 3. Discussion of the general subject, as presented in Hiscocks v. Hiscocks 576-581

5. The early English cases, and most of the American cases, do not come

up to the precise rule

6. The familiar illustration of the text-books clearly defines the rule

7. Where the extrinsic evidence fails to remove the ambiguity, the devise

12. Parol evidence not admissible to defeat a bequest to a known person,

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