not reflect back on previous eccentricity, so as to invalidate the paper as a testamentary act (t).

In another case, where the drawer and attesting witnesses of a will (revoking a former one) executed ten days only before the death of the testator, who was eighty-five years of age, were confirmed in their testimony as to his capacity, volition, and free agency, by adverse witnesses, and by his affections, declarations, and recognitions; the general bad character of the drawer (an attorney of low practice, who had been employed by the testator for many years) and slight discrepancies in the evidence of the factum, were held not material, as it appeared that the testator possessed faculties equal to the act, and was not likely to have been imposed upon, the Court pronounced in favour of the will; and condemned the opposer of it, who had pleaded a fraudulent conspiracy, incapacity, and circumvention, (in the proof of which he failed) in the costs incurred by his allegation (u).

But in a case where a husband, by undue influence and marital authority, obtained from his wife (nine days before her death, when her mind was affected by delirium, and when she was labouring under a painful disorder, to allay which she took laudanum) a will by which he was appointed sole executor and universal legatee, wholly departing from a former will deliberately made a few months before; it was held that the presumption was strong against the will so obtained by the husband; and the evidence not being satisfactory in support of it, the Court pronounced against it, and condemned him in costs (v).

So also, where the execution of a codicil to a will was clandestinely, and without any previous instructions, obtained from a testator eighty years of age, only one month before his death, by his son (the person solely benefited) and his associates, and the disposition was contrary to the repeated former acts of the deceased, (the clearest proof of capacity

(t) Hoby v. Hoby, 1 Hagg. Eccl. Rep. 146-162.

(v) Mynn v. Robinson, 2 Hagg. Eccl. Rep. 179. See Moss v. Bran

(u) Bird v. Bird, 2 Hagg. Eccl. der, 1 Phill. 254. Rep. 142.

and free agency under such circumstances being necessary), the Court pronounced against such codicil, and condemned the son in costs (w).

It has been laid down, that, if a man makes a will in his sickness by the over importuning of his wife, to the end that he may be quiet, this shall be said to be a will made by constraint, and shall not be good (x). The influence, to vitiate a testamentary act, must amount to force and coercion destroying free agency, it must not be the influence of affection and attachment, nor the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a will; further, there must be proof that the act was obtained by that coercion, by importunity which could not be resisted; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear.

Thus, in a case where a codicil, written before the capacity of the deceased was attempted to be impeached, shewed the testator's great affection for, and confidence in, his wife, his anxiety for her comfort and gratification, and that she should not be disturbed in the enjoyment of his property; and whatever might have been her influence over the testator, it was not suggested that it was of a nature to vitiate the act: and it further appeared, that there was the general influence of an active, bustling, high spirited wife, over a good natured, easy husband; and that, in consequence of a paralytic attack, it was necessary she should take a decided lead in the management of the concerns of an inn kept by the husband; and that she exercised some control over his actions and conduct, as a kind nurse and an affectionate wife naturally would; but no trace appeared of any unfair importunity, on the part of the wife, to induce him to alter his will or to do any testamentary act-Although the Court admitted that the wife possessed influence arising from the affection and deference of the husband, and from his wish, in the dispo

(w) Mackenzie v. Handasyde 2 Rep. 427; Vin. Abr. tit. Devise, (Z. Hagg. Eccl. Rep. 211. 2.) pl. 3, 7. 3; and see Swinb. on (x) Hacker v. Newborn, Styles' Wills, part 7, s. 2.

sition of his property, to please her who was the principal means of acquiring it; yet that was held insufficient to vitiate the testamentary act; for, in order to do that, there must be proof of something amounting to force and coercion in the obtaining the act itself (y).

