that the conveyance to her by Haussman, on her promise to reconvey to him upon his request, apparently created an express trust, and such a trust cannot be proved by parol: Dean v. Dean, 6 Conn. 285; Vail's Appeal, 87 Conn. 198; Todd v. Munson, 53 Conn. 579.

The plaintiffs do not admit that such a trust existed, and disclaim any right to recover because of such a trust. They are estopped by the deeds from claiming a resulting trust, on the ground that they were without actual consideration: Belden v. Seymour, 8 Conn. 304; 21 Am. Dec. 661; Feeney v. Howard, 79 Cal. 525; 12 Am. St. Rep. 162; Graves v. Graves, 29 N. H. 129; Philbrook v. Delano, 29 Me. 412.

The claim is made that before Haussman requested Mrs. Haussman to reconvey to him there was no trust, and that after he made such request trust arose; but it can hardly be said that the request alone made Mrs. Haussman a trustee. Such request did not change the character of her promise; it only fixed the time when it became her duty to perform it; and according to the claim set up, if Haussman had never made any request for the reconveyance, or if, upon such request, the land had been revested in him, there never would have been any trust. Still, it is insisted that be. cause the land was not reconveyed to him upon request, Mrs. Haussman became a trustee for him by construction of law. On this point, the learned chief justice said: "Pomeroy's Equity Jurisprudence, section 155, says: 'All instances of constructive trusts may be referred to what equity denominates fraud, actual or constructive, including acts or omissions in violation of fiduciary obligation.' In another part of the same section, it says that constructive trusts are sometimes called trusts ex maleficio. I look in vain through this case for any indication of fraud or want of good faith on the part of Mrs. Haussman. On the contrary, the facts show that she made the promise to reconvey honestly and with the full intention to perform it. She did perform it so far as performance depended on her. It is well settled that the failure to perform a promise honestly made is not fraud: Feeney v. Howard, 79 Cal. 525; 12 Am. St. Rep. 162; Perry v. McHenry, 13 III. 227; Wheeler v. Reynolds, 66 N. Y. 234; Levy v. Brush, 45 N. Y. 589; Cowan v. Wheeler, 25 Me. 269; 43 Am. Dec. 283; Burden v. Sheridan, 36. Iowa, 125; 14 Am. Rep. 505; Boyd v. Stone, 11 Mass. 348. No fraud, actual or constructive, towards her husband can be imputed to Mrs. Haussman, for she did exactly what he asked her to do, and just what she had promised to do, so for as it was possible for her to do it. That the deed failed to have the effect they desired was owing to the mistake of Mr. Haussman as much as to any mistake of Mrs. Haussman. It was a mutual mistake, owing to incorrect advice as to the legal effect of that deed. It has been laid down by high authority that where parties have been mutually mistaken as to the legal effect of the transaction into which they have entered, equity will not interfere to reform the contract: Eaglesfield v. Marquis of Londonderry, L. R. 4 Ch. Div. 693; Pomeroy's Eq. Jur., sec. 846; Wheaton v. Wheaton, 9 Conn. 96. Whether or not this is the law it is not necessary to decide. the present case, the mistake is as to a statute requisite, which on other grounds cannot be supplied by any equitable interference, as already shown."

In

HUSBAND AND WIFE- CONVEYANCES BETWEEN. Deeds of conveyance from a wife to her husband: Extended note to Turner v. Shaw, 9 Am. St. Rep. 323-326. Contracts and conveyances between husband and wife: Extended note to Kantrowitz v. Prather, 99 Am. Dec. 599 et seq.; Manchester v. Tibbetts, 121 N. Y. 219; 18 Am. St. Rep. 816; Corcoran v. Corcoran, 119

Ind. 138; 12 Am. St. Rep. 390, and note; Manning v. Pippen, 86 Ala. 357; 11 Am. St. Rep. 46, and note. Deeds of separation between husband and wife are valid, when made during the arrangements for separation or thereafter: Rains v. Wheeler, 76 Tex. 390. In Mississippi, all transfers between husband and wife must be in writing, to be valid as against third persons: Arnold v. Elkins, 67 Miss. 675.

RICHMOND'S APPEAL.

[50 CONNECTICUT, 226.]

