months thereafter he married Margaret Varian. When the second wife came into the family, she found four children, all under 18 years of age. Almost from the beginning the family life was unhappy. She evidently took a dislike to the children, and soon began a systematic effort to drive them from the home. In this she was ultimately successful. The children were frequently whipped by the father at her request. They were not allowed the food which was supplied to the other members of the family. They were deprived of proper and necessary clothing and schooling and seem to have been generally illtreated. One of the boys returned home on two occasions and was refused admission by his stepmother. Another farmed the land for two. years, but finally left because of trouble with Margaret. A few years later the father sent for him, and he made another attempt to run the farm, with the same result. She disliked them, and was determined that they should not be at home with their father. It clearly appears that the boys were driven from home by the continuous ill treatment of Margaret Tyner. During the last illness of John Tyner his wife. would not permit reports of his condition to be sent to his absent children, and she prevented the news of his death reaching them until it was too late for them to attend the funeral. There is no evidence that the children were to blame, and in view of the age and relation of the parties it should not be presumed. John Tyner was an illiterate man, unable to read or write. He seems to have had some natural capacity for acquiring and retaining money, which he concealed about the premises in old tomato cans. The testimony shows that Margaret was much the stronger character, and generally had her way about household and business affairs. She had some education, and her husband, as is usual in such cases, overestimated the importance. of a little book learning. He was so deaf that it was necessary for her to be with him when he transacted any business and do most of the talking. He seems to have relied largely upon her for his information and trusted to her judgment. She was persistent, energetic, and resourceful. Like her husband, she was in the habit of drinking, and they frequently went to town and got drunk together.

The property and its final disposition seems to have been continually in her mind, and from the first she determined that the children should never have the land. She told the neighbors that the land had been promised to her brother's children. She kept everlastingly talking to her husband about the worthlessness of the boys, and accused them of being lazy, thieving, and shiftless. Her purpose, it may fairly be assumed, was to so prejudice his mind against them that he would cast them off and leave his property to others of her choosing. She told the neighbors that the children should not have the land. When the will was made Margaret was with the testator, making suggestions and doing part of the talking. After it was made she expressed her approval of its contents, and from that time until the death of John Tyner she exerted her influence to prevent him from becoming recon

ciled to the children and changing the will. She said "the will was made the way she wanted it, and was not going to be changed." It is apparent that she earnestly desired to influence her husband in the making of his will, and that she was induced to do this by her dislike of the children and her desire to have the land go to her own relatives. She was also to some extent personally benefited by the will, as she received all the law would give her, and in addition thereto she was given complete control over all the personal property during her life.

But the ultimate question is whether her influence actually induced the will. It is certain that it was exerted for the purpose of controlling the making of the will and the disposition of the property. John Ty ner stated to disinterested parties that Margaret would not permi him to leave the land to the children. He told the witness Flannery that he gave the

343 34c

7

1

th..
on Carung between the legatee and
the testator, the claim of the appellant that the burden was upon the
respondent to show by clear and satisfactory evidence that the testator
was mentally competent to make his will and that its execution was
not procured by undue influence and fraud is, as it must be, conceded
by the respondent."

Judgment reversed, and new trial ordered.23

23 "It is impossible to define or describe with precision and exactness what is undue influence, what the quality and the extent of the power of one mind over another must be to make it undue, in the sense of the law, when exerted in making a will. Like the question of insanity, it is to some degree open and vague, and must be decided by the application of sound principles and good sense to the facts of each given case. Lynch v. Clements, 24 N. J. Eq. 431 (1874). But the influence exercised over a testator, which the law regards as undue or illegal, must be such as to destroy his free agency; but no matter how little the influence, if the free agency is destroyed, it vitiates the act which is the result of it. The undue influence is not often the subject of direct proof. It can be shown by all the facts and circumstances surrounding

(Court of Appeals of New York, 1884. 95 N. Y. 516.)

Appeal from a judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made January 23, 1883, which affirmed a decree of the surrogate of Ulster county, admitting to probate the will of Eliza M. Smith, deceased.