Such influence is much more readily inferred to be exercised by the husband over the wife, than by the wife over the husband. Thus, in a case where a feme covert having, under certain powers, made a will and codicil in February, 1818, (eight months after her marriage, by which, after making provision for her husband, and leaving sundry legacies, she bequeathed the bulk of her fortune to, and appointed executors, strangers in blood; such disposition (except the provision for the husband) being similar to a will made by her in 1816. The wife afterwards made a will on the 9th of March, 1827, and a codicil thereto on the 21st April, (she dying on the 8th May,) 1827; which papers, (except legacies to three servants, and rings to three friends), left all her property to her husband, and appointed him and a total stranger executors; the Court holding that the latter papers were obtained by the husband's undue influence, when her faculties were much impaired, pronounced for the will and codicil of 1818, and condemned the husband (who, though he denied the validity of the powers, and nominally prayed an intestacy, was the real party setting up the latter papers) in the costs of the executors of the will of 1818. Sir John Nicholl observed, in inquiring into the factum of the latter will, it becomes material to examine the probability of this great change of intention; and it becomes the more necessary to examine that probability, if, at the time of making the disposition, the capacity of the testatrix was in any degree weakened or doubtful; still more, if the husband, in whose favour this great change is made, and who, from the relation in which he stood to the deceased, must almost necessarily have great influence and authority, should be the person originating the whole business of the new will. To examine, then, the robability of this change, it may be proper to consider the

Williams v. Goude and Bennett, 1 Hagg. Eccl. Rep. 577-611.

grounds and circumstances of making the first will. If that were made upon hasty, capricious, and temporary considerations, the departure from it becomes less improbable; but if made under motives long existing, and quite naturally inducing it, the adherence to it will be the more strongly presumed, and the circumstances to account for the complete revolution in her intentions will be required to be more forcible. Where, in addition to these circumstances-First, that the disposition in the new will is highly improbable— Next, that the husband had been endeavouring to get at her deeds and testamentary instruments; and further, that she was in a state of doubtful capacity-it is found that the husband, as far as the evidence went, originated and conducted the whole business, representing or rather misrepresenting the previous facts, and being present at all the material parts of the transaction, the case proceeded to the evidence of the factum under presumptions of fraud and imposition, which hardly any evidence would be sufficient to repel. It would at least be extremely difficult to shew, that she was a free as well as capable testatrix; to shew that she had a real disposing testamentary mind, and an intention to abandon all the dispositions of her former will made so carefully, and adhered to so firmly. The strong presumption would be, that, in whatever she said and did, however it might impose upon the witnesses, she was a mere instrument and puppet in the hands of her husband. To revoke the former will, her spontaneous act, it was necessary that the deceased should be proved to have recollected, at least, its general contents; that she had distributed memorials among her friends; that she had given her husband a certain portion; that she had bequeathed the bulk of her fortune to those whom she had long adopted for that purpose; it was necessary that she should be proved, upon some rational grounds (negativing the importunity of her husband) to have become desirous of abandoning all her former intentions; but to no part of her former will is there the least reference. That this new will was without the importunate influence of the husband, there is not the slightest appearance in any part of the evidence. There

was nothing to convince the learned Judge that the mind of the deceased was sufficiently probed, to ascertain whether she was or was not either a free, or, as applied to such a will, a capable testatrix; nothing satisfactory to discover what her real wishes were, without the restraint and influence of her husband. To support such a complete revolution in the testamentary dispositions of the deceased, it was necessary to shew that she had recollection of what the former disposition was, even supposing there were no grounds to suspect a mere tutored acquiescence under the influence of her husband. The circumstances were all quite sufficient to require that the husband should afford the most satisfactory proof that the deceased was not a mere unresisting instrument in his hands, so taught, tutored, and impressed, as to say and do all that was stated to have taken place. The learned Judge in conclusion observed, (considering the extreme improbability of this change of disposition; the means used by the husband to urge her to place her concerns in his hands; her long resistance till reduced to a weakened state of capacity; the presence of the husband conducting all these transactions), that it was not proved to his mind that the latter will was the real mind and wish of a capable and free testatrix; on the contrary, he was of opinion, that it was the will of the husband obtained by him by undue influence and marital authority, contrary to the real wishes and intention of the deceased, as far as she was capable at that time of forming any testamentary intention (~).

In a case where a testator having, ten years before his death, when in perfect health, executed a will, and subsequently a codicil, conformable to his ascertained affections; and two years and a half before his death, (after a paralytic

(z) Marsh v. Tyrrell and Harding, 2 Hagg. Eccl. Rep. 84-141. In this case, there was an appeal to the Court of Delegates, and (neither of the Common Law Judges consenting to the decree proposed by

the majority) no judgment was giv

en. A commission of Adjuncts was afterwards issued, and the parties having entered into a compromise, the sentence was reversed by consent. Tyrrell and Harding v. Marsh, S Hagg. Eccl. Rep. 471.