It has been held that the existence of any insane delusion will not invalidate a will, but only the existence of such as actually influenced the testator in the making of the will and caused prejudice and injury to the contestant. A will is not invalidated by delusions of the testator which do not relate to persons or objects affected by it. An opinion which is merely stimulated and but a fleeting vagary is not an insane delusion."

Sec. 617. Undue influence, duress, menace, fraud.

A will or part of a will procured to be made by duress, menace, fraud or undue influence, may be denied probate. A revocation procured by the same means may be declared void."

The undue influence here designated by the statute must, in order to avoid a will, destroy the free agency of the testator at the time, and in the very act of making the testament. It must bear directly upon the testamentary act.

highly suspicious of nearly every person with whom she had any relation; feared they were taking advantage of her or seeking to injure her. She was a sufferer from dyspepsia and other diseases of the stomach, which finally resulted in her death. She had a constant fear of being poisoned; charged those about her, while a widow, with trying to poison her; and after her marriage with contestant, made the same charge against him. She also charged him with seeking to put her in an asylum and of unfaithfulness. Contestant had remarked that his wife was insane, and that he would break any will she would make, which remark was repeated to her. They occupied different apartments, and she had seen contestant with another woman, though there was no evidence that

he was ever unfaithful to her, or attempted or thought of poisoning her. By her will, made shortly after her marriage with contestant, and also by her codicil executed some years later, and shortly before her death, she gave him two-fiftieths of her estate. Held, that the evidence authorized the trial court in finding that testatrix was not fully convinced of the charges she made against her husband, and hence was not under any delusion in reference thereto at the time she made the will. In re Scott's Estate, 128 Cal. 157, 60 Pac. 528.

5 In the Matter of the Estate of McKenna, 143 Cal. 580, 77 Pac. 461. 6 In the Matter of Redfield's Estate, 106 Cal. 637, 48 Pac. 794. 7 Snyder, 2,891; Wilson, 6,801. 8 In the Matter of the Estate of Donovin, 140 Cal. 390, 73 Pac.

The court has said in another case, that undue influence to vitiate an act must amount to force and coertion sufficient to destroy free agency; it must not be the influence of affection and attachment; it must not be the desire to gratify the wishes of another, for that would be very strong ground in support of the testamentary act; further, there must be proof that the act was obtained by this coertion, by importunity, or could not be resisted; that it was done merely for the sake of peace, so that motive was tantamount to force or fear." Again, the true test of undue influence is that it overcomes the will without convincing the judgment; and the fact that a testator, with such qualifications, makes a foolish, unnatural or unjust will, does not show that undue influence caused the will.10 There is no legal presumption against the validity of any provision which a husband may make in his 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 judgment. It has been said that if a wife by her good virtues had gained

1,081. In an action to set aside a deed executed by Jesse O. Goodwin, deceased, to the defendant, the allegation of the complaint was: "Said defendant contriving and intending to defraud the said Jesse O. Goodwin of his said property, attempted to and did, without just cause, prejudice the mind of the said Jesse O. Goodwin against his relatives, and especially the plaintiff, and by means of false representations, improper and undue influence, aided by the weakness of the understanding of the said Jesse O. Goodwin, did prevail upon him to execute, acknowledge and deliver the above mentioned conveyance, without any good, valuable or lawful consideration whatever." Held,

that the complaint is insufficient, even if it is admitted that undue influence is an ultimate fact to be pleaded haec verbis, it is not alleged that the execution of the conveyance was induced solely by such influence. Nor is the allegation sufficient as to the allegation of fraud, because the facts constituting fraud are not stated. Goodwin v. Goodwin, 59 Cal. 560.

9 Goodwin v. Goodwin, 59 Cal. 560.

10 In re Donovin's Estate, 140 Cal. 390, 73 Pac. 1,081; Estate of McDevitt, 95 Cal. 33, 30 Cal. 101; In the Matter of the Estate of Kaufman, 117 Cal. 259, 49 Pac. 192, 59 Am. St. Rep. 179.

such an ascendency over her husband, and so riveted his affections that her good pleasure is a law to him, such an influence can never be a reason for impeaching a will made in her favor.11

The mental and physical condition of the testator at or about the time of the execution of a will is such an important factor in determining whether or not the will was that of the testator, or an instrument procured by coertion and fraud, that the two questions are kindred and very closely interwoven and connected with each other. It is a matter of common knowledge that a person in declining health, whose body is weakened and emaciated by disease, is, to a more or less degree, impaired in his mind. The strength of will, the quickness of apprehension, and the reasoning powers become impaired as the body becomes enfeebled.