The proponent, William Lawton, was the chief beneficiary under the will of September 13, 1880, propounded for probate. He was a lawyer, he drew the will, and had been the legal adviser of the decedent, for whom he had drawn several wills prior to the one in question. The will was drawn and executed on the day of its date, during the last sickness of the testatrix, who died five days thereafter. She had no heirs or next of kin, and at the time of her death was more than 75 years of age. The probate of the will was contested by Eliza J. Hamilton on the ground of the incapacity of the testatrix and of fraud and undue influence. The contestant was a legatee in three wills executed by the testatrix, the first dated February 13, 1878, the second July 13, 1880, and the third July 18, 1880. By the first and second wills she was made residuary legatee. By the third she was given a legacy of $3,000, and by the same will other legacies to the amount of $2,500. The proponent was made residuary legatee. The wills of July 13, 1880, and July 18, 1880, were drawn by the proponent. By the will in controversy the testatrix gave to St. John's Church, Kingston, a legacy of $500; to Mrs. Josephine Peters, $500; to George L. Lawton, the son of proponent, $2,000; to Walter S. Hamilton, her stock in the Lake Shore Railroad; and to the proponent (whom she made executor) the residue of her estate.

ANDREWS, J. Undue influence, which is a species of fraud, wher relied upon to annul a transaction inter partes, or a testamentary dis position, must be proved, and cannot be presumed. But the relation in which the parties to a transaction stand to each other, is often a material circumstance and may of itself in some cases be sufficient to raise a presumption of its existence. Transactions between guardian and ward, attorney and client, trustee and cestui que trust, or persons one

the testator, the nature of the will, his family relations, the condition of his health and mind, his dependency upon and subjection to the control of the person supposed to have wielded the influences, the opportunity and disposition of the person to wield it, and the acts and declarations of such person." Earl, J., in Rollwagen v. Rollwagen, 63 N. Y. 504, 519 (1876). See In re Hoffmann's Estate, 151 Mich. 595, 115 N. W. 690 (1908).

"Where there is evidence tending to show senile dementia, the jury might| be justified in inferring undue influence from circumstances which would not otherwise justify such an inference; but the fact of exercising undue influ ence must not be left to mere inference from opportunity, interest, and mental weakness." McClain, J., in Re Overpeck's Will (Iowa) 120 N. W. 1044, 1046 (1909).

24 Part only of the statement of facts and of the opinion is given.

of whom is dependent upon and subject to the control of the other, are illustrations of this doctrine. Dealings between parties thus situated, resulting in a benefit conferred upon, or an advantage gained by, the one holding the dominating situation, naturally excite suspicion, and when the situation is shown, then there is cast upon the party claiming the benefit or advantage, the burden of relieving himself from the suspicion thus engendered, and of showing either by direct proof or by circumstances that the transaction was free from fraud or undue influence, and that the other party acted without restraint and under no coercion, or any pressure direct or indirect, of the party benefited. This rule does not proceed upon a presumption of the invalidity of the particular transaction, without proof. The proof is made in the first instance when the relation and the personal intervention of the party claiming the benefit is shown. The law is not so impracticable as to refuse to take notice of the influence of greed and selfishness upon human conduct, and in the case supposed it wisely interposes by adjusting the quality and measure of proof to the circumstances, to protect the weaker party and, as far as may be, to make it certain that trust and confidence have not been perverted or abused. Nesbit v. Lockman, 34 N. Y. 167; Cowee v. Cornell, 75 N. Y. 91, 31 Am. Rep. 428; Marx v. McGlynn, 88 N. Y. 357 [1882].

The rule to which we have adverted seems, however, to be confined to cases of contracts or gifts inter vivos, and does not apply, in all its strictness at least, to gifts by will. It has been held that the fact) that the beneficiary was the guardian, attorney, or trustee of the decedent does not alone create a presumption against a testamentary gift, or that it was procured by undue influence. Coffin v. Coffin, 23 N. Y. 9, 80 Am. Dec. 235; Post v. Mason, 91 N. Y. 539, 43 Am. Rep. 689; Parfitt v. Lawless, L. R. 2 Pro. & Div. 462. The mere fact, therefore, that the proponent was the attorney of the testatrix did not, according to the authorities cited, create a presumption against the validity of the legacy given by her will. But taking all the circumstances together the fiduciary relation, the change of testamentary intention, the age, and mental and physical condition of the decedent, the fact that the proponent was the draftsman and principal beneficiary under the will and took an active part in procuring its execution, and that the testatrix acted without independent advice—a case was made which required explanation, and which imposed upon the proponent the burden of satisfying the court that the will was the free, untrammeled, and intelligent expression of the wishes and intention of the testatrix. See note to Huguenin v. Bassley, 2 W. & T. Leading Cas. in Eq. 1156; Redfield on Wills, 515, and cases cited.25

