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arise against the volition or knowledge of the testator; and if, in this regard, the rules of law are to correspond with those of reason, such presumption, in the absence of rebutting proof or explanation, should justify the finding of a jury that undue influence existed. When evidence, therefore, either of actual participation in the procurement of a will or of the existence of a confidential relation is offered, the ordinary presumption that the instrument was executed freely, and without undue or improper influence, may or may not in fact have so given place or been overcome in the minds of the jury, that evidence in rebuttal or explanation would be required to dispel the inference of undue influence. This can only be determined by the verdict. The proponents having assumed the responsibility of deciding whether to offer such evidence, and the trial being closed, the jury should be guided to a careful and wellgrounded verdict by a charge from the court, in which the principles of law are fitted and adapted to the evidence adduced.

The doctrine above stated is in accordance with the former decisions of this court: St. Leger's Appeal, 84 Conn. 434, 450; 91 Am. Dec. 735; Drake's Appeal, 45 Conn. 9; and the language of Judge Pardee, delivering the opinion of the court in Dale's Appeal, 57 Conn. 143.

There is error in the judgment appealed from, and a new trial is ordered.

PRESUMPTION OF UNDUE INFLUENCE. — In regard to wills, it may be stated as a general rule that the existence of a confidential relation between the testator and a legatee, such as guardian and ward, attorney and client, physician and patient, or religious adviser and layman, gives peculiar opportunities outside of the family relation for unduly influencing the mind of a testator, and creates a grave suspicion that such influence was exercised; so that whenever it appears that the will was executed through the intervention of one occupying such favored relation to his especial advantage, the presumption of undue influence arises, and the suspicion must be put to rest by evidence adduced to sustain the validity of the will by showing it to be the free and voluntary act of the testator.

The rule is thus announced in a late case: "When confidential relations exist between two persons, resulting in one having an influence over the other, and a business transaction takes place between them resulting in a benefit to the person holding the influential position, the law presumes everything against the transaction, and casts the burden of proof upon the person benefited, to show that the confidential relation has been, as to that transaction at least, suspended, and that it was fairly conducted as between strangers": Pironi v. Corrigan, 47 N. J. Eq. 100.

The existence of confidential relations between the testator and legates or devisee excites the suspicion and jealousy of the court, and casts upon the

proponent of the will the duty of showing by affirmative evidence the testator's capacity, volition, and free agency: Daniel v. Hill, 52 Ala. 430; Moore v. Spier, 80 Ala. 129; Jones v. Roberts, 37 Mo. App. 163; Herster v. Herster, 116 Pa. St. 612; Gay v. Gillilan, 92 Mo. 250; 1 Am. St. Rep. 712. Thus where the relation of guardian and ward existed at the time of the execution of a gift or devise from one to the other, and the parties were so situated with reference to each other that undue influence could have been used, the law presumes that it was used, and the one seeking to derive advantage from the gift or devise must rebut the presumption by competent and convincing proof: Meek v. Perry, 36 Miss. 190; Garvin v. Williams, 44 Mo 465; 100 Am. Dec. 314, and note 324; Budwell v. Swank, 84 Mo. 455, where a bequest to the wife of the guardian by the ward was held to be within the operation of this rule.

Again, where a person makes a will in favor of his priest, or spiritual or religious adviser, to the exclusion of the heirs and natural objects of the testator's bounty, the law presumes undue influence, and some proof besides the making of the will is required, in order to sustain it: Marz v. McGlynn, 88 N. Y. 357; Schofield v. Walker, 58 Mich. 96. So where a convert to spiritualism, whose life was dominated thereby, and who was influenced by the person through whom he had embraced that belief to become alienated from his wife and child, and to make a will in favor of his adviser, these facts are sufficient to raise the presumption of undue influence: Thompson ▼ Hawks, 14 Fed. Rep. 902. But where a testatrix, by will executed five days before her death, gave the bulk of her estate to her spiritual adviser, to the exclusion of her sisters, but there was no direct evidence of undue influence, and the testatrix had formerly expressed an intention to omit her sisters from her will, it was decided that the presumption of undue influence did not arise: Figueira v. Taafe, 6 Demorest, 166. An attorney who, being the testator's legal adviser, draws a will containing a legacy to himself must show affirmatively an absence of undue influence: Post v. Mason, 26 Hun, 187. So in Riddell v. Johnson, 26 Gratt. 152, it is determined that where an attorney writes a will under which he takes a benefit, it is a circumstance to excite the suspicion of the court, and to call upon it to be vigilant and jealous in examining the evidence in support of the will, which ought not to be pronounced valid until the suspicion is removed, and it is satisfactorily established to be the free and voluntary act of the testator. Thus where the testator was an aged man, and it appears that his mind, originally strong. was impaired, and that the will was prepared by his confidential adviser, who was made a devisee, to the deprivation of legatees named in a former will, the burden of proof is on such confidential adviser and beneficiary to show affirmatively that at the time of the execution of the last will the testator was informed and had knowledge of the approximate amount of his estate, and the proportionate amount thereof which would pass to such devisee thereby, and that the testator's mind was free from undue influence exercised by such adviser: Yardley v. Cuthbertson, 108 Pa. St. 395; 56 Am. Rep. 213. Where the testator is aged, the fact that a person whose advice has been sought and taken by the testator receives a large benefit under the will raises a presumption of undue influence, and the burden rests on the beneficiary to rebut the presumption affirmatively, and show mental capa. city and the absence of undue influence: Wilson v. Mitchell, 101 Pa. St. 495.