On

WILLA - EVIDENCE TO RAISE PRESUMPTION OF UNDUE INFLUENCE. the issue of undue influence in the execution of a will, exercised over the teatatrix by a legatee who was her confidential agent, all the facts affecting or attending the relations of the parties, and having a direct, posi tive, important bearing upon the question, such as the amount, situation, and character of the property with which he was intrusted during any and all portions of his stewardship, as well as the degree of knowledge which the testatrix possessed in regard to the same, and the agent's conduct in imparting information upon the subject to her, or in withholding it from her, are relevant, important, and admissible. WILLS-OPINION OF MENTAL CAPACITY BY COMPARISON AS EVIDENCE. — On the issue of undue influence, a witness may give his conception of the testatrix's mental capacity by comparison, and state that it is his opinion, founded on observation, that such mental capacity was not greater than that of an average child of seven or eight years at the time that the will was executed.

JURY-RIGHT TO READ FROM LAW BOOK TO. -On the contest of a will, coun sel has no right to read to the jury, in his argument, from a standard law work on wills, as the reading to the court or jury of scientific books reoognized as standard authority, when necessary to an understanding of any relevant matter, may be granted or denied in the sound discretion of the court.

WILLS. — CAPACITY Required of a TESTATOR to make his will valid is, that at the time of its execution he be possessed of sufficient intelligence and memory to fairly and rationally comprehend the effect of what he is doing, and the nature and condition of his property, to understand who are or who should be the natural objects of his bounty, and his relations to them, the manner in which he wishes to distribute it among or withhold it from them, and the scope and bearing of the provisions of the will he is making. WILIS — TESTAMENTARY CAPACITY. — Mere physical weakness or disease, old age, eccentricities, blunted perceptions, weakening judgment, failing memory or mind, are not necessarily inconsistent with testamentary capacity, but evidence of such facts, or of any of them, should be submitted to the jury to aid in determining whether or not the testator had sufficient testamentary capacity at the time of executing his will. WILLS-PRESUMPTION OF UNDUE INFLUENCE.—The mere existence of a confidential relation will not in all cases necessarily raise a presumption of undue influence in the execution of a will, especially when it appears that the opportunity of familiar and secret communication and intercourse between the testator and the beneficiary, at a time proximate te

the execution of the will, is wanting; but when a legacy is given to an attorney, confidential adviser, guardian, or other person sustaining a relation of special confidence to the testator, or when the person who prepares the will or conducts its execution, not being a relative who would, in the absence of the will, be an heir, derives a benefit from its provisions, such presumption may arise from the surrounding circumstances which would justify the jury in finding that undue influence existed, in the absence of rebutting or explanatory proof. The question of undue influence should be left for the jury to determine, under proper instructions. WILLS-PRESUMPTION OF UNDUE INFLUENCE. When the person who draughts a will or participates in procuring its provisions from the testator also occupies a relation of special confidence toward him, and would not be a beneficiary in the absence of the will, and is specially benefited by its terms, the presumption of undue influence arises, and the burden of proof is on him to show that the will was executed freely and without his influence. In such case, direct and positive proof that the beneficiary took part in procuring from the testator the terms and provisions of the will is not required to raise such presumption; it may be inferred from surrounding circumstances.

C. H. Briscoe and J. P. Andrews, for the appellants.

O. E. Searls and G. A. Conant, for the appellees.

FENN, J. On the trial of this appeal to the jury, the appellees, having offered the will and codicil, and having introduced the witnesses thereto upon the question of their execution and the capacity of the testatrix, rested. The appellants then presented evidence, claimed as tending to establish the want of such capacity, and undue influence exercised by one Cushman, the residuary legatee, to which the appellees replied with counter-evidence.