25 There is some conflict of authority on the question of whether the rule as to gifts inter vivos should be applied to wills. See 1 Woerner's Americar Law of Admin. (2d Ed.) § 32. For the argument against applying it to wills, see Parfitt v. Lawless, L. R. 2 P. & D. 462 (1872). In Lockwood v. Lockwood, 30 Conn. 513, 522, 69 Atl. 8, 11 (1908), the court recognizes and enforces the

From Downey v. Murphy, 1 Dev & B 82,

N. C.

5 Wigmore (2nd: #2503:

from

ich was

material

s there

But those cases and the terms in which the judges deliver themselves, ary of a
are far from satisfying us, that the nature of the inquiry makes it, in a ned tatim
court of common law, the province of the judge and not the jury to stator,
determine it. The Court of Probate in England decides every question
both of law and fact, which the case presents; the capacity of the tes-
tator, in all its various gradations as perfect, doubtful and defective. nce or of
Where of the last kind, the instrument is necessarily inoperative under often
all circumstances. But where a testable capacity is found, the degree
iman).
of proof that the instrument was freely executed, and that its provisions ngle
were really assented to by the maker, must necessarily vary with the variable
degree of capacity, in order to satisfy a rational mind, that there was
is any
such free agency, knowledge and assent as the law demands. That
tribunals such as the ecclesiastical courts, constituted of a single judge,
holding the court permanently, and deciding the whole case, should, in
the course of repeated discussions of evidence of a similar kind, adopt,
for the ease of the court, and for the information of suitors, some propo-
sitions, as the measure of that proof, to be deemed sufficient or insufficient
under particular circumstances, is not surprising. To the usefulness of
such a court, such rules, as principles for the government of the judge,
are indispensable. They are requisite, both to relieve the judge from
unnecessary labor, and to exclude the suspicion and the danger of
unlimited and irresponsible discretion upon all questions of fact; which
in a permanent magistrate is intolerable. Hence, in the very able
opinions which have been delivered by the judges of those courts, are
constantly found expositions of the reasons on which the credit to be
given to the witnesses ought to rest, and on which inferences of par-
ticular facts may be rationally drawn from certain evidence; and such
reasons, and the determination to which they led in one case, are natu-
rally appealed to by counsel, and acknowleged by the court in succeed grass
ing cases. At first they may be respected only as the conclusions of erog.) 71
an able, well-instructed and experienced mind, well calculated to influ-
ence another mind to adopt the same conclusions. But they soon
acquire the authority which a succeeding judge is neither able nor will-
ing to deny to them, of being precedents. For, as has been forcibly
remarked, it is the professional tendency to repose on precedents; and
it is fortunate for the institutions of every country, that there is such a
tendency.

ue influ

be testa

ger sup ising as te, or of Imposed sed, the rmation le will."

here the cra

and that

ich may
subject
a wholly

From:
in calling upon him to explain the part he took, and the circu
that brought about the gift or obligation, the court is plainly
Parfitt v
of him an explanation within his knowledge. But in the cas
Lawless, legacy under a will, the legatee may have, and in point of fact gene
has, no part in or even knowledge of the act; and to cast upon him, o
L. R. 2
the bare proof of the legacy and his relation to the testator, the burden
P & D 462 of showing how the thing came about, and under what influence or with

what motives the legacy was made, or what advice the testator had,
professional or otherwise, would be to cast a duty on him which in
many, if not most cases, he could not possibly discharge 2A more
material distinction is this: the influence which is undue in the cases of
gifts inter vivos is very different from that which is required to set aside
a will. In the case of gifts or other transactions inter vivos it is con
sidered by the courts of equity that the natural influence which such
relations as those in question involve, exerted by those who possess it
to obtain a benefit for themselves, is an undue influence. Gifts or
contracts brought about by it are, therefore, set aside unless the party
benefited by it can show affirmatively that the other party to the
transaction was placed "in such a position as would enable him to form
an absolutely free and unfettered judgment." Archer v. Hudson, 7
Beav. 551.

The law regarding wills is very different from this. The natural
influence of the parent or guardian over the child, or the husband over
the wife, or the attorney over the client, may
obtain a will or legacent, pros
be exerted T.
thoroty understands what he is doing,
is a free agent.