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proponent of the will the duty of showing by affirmative evidence the testator's capacity, volition, and free agency: Daniel Hill, 62 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 ased, 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 rale.
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 tostator's bounty, the law presumes undue influence, and some proof besides the making of the will is required, in order to sustain it: Marx v. McGlynn, 88 N. Y. 357; Schofield v. Walker, 68 Mich. 96. So where a convert to spiritualism, whose life was dominated thereby, and who was infuenced 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 TM 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 ex. clusion of ber 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 ausence of undue influence: Post v. Mason, 26 Hun, 187. 8o in Riddell v. Johnson, 26 Gratt. 152, it is determined that whore 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 oxamining 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 fros 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 tho will was prepared by his confidential advisor, 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 too tator 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 andue influence exercised by such adviser: Yardley v. Culhbertson, 108 Pa St. 395; 66 Am. Rep. 213 Where the testator is aged, the fact that a person whose advice i has been sought and taken by the testator receives a large benefit under the will raises a presumption of andue 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 more fact that a will was written by a person who takes a beneft er der 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 dae 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 reaBonable 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 guar. dian 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 influ. ence, 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 bis 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 song 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 p andue influence arises, and proof alone of the formal execution of tho will does not entitle it to probate. The beneficiary must also show that the tes. tator 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 soventy-two years of age, while in a dying condition, signed a will give ing 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 sis. ters 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 influ. ence 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. Dicon, 69 Ga. 82; Waddinglon v. Busby, 45 N. J. Eq. 173. Nor does the mere fact that the draughtsman of a will, who has been the testator's at. torney for a long time, is made a legatee raise such presumption: Post v. Mason, 91 N. Y. 5:39; 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. Dess adviser of testatrix several years before her death does not cast the burden on bim of proving the will to be the free act of the testatrix, where there is no evidence that such beneficiary took advantage of his positioa 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 especia strong in regard to ly relations existing between parent and child, husband and wife, etc. Lawful influenoe, such as arises from legitimate or social relations, must be allowed to produce its natural results apon last wills; and there can be no presumption of its unlawful exercise merely from the fact that it may be known to have existed, aud may, to some extent, have operated on the testator's mind. A will will not be con.
AX. ST. REP., VOL. XXI.-7
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 presamed to be vicious and undue: Sechrest v. Edwards, 4 Meto (Ky.) 163. There is no legal presumption against the validity of any pro vision which a husband may make in his wife's favor, for she may justly in. fluence 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 wifo urged upon hiin 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 wifo, 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, inportunity, 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 affirınative, 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 busband: Armstrong v. Armstrong, 63 Wis. 162. The fact that the wife of a testator had both opportunity and motive, and that tho 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. Wik liams, 53 Hun, 398.
Mere bad treatment of her children, exerted or exercised by the wife many yoars previous to the making of his will by the husband, although coupled with their disinheritance, does not necessarily raise the presumption of un. due advantage taken by the wife; but in order to have that effect, it must be followed with proof showing that undae influence was acquired by her has consequenco, and that it existed at the time that the will was executed: Ting ky v. Corgill, 48 Mo. 291. The presumption that undue influence was oz. erted by a mother on the testatrix is not raised, where it appears that the latter bad been obliged, by her husband's cruelty, to leave him, and return to her mother's house, where she died, learing a will making the mother her sole legatee, and desiring her to have the care and custody of the testatrix's infant child in preferenco to the father: Will of Andrews, 33 N. J. Eq. 514.
Inequality, or even injustice, towards some of the testator's children, in the amounts given them by the will, does not raise the presumption of undue in. fluence. It is not raised by proof of interest and opportunity alone: Turnure v. Turnure, 35 N. J. Eq. 437. Nor does such presumption arise from the fact that the testator was on his death-bed, surrounded by certain of his children, who were benefited by his will, while another child, who is the con. testant, was absent: Bundy v. McKnight, 48 Ind. 503. The facts that the testatrix was eighty-one years of age at the time of the execution of the will, and that she thereby gave to her daughter, with whom she and her husband had lived for more than twenty years, a larger share of her estate than sho gave to her other daughters, although sach legatee and her husband had received compensation for taking care of the testatrix's husband, who died before her, is not sufficient to raise the presumption of undue influence by sucb daughter over the testatrix: Kise v. Heath, 33 N. J. Eq. 239. So where a mother gavo nearly all of her property to one of two sons, by will, at a time when she had resentment against the other son, because of a business transaction between them, and the son receiving the bulk of her estate was her busi. ness adviser and amanuensis, and gave instructions for the drawing of the will, and aided her in obtaining it from the attorney who drew it, it was decided that in the absence of proof of threats, restraint, or coercion of any kind, or of importunity or persuasion, inducing her to make the will, the presumption of andue influence was not raisod: Dale v. Dale, 36 N. J. Eq. 269.
The services of a friend or relative of a testator may be lawfully urged as an argument to persuade him to the giving of a legacy, without raising the presumption of undue influence. Something is due to the dictates of humanity, and it must not be said of the child who attempts to soothe the last sufferings of a parent, that he is guilty of imposition, even if the allegation is made by those who have shielded themselves from suspicion of influence by carefully abstain. ing from offices of affection: Estate of Williams, 13 Phila. 302. So mere proof of earnest solicitations on the part of such beneficiaries in procuring a will to be in their favor will not raise such presumption: Wait v. Breeze, 18 Hun, 403; since motives of natural affection and gratitude on the part of the tes. tator, and solicitations or arguments which appeal to such motives, do not constitute undue influence: Will of Jackman, 26 Wis. 104; Will of Gleespin, 26 N. J. Eq. 523; McCulloch v. Campbell, 49 Ark. 367, where it was decided that the beneficiaries under the will, having by kind offices and congenial intercourse acquired considerable influence over the testatrix, and having requested her to make provision in her will in their favor, is not sufficient to establish the presumption of undue influence.
It bas been often decided that the mere existence of an undue or improper influence operating, but not exercised by the person possessing it, upon the mind of the testator when he executes his will is not sufficient to raise a legal presumption of undue influence sufficient to invalidate the will. It is not the existence, but the exercise, of an improper influence in the very act of making the will which invalidates it. This rule is applied where illicit