Declare that the gift to Sarah Ward is valid, and the question, whether absolutely or not, will be left open until the hearing on further consideration.16 15 "But upon general principles I am of opinion it would be a violation of every rule that ought to prevail as to the intention of a deceased person, if I should permit a man availing himself of that character of husband of the testatrix, and to whom in that character a legacy is given, to take any part of the estate of a person whom he so grossly abused, and who must be taken to have acted upon the duty imposed upon her in that relative character. I desire to be understood not to determine that, where from circumstances not moving from the legatee himself the description is inapplicable, as where a person is supposed to be a child of the testator, and from motives of love and affection to that child supposing it his own, he has given a legacy to it, and it afterwards turns out that he was imposed upon, and the child was not his own, I am not disposed by any means to determine that the provision for that child should totally fail; for circumstances of personal affection to the child might mix with it, and which might entitle him, though he might not fill that charac ter in which the legacy is given. My decision, therefore, totally avoids such a point. Neither would I have it understood that if a testator, in consequence of supposed affectionate conduct of his wife, being deceived by her, gives her a legacy, as to his chaste wife, evidence of her violation of her marriage vow could be given against that. It would open too wide a field. But this decision steers clear of that point. This is a legacy to her supposed husband and under that name. He was the husband of another person. He had certainly done this lady the grossest injury a man can do to a woman; and I am called upon now to determine whether the law of England will permit this legacy to be claimed by him. Under these circumstances I am warranted to make a prece dent, and to determine that wherever a legacy is given to a person under a particular character, which he has falsely assumed, and which alone can be supposed the motive of the bounty, the law will not permit him to avail himself of it; and therefore he cannot demand his legacy." Sir Richard Pepper Arden in Kennell v. Abbott, 4 Ves. 802, 808, 809 (1799). But see Wenning v. Temple, 144 Ind. 189, 41 N. E. 600 (1895). Where the testator knows that his "wife" has a first husband living and undivorced, the gift to her as wife is good. In re Wagstaff, [1907] 2 Ch. 35, [1908] 1 Ch. 162. So where testatrix knows that her "husband" has a first wife living. In re Will of Donnely, 68 Iowa, 126, 26 N. W. 23 (1885); Moore v. Heineke, 119 Ala. 627, 24 South. 374 (1898). See, also, Meluish v. Milton, L. R. 3 Ch. Div. 27 (1876), where the lower court thought the testator had a suspicion, if not information, that the woman's husband was living. Compare Baker's Will, 2 Redf. Sur. 179 (N. Y., 1876). See, also, post, p. 306, note. In Howell & Troutman, 53 N. C. induced by housekeeper, 30 (1860), the testator, a white man, being woman, to believe that the latter's mulatto child was his, bequeathed $250 to the housekeeper, provided she would look after testator's widow, and gave the residue of his estate to the child, with a gift over if the child should die without lawful children or child. The trial court charged the jury that there was no evidence of such influence as would Invalidate the will, and the will was probated. In sustaining the action of the trial court, the upper court said: "Supposing that he did believe the child was his, and that the mother of it told him so; there is not the slightest testimony to show that she ever asked him to make a will in favor of her and the child, or that she knew, before the will was made, that he intended to make one, or, afterwards, that he had made it. At most, it is said that she made him believe that he had begotten a child by her, which everybody but himself could see was a mulatto. Surely that, at alone cannot destroy a will which the mother is not shown to have had the slightest agency in procuring. The truth is that the old man, being childless by his wife, took a strange fancy to the child of his housekeeper, and, whether it were his own or not, he had a father's love for it, and our law imposes no prohibition upon a man to prevent him from bestowing his property upon the object of his affection." Battle, J., in Howell v. Troutman, 53 N. C. 304, 307, 308 (1860). But see Ex parte Wallop COST. WILLS-3 * AB FRAUD CFD, D LAST WILLS AND TESTAMENTS. (Part 1 not the second will which was same as the first, which was answered in the affirmative. It be GROSS, J. It seemed to be admitted at the bar that evidence may given to shew that one paper was substituted for another, and that I think is sufficient to decide this case. For the evidence proposed to be given was this: That when the testator asked for a duplicate of his former will the persons about him substituted another instead of it. LAWRENCE, J., declared himself of the same opinion." Rule absolute. WINGROVE v. WINGROVE. (High Court of Justice, Probate Division, 1885. 11 P. D. 81.) The plaintiff as a legatee propounded a will dated the 15th of September, 1869, of Elizabeth Wingrove, late of 87 Long Lane, West Smithfield, and alleged that a codicil dated the 9th of October, 1880, which revoked some of the gifts to him, was procured by the undue influence of the defendants. The defendants in the statement of defence denied that the codicil was procurd by undue influence, and 4 Bro. C. C. 90 (1792), and Clark v. Fisher, 1 Paige (N. Y.) 171, 19 Am. Dec. 402 (1828). Compare the holding that undue influence exerted by a mother may vitiate a will in favor of her child. Cheney v. Goldy, 225 III. 394, 80 N. E. 289, 116 Am. St. Rep. 145 (1907). Compare, also, Coghill v. Kennedy, 119 Ala. 641, 24 South. 