SECTION 6.-FRAUD AND UNDUE INFLUENCE 14

WILKINSON v. JOUGHIN.

(High Court of Chancery, 1866. L. R. 2 Eq. 319.)

William Thompson, who died in July, 1864, by his will dated the 20th of May, 1864, devised and bequeathed all his real and personal estate to the plaintiff and the defendant Joughin, whom he also appointed executors, upon trust "to permit my wife, Adelaide, to receive from my death the net annual income thereof during her life." And after her death the testator directed his trustees to sell his real estate, and to convert and get in his personal estate, and to invest the moneys to arise in trust for the benefit of his children; but if no child of his should attain the age of twenty-one, or be married, then upon trust to pay certain legacies; and as to the residue, "In trust for my stepdaughter, Sarah Ward, for her absolute use. But in

In re Brush's Will, 35 Misc. Rep. 689, 72 N. Y. Supp. 421 (1901); in Spiritualism and Christian Science, see Trubey v. Richardson, 224 Ill. 136, 79 N. E. 592 (1906).

For discussions of mental capacity in general, see 5 Prob. Rep. Ann. 382, note; Id., 224, note; 2 Prob. Rep. Ann. 352, note; 63 Am. St. Rep. 94-99, note. On aversion to relatives as affecting mental capacity to make a valid will, see 117 Am. St. Rep. 582, note. And see Fulton v. Freeland, 219 Mo. 494, 118 S. W. 12 (1909). On suicide as evidence of testamentary incapacity, see 24 L. R. A. 577, note; 4 Wigmore on Evidence, § 2500. On drunkenness and morphin. ism as affecting testamentary capacity, see 39 L. R. A. 220, note; Id., 262, note; 6 Prob. Rep. Ann. 200, note; 2 Am. Prob. Rep. 526, note. On monomania as affecting testamentary capacity, see 1 Prob. Rep. Ann. 377, note. See, also, Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405 (1908).

14 "Lord Cranworth appears * * * to have regarded fraud as a species of undue influence. It is a mere question of terms; but by the rules of pleading established in this court since December, 1865, fraud, which includes misrepresentation, is the subject of a separate plea, and undue influence as a term used in a plea in this court raises the question of coercion, and that only." Lord Penzance in Parfitt v. Lawless, L. R. 2 P. & D. 462, 470, 471 (1872).

"In strictness, 'undue influence' and 'fraud' are distinguishable. In one case the mind of the testator is so overmastered that another will is substituted for his own. In the other he is in a sense a free agent, but is deceived into acting upon false data [citations]. But more often than otherwise it is a mere question of terms. Something sinister is involved, which perverts the testator's will by overcoming his power truly to express his real desires." Burch, J, in Ginter v. Ginter, 79 Kan. 721, 735, 736, 101 Pac. 634, 640, 22 L. R. A. (N. S.) 1024 (1909). See, also, In re Snowball's Estate (Cal.) 107 Pac. 598 (1910). "There is no doubt that undue influence may be exerted upon a testator, either by fraudulent means or devices or by physical or moral coercion practiced upon him without any actual deception." Sheldon, J., in Whitcomb v. Whitcomb (Mass.) 91 N. E. 210 (1910).

For discussions of undue influence as affecting the validity of wills, see 21 Am. St. Rep. 94, note; 31 Am. St. Rep. 670, note; 6 Prob. Rep. Ann. 300, note; 5 Am. Prob. Rep. 589, note. On the admissibility of declarations of testator, not made at the time of the execution of the will, on questions of undue influence, see notes in 5 Am. & Eng. Ann. Cas. 608, and in 10 Am. & Eng. Ann. Cas. 600.

case she shall die without leaving issue, upon trust to pay the same moneys to John Wilkinson and my cousin, Anne Hammond, in equal shares. I direct that my wife shall out of the income of my said estate maintain, educate, and bring up my children until the age of twentyone years (but my trustee shall not be obliged to see this direction fulfilled), and that she shall receive and enjoy such income as her separate estate, without the control or interference of any future husband, and her receipt to be, notwithstanding coverture, an effectual discharge for the same."

The testator left no issue him surviving. The bill alleged that on the 15th of October, 1849, Thomas Ward and Adelaide Ward (then Rowntree) were married at Great Grimsby, and that the defendant Sarah Ward was a child of that marriage; and that on the 20th of May, 1863, the defendant Adelaide Ward and the testator went through the ceremony of marriage at Liverpool-the defendant Adelaide Ward having represented herself to the testator as, and he having believed her to be, a widow-the defendant Thomas Ward, her husband, being then, and in March, 1865, when the bill was filed, alive. The plaintiff submitted to the judgment of the court, whether the defendant Adelaide Ward, or the defendant Thomas Ward, her husband, in her right, could take any interest under the will; and also what interest (if any) the defendant Sarah Ward took under it; and prayed that the trusts might be performed by the court, and for a declaration as to the rights of all persons interested under the will, and for an account and inquiries. The evidence, in the view taken of it by the court, sustained. the conclusion that the misrepresentation by Adelaide Ward was wilful.

Sir JOHN STUART, V. C. In my opinion the bequest in favor of Adelaide Ward is void. She has sworn in her answer that which has been distinctly disproved. The evidence shows that she imposed in a gross manner upon the testator. Therefore, there must be a declaration to the effect that the bequest to Adelaide Ward, the pretended wife of the testator, is wholly void, and then there must be the usual decree for administration.

The right of the infant, Sarah Ward, seems to me very clear. An attempt has been made to show that inasmuch as the testator was defrauded by the woman whom he believed to be his wife, and was, through that fraud, induced to believe that her child was his stepdaughter, the bequest to her wholly fails. But in the case referred to of Kennell v. Abbott, 4 Ves. 802, Lord Alvanley took care to distinguish between the cases of an innocent and a fraudulent legatee, and in my opinion there is no warrant for saying, where the testator knew this infant legatee personally, and intended to benefit her personally, that the language of the will is not a sufficient description. Sarah Ward, therefore, is entitled under the will, but I have some difficulty in saying that she is absolutely entitled, as there is a gift over in case she shall die under twenty-one years of age, and without issue.

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.15

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 character 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 precedent, 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 v. Troutman, 53 N. C. 304 (1860), the testator, a white man, being induced by his housekeeper, a white 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 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

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 evidence 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.

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 Ill. 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.