Page images
PDF
EPUB

when they heard of the intended marriage, endeavored to persuade the decedent against it; they suggested that he give appellant money to buy her off; and they were allowed to testify that decedent told them (in substance) that he could not avoid it, that appellant insisted on the marriage, and even that there had been illicit relations between him and appellant. There was also testimony admitted that shortly after the marriage he was not as jovial, and was apparently not as happy as before the marriage. There was also testimony tending to show that appellant had done some dressmaking in decedent's family before the marriage, with the view, we suppose, of showing that she made some efforts to captivate the affections of the decedent. All this was seventeen years before the execution of the will, and twenty years before the codicil in which he reaffirmed the will; it was too remote in time to be admissible for any purpose; and that it was prejudicial to appellant is beyond question. There was also some testimony as to declarations and occurrences at a somewhat later period, but before decedent's removal from Illinois to California, and, if admissible at all, they are entitled to no weight in the absence of evidence, either direct or circumstantial, that undue influence was brought to bear upon the very testamentary act. And such evidence must "do more than raise a suspicion. It must amount to proof, and such evidence has the force of proof only when circumstances are proven which are inconsistent with the claim that the will was the spontaneous act of the alleged testator." (In re McDevitt, supra.)

It sought to distinguish the case at bar from the McDevitt case, because in the case at bar there was the relation of husband and wife; and the position seems to be taken that such relation raises the presumption of undue influence. But there is no such presumption. "There is no legal presumption against the validity of any provision which a husband may make in a 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 him 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 a presumption of undue influence on her part. (Rankin v. Rankin, 61 Mo. 295.) Where a husband has made two wills dividing his property between his wife and 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 his former wills, 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 a jury. (Will of Nelson, 39 Minn. 204.)" (Notes to Richmond's Appeal, 21 Am. St. Rep. 98.) In Mason v. Williams, 53 Hun, 394, it was held that "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 draft submitted to him by his father." The presumption of undue influence is not raised by proof of interest and opportunity alone. (Turnure v. Turnure, 35 N. J. Eq. 437. See other cases to same point cited in 21 Am. St. Rep. 98, et seq.) In order to set aside a will for undue influence, there must be substantial proof of a pressure which overpowered the volition of the testator at the time the will was made.

It is contended, also, that the case at bar differs from the McDevitt case, because here the will was unnatural.

The consideration of the question whether or not a will is "unnatural"-by which is meant, we suppose, different from what it might have been expected to have been-is of no importance except in a case where there is some evidence immediately tending to show mental incapacity, fraud, or undue influence; in which event it might serve to help out a weak case. But there is no evidence in the case at bar that could be thus helped out. A will cannot be upset because in the opinion of a jury or court it is unnatural. In the opinion of the McDevitt case it is said: "Although I do not think it of special interest here, it is well to remember that one has the right to make an unjust will, an unreasonable will, or even a cruel will. Generally, such questions turn our thoughts, as they are often intended to, from the only question at issue, which always is, only, Is the will the spontaneous act of a competent testator? Of course, juries lean against wills which to them seem unequal or unjust. But the right to dispose of one's property by will is most solemnly assured by law, and is a most valuable incident to ownership, and does not depend upon its judicious use. The beneficiaries of a will are as much entitled to protection as any other property owners, and courts abdicate their functions when they permit the prejudices of a jury to set aside a will merely upon suspicion, or because it does not conform to their ideas of what was just and proper." (See, also, Latham v. Udell, supra.) And indeed, if it were important to consider it, we do not see how the will in the case at bar can be considered unnatural in such extreme sense as to be remarkable. At the time of the execution of the will the contestants-children of the first wife were all grown up, middle-aged people, with families of their own. He had seen but little of them after his marriage, and in a few years afterward he had moved away from them to California. They had strenuously opposed the marriage, and had said unkind things of his wife; and, as was very natural, there was not much social intercourse between the fam

ilies afterward. Of course, the contestants blame the appellant for this; but although several of them visited her and were entertained at least politely, there is no evidence that they ever invited her to visit them, except that on one occasion one of them said to her and the dece

dent, "Of course, you will come and see us soon." They had appealed to him a number of times for financial aid, and he had helped them; and he was displeased and angry because some of them followed him to California. One of the daughters, in stating the contents of a lost letter received from decedent, said: "He began by saying that he was sorry we had come here, as he had advised us not to come, and that it looked like we had come on purpose for him to help us; that we couldnow that we had come we could-we could hoe our own row he would mind his-he had enough of his own business to attend to. I think that was about all." Of course, the contestants attribute this this to the influence of the appellant, and they testify to statements which they say the decedent made to them tending to support that view; nevertheless the fact was that they came to California against his protests and thereby greatly displeased him. He and the appellant had one child, Mabel, who was only fourteen years old at the time of decedent's death and quite a young child at the time of the execution of the will. Therefore, under all the circumstances, it is not at all surprising that his affections bound him closely to his wife and Mabel, and that he left them property the income of which would support them. By his will he gave to each of the contestants one thousand dollars, and left the balance of his property, which was of the value of about fifty thousand dollars, to his wife, and, in the event of her death, to Mabel. The income of that amount of property would give the wife and daughter not more than a modest support; and, under all the circumstances, the disposition which he made of his property cannot be justly characterized as unusual or unnatural. At all events CVIII. Cal.-40

being of sound mind and memory, it was for him to dispose of his property as he chose.

(It is proper to notice particularly that the averment that appellant would not permit contestants to see the decedent is entirely unsupported by the evidence. Not only did he go about daily attending to his business entirely alone, but the appellant at one time visited the east for two months, the decedent remaining at home, and upon two occasions the decedent visited the east by himself.)

Looking through the transcript in this case we see no evidence at all sufficient to warrant a jury in annulling the solemn acts by which the decedent executed his will, and republished it in the codicil. If the law is to be changed, and the right of disposing of one's property by will, the policy of which has been sanctioned by the wisdom and experience of many generations of men, is to be taken away, that result must be effected by the legislative department of the government. As the law now stands that right cannot be frittered away after the death of the testator according, to the tastes and notions of others. It is quite likely that in the case at bar the provisions of the will did not meet with the approval of the jurors; but their approval was not necessary.

The judgment and order denying a new trial are reversed.

TEMPLE, J., and HENSHAW, J., concurred.

« PreviousContinue »