Concerning the relations which existed between the testatrix and Cushman, the finding is as follows: The testimony of the parties was in substantial agreement in establishing the following facts: In or about 1878, Mr. Heap, husband of the testatrix, died. Mrs. Heap was then left alone, without near relatives, in Willimantic. She was, and for many years had been, the owner of property, a part of which consisted of real estate in Willimantic, and on a part of which she resided. Mr. Cushman had been a friend of Mr. Heap during his last years, and soon after the latter's death became managing agent of Mrs. Heap's property. A power of attorney was executed by her to him for the purpose, and all her property then passed into his management. From this time until Mrs. Heap's death he remained her confidential friend and business adviser, and continued in the management of her prop

erty, she placing great trust in and reliance upon him. Dur ing the later years of Mrs. Heap's life Cushman became an inmate of her house, and there remained, caring for her and her property, until her decease. She died June 4, 1887, aged eighty-five years, leaving as her nearest kin twenty-eight nephews and nieces, among whom are the appellants.

In reference to the circumstances attending the execution of the will and codicil, the finding states that the evidence was practically confined to the testimony of the attorney who draughted them, which it states as follows:

"A few days prior to the execution of the will, Cushman, whose employment was in Hartford, and whom he well knew, came to him, and requested him to go to Willimantic and draught a will for an old lady there, naming the testatrix. During the conversation, Cushman stated that she had spoken of her desire to make her will, and had told him in general what she proposed to do, and asked him who a suitable man to draught it would be. Cushman knew the witness, and had upon several occasions employed or consulted him. The witness testified that he presumed that he had been Cushman's usual attorney. Cushman told the witness that he had suggested him as a proper man to draught the will, and that Mrs. Heap had requested him, Cushman, to obtain the witness for that purpose. Cushman told the witness that Mrs. Heap had said that she proposed to remember certain of her relations, and to make him a handsome legacy. During the conversation something was said about the amount of her estate, and witness understood Cushman to reply to an inquiry from him, that it was about twelve thousand dollars; but the witness was unwilling to say that the expression was not used of the amount of personal estate in Cushman's hands, although the witness did not at the time so understand it. Upon a day set, the witness went to Willimantic, and was introduced to Mrs. Heap by Cushman. Cushman immediately left the witness and Mrs. Heap alone together. They discussed at length, and alone, the provisions of her will, Mrs. Heap giving him data as to her wishes, and explaining at length her reasons for much of her action. The witness took memoranda as she stated what she desired. He then draughted the document, and read it carefully over to her. She expressed her satisfaction. Thus far no one had been present. At this point Cushman was summoned and asked to procure two witnesses. He went out and obtained them, and soon returned with them. The

document was thereupon executed, Cushman being present. The witness stated that the instrument was Mrs. Heap's will, but did not at any time state anything as to its provisions. Neither Cushman nor any other person was informed of the contents of the will until after its execution and the witness's departure. Memoranda for the codicil, together with the will, were brought to the witness in Hartford by Cushman, for him to draught the codicil, which he did, returning it and the will to Cushman. The witnesses to the codicil testified that it was executed in Cushman's presence, and that they were requested by him to act as witnesses. The witness charged his services on book to Mrs. Heap. Payment of the bill was afterwards made by Cushman."

The estate inventoried $27,689.62, of which $12,000 was real and the balance personal estate. By the provisions of the will, the sum of two hundred dollars is given to each of twenty-five nephews and nieces. To one of these nephews the additional sum of one hundred dollars a year is given, during the life and conditioned on the support of his father, the brother of the testatrix, who died shortly after. A gold watch is also bequeathed to one Kate Clark, and the will then concludes as follows: "All the rest of my property of every kind I give absolutely to my friend E. McCall Cushman, of Hartford, Connecticut. I do this as only a just reward for his faithful care of all my affairs for many years; for his constant friendship to me personally; and for my great esteem for him and confidence that he will make the wisest and best use of the property given him." In the will it is provided that if any of the nephews and nieces named as legatees shall have died, leaving children, such children are to take the legacy. By the codicil, this provision and the bequest of the watch are revoked. The will is dated October 1, 1885, and the codicil March 16, 1886.

The appellants' first witness was John L. Richmond, who, having testified as to Cushman's management of Mrs. Heap's affairs, and the power of attorney therefor having been laid in, was asked upon direct examination, "Do you know the value of her property in 1878 or 1880?" Upon objection being made, the counsel for the appellants claimed it to show what property Cushman had control of, adding: "The object of this inquiry is to show all the relations that existed between this man and this woman from the time he came there and took hold of the property; whether she was a woman of large or small means." To a question by the court, the witness said