In such case the testator is peculiarly exposed to the secret machinations and importunities of designing persons, who, in the guise of love and friendship, have surrounded him and administered to his wants as life and reason have gradually ebbed away. The soundness of mind required for making a will has relation to the act of the testator in making final disposition of his property as he desires. Although feeble in health, suffering under disease, aged, and infirm, the testator, if of sound mind, with reference to the disposition of his property, may make a will. If he is able to understand and carry in mind the nature and situation of his property, and his relations to his relatives and those around him, with clear remembrance as to those in whom, and those things in in which he has been mostly interested, capable of, understanding the act he is doing, and the relation in which he stands to the objects of his bounty, free from delusion, the effect of disease which might lead him to dispose of his

11 In re Donovin's Estate, 140 Cal. 390, 73 Pac. 1,081; Small v. Small, 16 Am. Dec. 255; Perry v. Perry, 94 Tenn. 328, 29 S. W. 1;

In the Matter of Langford's Estate, 108 Cal. 608, 41 Pac. 701; Latham v. Udell, 38 Mich. 238.

property otherwise than he would if he knew and understood what he was doing, he has the capacity to make a will.12

Undue influence, if such as to compel or procure the testator to do that which it was not his own will to do, and which procures an instrument which is not the free and expressed intention of the testator, will vitiate the will. The influence must be undue influence in order to vitiate the instrument. Influences of different kinds surround every rational being, and operate necessarily in determining his course of conduct. The influence of love or duty prompts a man to provide for his wife and children and other near relatives. The influence of pity often prompts a provision for some unfortunate friend. The influence of education may prompt a bequest to some institution of learning. or of religion, to some church for charitable purposes. The kind of undue influence that will destroy the instrument must be such as in effect destroyed the testator's free agency, and substituted for his own, another person's will.13

Sec. 618. Undue influence, execution, evidence of.

In an action where the probate of a will was contested on the ground that its execution was obtained by undue influence, evidence that the testator was intoxicated when it was

12 By the court in In the Matter of Motz's Estate, 136 Cal. 558, 69 Pac. 294.

13 By the court in Motz's Estate, 136 Cal. 558, 69 Pac. 294. On an issue whether a will leaving all of testator's property to his wife was obtained by undue influence on her part, one of the subscribing witnesses testified that the testator came into his office alone, and asked him to write the will, giving him a memorandum, and not indicating in any way that he was being coerced. The wife was not present. There was no evidence that she had

ever asked him to make a will. A washerwoman testified as to quarrels between husband and wife, and said the wife was "boss," and others testified that he said she wanted all his property, etc. Held, not an abuse of discretion to set aside a finding of undue influence. In the Matter of Motz's Estate, 136 Cal. 558, 69 Pac. 294. It was proper to instruct that a mere suspicion that undue influence or pressure is brought to bear, is not sufficient to justify setting aside a will. In the Matter of Keegan's Estate, 139 Cal. 123, 72 Pac. 828.

executed is admissible in connection with other circumstances to show undue influence; and if such testimony is introduced, the court cannot take away the right to find on the issue.1 It cannot be stated as a rule of law that because a man is a drunkard, therefore he is of unsound mind.15

Sec. 619. Undue influence The admissibility of evidence of testator's declarations as to undue influence

Declarations of the beneficiary.

It was said by the court,1 and quoted with approval in In the Matter of Arnold's Estate: 17 "The external facts constituting an exercise of undue influence must be established by other evidence than the declarations of the testator. His declarations are incompetent to show either that the influence was exercised, or that it affected his actions, and are inadmissible, except as they may illustrate his mental state, and give a picture of his mind contemporaneous with the declarations themselves. Whenever the condition of the mind is a fact which it is desirable to prove, it may be established by such evidence as is competent for that purpose. The mental condition of an individual is made manifest to others by his statements, declarations, conversations as well as by his conduct; and when the state of a testator's mind at the time of the execution of the will is the fact to be shown, his contemporaneous declarations and statements furnish the most satisfactory evidence of the fact. Whenever the declarations of the testator constitute narratives of the exercise of undue influence or of the effect of such influence upon him, they are inadmissible for that purpose, whether made before or after the execution of the will. If made at the time of its execution, they may be admissible, if they are so made as to constitute a part of the res gestae; but, if not, although made at

14 In the Matter of Cunningham's Estate, 52 Cal. 465.

15 In the Matter of Johnson's Estate, 57 Cal. 329.

16 In re Calkin's Estate, 112 Cal. 301, 44 Pac. 577.

17 147 Cal. 583.