While the mere fact that a will was written by a person who takes a benefit under it is not sufficient to invalidate it, still if the bequest to him is large, and he is a stranger to the testator's blood, the will will be scrutinized

with suspicion, and proof of due execution and testamentary capacity alone will not uphold it, and the beneficiary will be required to show clearly and satisfactorily that the testator knew its contents; and while undue influence such as will vitiate the will must, in a measure, destroy the testator's free agency, and cause him to dispose of his property contrary to his desire, yet where a confidential relation, such as principal and agent, existed between the testator and the beneficiary under the will, and continued to the testator's death, the presumption of undue influence arises, and affirmative proof is required to overcome it: Lyons v. Campbell, 88 Ala. 462.

If a testator is under guardianship as a non compos mentis, he is prima facie incapable of making a will, and a presumption of undue influence arises against his guardian, who is also made a legatee and executor under such will, and it is incumbent on the latter to show affirmatively, beyond a reasonable doubt, that the testator had both mental capacity and freedom of will and action, such as are requisite to render a will legally valid: Breed v. Pratt, 18 Pick. 115. Accordingly, where a testator seventy years of age had been an habitual drunkard for fifty years, and his appetite for drink was so uncontrollable as to amount to a burning passion, and several years prior to his death he had inherited some money, at which time a guardian of his person and property was appointed, and he subsequently went to live with his brother, who offered him a home so long as he should live, with full and free consent and opportunity to drink when and what he pleased, and who resisted the efforts of his guardian to remove him, and that the testator had been drinking on the day that he executed his will making his brother sole legatee, these facts are sufficient to raise a presumption of undue influence, and to justify the jury in finding that it was exercised: Will of Slinger, 72 Wis. 22.

Where a will is unnatural in its provisions, and inconsistent with the duties and obligations of the testator to the members of his family, the presumption of undue influence is raised, and the burden of proof is thrown on the proponents of the will to give at least some reasonable explanation of its unnatural character, and to show that it was not the result of mental defect or perversion: In re Budlong, 18 Civ. Proc. Rep. 18.

Accordingly, where a testator, without apparent canse, virtually disinherits four out of six of his children, or their descendants, giving to two sons substantially all his property, such gross inequality in the disposition of his estate places on the proponents of the will the burden of proof to show its validity and freedom from their undue influence: Gay v. Gillilan, 92 Mo. 250; 1 Am. St. Rep. 712. And again, where the estate was large, and was bestowed upon one daughter, to the exclusion of other children having equal claim upon the bounty of the testator, the favored child being alone present at the time of the execution of the will, and the transaction kept secret from the other children, while the testator sustained relations of confidence toward the beneficiary, and during such relation became imbued with a groundless suspicion and aversion of a son with whom such testator had formerly lived, and who had been misled by him, while it also appeared that the testator, during his last sickness, made large donations to the legatee named in the will, and one day before his death canceled a mortgage held against such legatee, all of which was kept secret from the other children of the testator, these facts raise a presumption of undue influence: Greenwood v. Cline, 7 Or. 18. If a will was copied from a writing made by one who, by its terms, was to receive a large part of the testator's estate, to the exclusion of his heirs, and the testator was aged, infirm, and unable to read, the presumption

undue influence arises, and proof alone of the formal execution of the will does not entitle it to probate. The beneficiary must also show that the testator correctly understood the contents of the paper signed by him: Kelly v. Settegast, 68 Tex. 13. In Byard v. Conover, 39 N. J. Eq. 244, where a single man seventy-two years of age, while in a dying condition, signed a will giving all his property to his housekeeper, who had lived with him for a number of years, and who had prepared the paper four years previously, and had repeatedly requested him to sign it, and none of the testator's brothers or sisters were present at the formal execution of the will, or informed thereof, although one brother lived in an adjoining house, it was decided that these facts raised a presumption of undue influence and want of capacity in the testator to execute his will, and it was accordingly refused probate. If a testator, after making his will, became an inmate of the house of his brother. in-law, and being feeble and decrepit, was detained there against his will, plied with false statements regarding the beneficiaries in his will, and thus induced to alter it in favor of other persons, the presumption of undue influence is raised, and the burden of proof is on those claiming under the will to show that it was the free act of the testator: Swenarton v. Hancock, 22 Hun, 38.

