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ed while the decedent was in the mental condition described; that no record of the deeds was made until after his death, and that, against his protest and that of his widow and of his physician, he was forcibly removed from his home, where he was living with his wife, and carried to the home of his daughter, where he died; and that he was never permitted to see his child, and whenever his wife came to the house she was driven away by the daughter. These facts were held to constitute a good cause of action.*

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§ 242. Effectiveness of Influence Must Appear. To set aside any transaction on the ground of undue influence it must be shown not only that such influence existed and that it was exercised, but also that it was exercised effectually, that is, that it was the efficient cause in bringing about the transaction complained of.49 "The influence which the law denounces as undue influence over a testator must be such as to destroy his free agency, and amounts to moral or physical coercion. It must be proved, moreover, that the act done was the result of such coercion. There must be a control exercised over the mind of the testator, or an importunity practised, which he could not resist, or to which he yielded for the sake of peace." 50 Hence if a person freely and voluntarily executes an instrument, possessing at the time sufficient mental capacity and being fully aware of all the circumstances, he cannot avoid it merely because he has changed his mind and wishes his act undone, although he was urged into doing it. It is said that "it is a rule governing in ascertaining whether undue influence was exerted over the mind of a testator that the influence was such that it induced the testator to act contrary to his own wishes, and to make a different will from what he would have made if he had been left free to exer

48 Jones v. Gilpin, 127 Ga. 379, 56 S. E. 426. And see Keller v. Gill, 92 Md. 190, 48 Atl. 69; Shawvan v. Shawvan, 110 Wis. 590, 86 N. W. 165.

49 Borchers v. Barckers, 143 Mo. App. 72, 122 S. W. 357.

50 Trumbull v. Gibbons, 22 N. J. Law, 117, 136.

51 Falls v. Falls, 78 Iowa, 756, 42 N. W. 511; Whitten v. McFall, 122 Ala. 619, 26 South. 131; Ditmas v. Ditmas, 11 App. Div. 628, 42 N. Y. Supp. 108; Hill v. Coakley, 149 Ky. 814, 149 S. W. 1001.

cise his own wishes and desires according to his own judgment and discretion." 52 Hence a contract or deed cannot be set aside on the ground of undue influence when it appears that the maker of it had enough mental capacity to understand the nature and character of the transaction, and that he was executing a fixed purpose of his own,53 or carrying into effect an intention which he had previously expressed and declared." Thus, a conveyance of property in consideration of support and maintenance, given to two sons who had lived with their father for many years, will not be set aside on an allegation that it was procured by their undue influence over him, where it is shown that he had repeatedly said that he would give his property to his sons, and that he had made a similar disposition of the property by will five years before.55 So a deed by an epileptic of feeble mind, but competent to convey, will not be set aside, after his death, for undue influence, because given without consideration to a relative with whom he lived and who was a woman of strong character and determined mind, where the deed was made in lieu of a will, and accorded with the grantor's wishes as to the disposition of his property. And it is stated that, in determining the validity of a gift alleged to have been procured by undue influence, the court will consider not only the condition of the donor at the time of the gift, and the circumstances surrounding it, but also his previous life, habits, and relations to others, so as to ascertain the natural or probable objects of his bounty, and especially to discover any settled purpose which he may have had in regard to the disposition of his property." But on the other hand, where a mother, after she became mentally and physically infirm, conveyed to her two sons, who resided with her and largely

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52 Wetz v. Schneider, 34 Tex. Civ. App. 201, 78 S. W. 394.

58 Wright's Ex'r v. Wright, 32 Ky. Law Rep. 659, 106 S. W. 856; Garner v. Garner, 4 Ky. Law Rep. 823.

54 Lodewyck v. Lacroix, 115 Mich. 590, 73 N. W. 897; Latimer v. Latimer, 174 Ill. 418, 51 N. E. 548.

55 Claflin v. Claflin, 102 Iowa, 744, 71 N. W. 210; Coombe's Ex'r

v. Carthew, 59 N. J. Eq. 638, 43 Atl. 1057.

56 Nutting v. Pell, 11 App. Div. 55, 42 N. Y. Supp. 987.

57 Simpson v. League, 110 Md. 286, 72 Atl. 1109.

attended to her business, the farm on which she lived and the personal property on it, in consideration of their promise to support her during life, and the deed disposed of the property in a manner different from what she had declared to be her intention when in much better health, and about the time the deed was made she expressed a prejudice against her other children, with whom she had always been on good terms, and the evidence authorized the inference that this prejudice had been engendered by the sons, it was held that a judgment setting aside the deed should not be disturbed, as the law always looks with suspicion upon voluntary transfers of property by persons mentally and physically infirm to those having the custody of them.58

§ 243. Influence Based on Gratitude and Affection.Undue influence means wrongful or fraudulent influence, and the term does not include such influence as may be secured through affection and gratitude. Acts of kindness and generosity, of care and devotion, of filial respect and duty, or patience, love, and sympathy, may well create a powerful influence, but it is one which the law recognizes as natural and beneficial. And though a gift or grant may be made to a person at his solicitation, and prompted by the partiality which the donor or grantor feels for him, leading him to prefer such beneficiary to others equally near to him, and who might have acquired equal favor by similar conduct, yet it cannot be said to have been gained by undue influence, where the mind of the grantor or donor acted freely and his motives grew out of such partiality and affection. Even under these circumstances, however, an

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58 Talbott v. Bedford, 21 Ky. Law Rep. 897, 53 S. W. 294.