459 (1898). 16 The statement of facts is abbreviated. claimed probate of it together with the will. The action had been tried by a common jury, who found a verdict for the plaintiff, which was subsequently set aside and a new trial ordered by a special jury. Sir JAMES HANNEN (President), in addressing the jury said: Gentlemen of the jury, I must ask your particular attention to the exposition which I am about to give you of the law upon this subject of undue influence, for I find, from now a long experience in this court, that there is no subject upon which there is a greater misapprehension. The misapprehension to which I have referred arises from the particular form of the expression. We are all familiar with the use of the word "influence"; we say that one person has an unbounded influence over another, and we speak of evil influences and good influences; but it is not because one person has unbounded influence over another that therefore when exercised, even though it may be very bad indeed, it is undue influence in the legal sense of the word. To give you some illustrations of what I mean, a young man may be caught in the toils of a harlot, who makes use of her influence to induce him to make a will in her favor, to the exclusion of his relatives. It is unfortunately quite natural that a man so entangled should yield to that influence and confer large bounties on the person with whom he has been brought into such relation; yet the law does not attempt to guard against those contingencies. A man may be the companion of another, and may encourage him in evil courses, and so obtain what is called an undue influence over him, and the consequence may be a will made in his favor. But that again, shocking as it is, perhaps even worse than the other, will not amount to undue influence.17 To be undue influence in the eye of the law there must be-to sum it up in a word-coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person's favor, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence. The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, 17 Compare remarks by Lord Cranworth, C., in Boyse v. Rossborough, 6 H. L. Cas. 2, 47-48 (1857). See, also, Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, 22 L. R. A. (N. S.) 1024 (1909). "Influence may be degrading and pernicious, and yet not undue influence in the eye of the law. The leading authority on the subject is the judgment of Cranworth, L. C., in Boyse v. Rossborough." Lord Macnaghten, in Baudains v. Richardson, [1906] A. C. 169, 184. FRAUD so INDUCEMENT FRAUD INCEPTION LAST WILLS AND TESTAMENTS. (Part 1 DOE ex dem. SMALL v. ALLEN. (Court of King's Bench, 1799. 8 T. R. 147.) Ejectment. Evidence in regard to the execution of a will was offered by the defendant and rejected. A verdict was given for the plaintiff, with liberty to the defendant to move for a new trial in case the evi-` dence ought to have been received. A rule to show cause was obtained.16 Lord KENYON, C. J. I think that this evidence ought to have been received. The testator having made one will, which (is admitted) was a good will, and being pressed by certain persons around him to make another will, asked in the presence of credible witnesses whether or not the second will which was brought to him to be executed was the same as the first, which was answered in the affirmative. It turns out that it was different from the first will, and the question here is whether or not that evidence ought to be received. Our decision will not in the least tend to repeal the Statute of Frauds, or contradict the case of Selwin v. Browne [Cas. temp. Talb. 240 (1734)]. I agree that the contents of a will are not to be explained by parol evidence; but, notwithstanding that act, evidence may be given to shew that a will was obtained by fraud. And the effect of the evidence offered in this case was to shew that one paper was obtruded on the testator for another which he intended to execute. GROSS, J. It seemed to be admitted at the bar that evidence may be given to shew that one paper was substituted for another, and that I think is sufficient to decide this case. For the evidence proposed to be given was this: That when the testator asked for a duplicate of his former will the persons about him substituted another instead of it. LAWRENCE, J., declared himself of the same opinion. Rule absolute. نات WINGROVE v. WINGROVE. (High Court of Justice, Probate Division, 1885. 11 P. D. 81.) The plaintiff as a legatee propounded a will dated the 15th of September, 1869, of Elizabeth Wingrove, late of 87 Long Lane, West Smithfield, and alleged that a codicil dated the 9th of October, 1880, which revoked some of the gifts to him, was procured by the undue influence of the defendants. The defendants in the statement of defence denied that the codicil was procurd by undue influence, and 4 Bro. C. C. 90 (1792), and Clark v. Fisher, 1 Paige (N. Y.) 171, 19 Am. Dec. 402 (1828). Compare the holding that undue influence exerted by a mother may vitiate a will in favor of her child. Cheney v. Goldy, 225 III. 394, 80 N. E. 289, 116 Am. St. Rep. 145 (1907). Compare, also, Coghill v. Kennedy, 119 Ala. 641, 24 South. 459 (1898). 16 The statement of facts is abbreviated. report) admitted that it might be otherwise if the testator had had one paper prepared, and then another had been substituted without his knowledg for there he would have made no will at all. Here how ever the testator knew what paper he was signing, but neglected to inform himself of the contents. It would be contrary, they argue to the S of F to admit evidence of the variance between the testator's belief as to what the will contained, and t e written will. And the existenceof fraud could make no differace. |