The mere fact that the person writing the will is made a legatee under it, while it is a suspicious circumstance, does not, it seems, alone raise any legal presumption of undue influence. Thus the fact that a will was drawn by a favored legatee does not, of itself, invalidate it: Rusling v. Rusling, 36 N. J. Eq. 603. Nor will the fact that the draughtsman of the will was made the executor, and that his relatives received a large part of the property devised, raise any presumption of undue influence over the testator: Carter v. Dizon, 69 Ga. 82; Waddington v. Busby, 45 N. J. Eq. 173. Nor does the mere fact that the draughtsman of a will, who has been the testator's attorney for a long time, is made a legatee raise such presumption: Post v. Mason, 91 N. Y. 539; 43 Am. Rep. 689. Nor is the presumption raised by the facts that it was drawn by the confidential friend of the testator and that his wife was a beneficiary: Montague v. Allan, 78 Va. 592; 49 Am. Rep. 384. The fact that the sole beneficiary under a will was the confidential busi• ness adviser of testatrix several years before her death does not cast the burden on him of proving the will to be the free act of the testatrix, where there is no evidence that such beneficiary took advantage of his position or relation, or that he participated in the preparation or execution of the will, or even knew of its existence and contents until some time subsequent to its execution: Wheeler v. Whipple, 44 N. J. Eq. 141.

The presumption of undue influence does not arise from business or social relations existing between the testator and legatee or devisee in all cases. Therefore the fact that the principal beneficiary was a partner of the testa tor at the time of his death, and for many years before, is not sufficient, of itself, to raise the presumption: Estate of Brooks, 54 Cal. 471. Nor does the fact that the will was made in favor of one with whom the testatrix had not formerly been on friendly terms raise the presumption: Estate of McDonald, 130 Pa. St. 480.

The rule that the presumption of undue influence does not arise in all cases is especially strong in regard to family relations existing between parent and child, husband and wife, etc. Lawful influence, such as arises from legitimate or social relations, must be allowed to produce its natural results upon last wills; and there can be no presumption of its unlawful exercise merely from the fact that it may be known to have existed, and may, to some extent, have operated on the testator's mind. A will will not be con


demned on account of inequalities in testamentary dispositions produced by such influence. It is only when it is exerted over the very act of devis. ing that it is presumed to be vicious and undue: Sechrest v. Edwards, 4 Met(Ky.) 163. There is no legal presumption against the validity of any provision which a husband may make in his wife's favor, for she may justly influence the making of her husband's will for her own benefit or that of others, so long as she does not act fraudulently, or extort benefits from her husband when he is not in condition to exercise his faculties as a free agent: Latham v. Udell, 38 Mich. 238. Accordingly, the circumstance that the testator's wife urged upon hin the propriety of leaving his property to her does not constitute undue influence, to vitiate the will: Hughes v. Murtha, 32 N. J. Eq. 288. And the mere fact that the will of the husband is changed to gratify the wishes of the wife does not raise the presumption of undue influence on her part: Rankin v. Rankin, 61 Mo. 295. When a husband had make two wills, dividing his property between his wife and his sister, and a few days subsequent to the making of the second will, and after several days of his last illness, he made another will, revoking the former ones, without apparent reason, and leaving all his property to his wife, this, in the absence of any other evidence of undue influence, will not raise the presumption of such influence so as to require the submission of that question to the jury: Will of Nelson, 39 Minn. 204.

In support of this rule, it was said in Small v. Small, 4 Me. 220-423, 16 Am. Dec. 253, that if a wife, by her virtues, has gained such an ascendancy over her husband, and has 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 specially exerted to procure a will of such a kind as to be peculiarly acceptable to her, and to the prejudice and disappointment of others.

Where the husband of a testatrix asked an attorney to come to his dwelling, as his wife wanted him to draw her will, and the attorney being busy, he wrote a will in accordance with statements made by the husband as to what his wife wished the will to contain, and subsequently took the will to the wife, who was ill, and reading it to her, asked her if it contained what she wished, and receiving an answer in the affirmative, she then executed the will in due form, giving all her property to her husband, with direction to give their grandson, their only descendant, a collegiate education, though the testatrix was over seventy years of age, it was decided that these facts were not sufficient to raise a presumption of undue influence on the part of the husband: Armstrong v. Armstrong, 63 Wis. 162. The fact that the wife of a testator had both opportunity and motive, and that the will makes provision for her beyond what the law would have given her, creates no presumption of undue influence, nor does the additional fact that the will was executed six weeks after the testator had drawn a radically different will, in accordance with a draught submitted to him by his father: Mason v. Williams, 53 Hun, 398.

Mere bad treatment of her children, exerted or exercised by the wife many years previous to the making of his will by the husband, although coupled with their disinheritance, does not necessarily raise the presumption of undue advantage taken by the wife; but in order to have that effect, it must be

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