59 Mackall v. Mackall, 135 U. S. 167, 10 Sup. Ct. 705, 34 L. Ed. 84; Sawyer v. White, 122 Fed. 223, 58 C. C. A. 587; Adair v. Craig, 135 Ala. 332, 33 South. 902; Turner v. Gumbert, 19 Idaho, 339, 114 Pac. 33; Fitzgerald v. Allen, 240 Ill. 80, 88 N. W. 240; Burt v. Quisenberry, 132 Ill. 385, 24 N. E. 622; Sargent v. Roberts, 265 Ill. 210, 106 N. E. 805; Preston v. Lloyd, 269 Ill. 152, 109 N. E. 687; Beavers v. Bess, 58 Ind. App. 287, 108 N. E. 266; Baker v. Baker, 169 Iowa, 473, 151 N. W. 459; Hughes v. Silvers, 169 Iowa, 366, 151 N. W. 514; Steen v. Steen, 169 Iowa, 264, 151 N. W. 115; Mallow v. Walker, 115 Iowa, 238, 88 N. W. 452, 91 Am. St. Rep. 158; Collier v. Dundon, 164 Ky. 345, 175 S. W. 635; Nelson v. Wiggins, 172 Mich. 191, 137 N. W. 623; Jackson v. Hardin, 83 Mo. 175;

influence so acquired may be put to an undue use, and it is to be condemned if used with such weight or importunity as to confuse the judgment of the grantor and to subordinate and control his will effectually.60 "The rule is established," it is said, "that undue influence must be such as amounts to overpersuasion, coercion, or force, destroying the free agency and will power of the testator. It must not be merely the influence of affection or attachment, nor the desire of gratifying the wishes of one beloved and trusted by the testator." 61 On this point, the Supreme Court of the United States has said: "It would be a great reproach to the law if, in its jealous watchfulness over the freedom of testamentary dispositions, it should deprive age and infirmity of the kindly ministrations of affection, or of the power of rewarding those who bestow them. Undue influence must destroy free agency. It is well settled that, in order to avoid a will on the ground of undue influence, it must appear that the testator's free agency was destroyed and that his will was overborne by excessive importunity, imposition, or fraud, so that the will does not, in fact, express his wishes as to the disposition of his property, but those of the person exercising such influence. That the relations between this father and his several children during the score of years preceding his death naturally inclined him towards the one and against the others is evident, and to have been expected. It would have been strange if such a result had not followed; but such partiality towards the one, and influence resulting therefrom, are not only natural, but just and reasonable, and come far short of presenting the undue influence which the law de

McKissock v. Groom, 148 Mo. 459, 50 S. W. 115; Goodman v. Griffith, 238 Mo. 706, 142 S. W. 259; Hacker v. Hoover, 89 Neb. 317, 131 N. W. 734; Delaplain v. Grubb, 44 W. Va. 612, 30 S. E. 201, 67 Am. St. Rep. 788.

60 Sawyer v. White, 122 Fed. 223, 58 C. C. A. 587; Wherry v. Latimer, 103 Miss. 524, 60 South. 563, 642; Brugman v. Brugman, 93 Neb. 408, 140 N. W. 781; Hacker v. Hoover, 89 Neb. 317, 131 N. W. 734.

61 Riley v. Sherwood, 144 Mo. 354, 45 S. W. 1077. And see Schofield v. Walker, 58 Mich. 96, 24 N. W. 624.

nounces. Right or wrong, it is to be expected that a parent will favor the child who stands by him, and give to him, rather than the others, his property. To defeat a conveyance under those circumstances, something more than the natural influence springing from such relationship must be shown; imposition, fraud, importunity, duress, or something of that nature, must appear; otherwise that disposition of property which accords with the natural inclinations of the human heart must be sustained." 62 This principle is also well illustrated by a case in Tennessee, in which it appeared that a homeless old man, turned away from the houses of his son and of two of his grandchildren by their unkindness, was finally taken in and kindly cared for by a third grandchild. Thereafter he expressed to several persons his intention of giving his land to such grandchild and her husband, because they had been good to him, and to that end he regularly executed a deed of such land, which was first read to him. His son and the other grandchildren misrepresented to him the terms of the instrument which he had signed and tried in various ways to induce him to disclaim it. But he persistently refused to do so, telling several persons that he gave the land to the grantees, and that he was satisfied with the deed, and writing to his son to the same effect. He lived for two years after the execution of the deed, and never tried to revoke it or have it canceled. It was held that no showing of fraud or undue influence could be made out from the facts as stated.63

The principle stated in this section is most commonly applied, according to the facts occurring in actual life, to gifts or grants as between parent and child. But it is equally applicable in other relations of life. Thus, it is said that influence secured through affection by a grantor for his foster child is not undue influence." 64 And such influence as a man's wife may acquire over him by her personal demeanor and conduct towards him, as his wife, and the fact that she gains his affection and confidence by her kind and

62 Mackall v. Mackall, 135 U. S. 167, 10 Sup. Ct. 705, 34 L. Ed. 84. 63 Martin v. Winton (Tenn. Ch. App.) 62 S. W. 180.

64 Sears v. Vaughan, 230 Ill. 572, 82 N. E. 881.

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