Drake's Appeal from Probate.

notice that the deceased was dangerously sick until after the making of the will. Also that said Charles N. Barber, who was an attendant on the day of the making of the will, and before the same was executed, did not send any word to the relatives, saying they would not come if they were sent for, although he had no reason to know that they would not come, except that he understood there was not a very kind feeling existing between them and the deceased.

It was further proved that Hayden was an active member of said Grace Church, and deeply interested in its prosperity, and was in the habit of contributing liberally to its support; and that the testator died possessed of an estate valued at about fourteen thousand dollars.

Upon the foregoing facts, the appellants requested the court to charge the jury that the law raised a sufficient presumption of undue influence to change the burden of proof, and cast upon the appellees the duty of showing that every thing connected with the instrument was free from unfairness and impropriety.

The appellants also requested the court to charge the jury that, as fraud and undue influence are not ordinarily susceptible of direct proof, such undue influence might be inferred from the nature of the transaction alone, and that the jury had a right to infer undue influence from the foregoing facts.

Upon all the claims of the appellants as to undue influence and unfairness, the court instructed the jury that the burden of proof was on the appellants, that if they should find that from any cause or by any means the testator was induced to act contrary to his wishes, and to make a different will and disposition of his estate from what he would have done if left entirely to his own discretion and judgment; that his free agency and independence were overcome; that by some dominion or control exercised over his mind, he was constrained to do what was against his will, and what he was unable to refuse and too weak to resist, then they should find the issue in favor of the appellants. But moderate and reasonable persuasion, though yielded to, if done intelligently and from a conviction of duty, would not vitiate his will, if otherwise valid.

Drake's Appeal from Probate.

It was also proved that the persons described in the third clause of the will as "brothers" and "sister," were in fact the half nephews and half niece of the testator, and it appeared by the testimony of Hayden, that after the death of the testator and before the 30th day of November, 1874, the date of the probate of the instrument, he altered the will by changing the word "brothers" to "nephews," and the word "sister" to "niece," and in that condition it was admitted to probate as above stated, and so recorded; and that at some time afterwards, and before the trial in the Superior Court, Hayden altered back the will and the record thereof, so as to make the clause read "brothers and sister."

The appellants thereupon claimed that the instrument produced by the appellees was not the same instrument admitted to probate, from which the appeal was taken. Upon this claim the court instructed the jury that they must be satisfied that the instrument admitted to probate, was the one from which the appeal was taken; that the alteration proved did not destroy its identity, nor render it void; and that an alteration of a will by a third person, even if fraudulently made, would not invalidate it.

The jury having returned a verdict for the appellees, the appellants moved for a new trial for error in the charge of the court and in the refusal of the court to charge as requested.

A. P. Hyde and L. E. Stanton, in support of the motion. 1. The witnesses Hayden and Barber were disqualified by interest from attesting the will. At common law, any interest of the witness, however small, invalidated the whole devise. Starr v. Starr, 2 Root, 303; Clark v. Hoskins, 6 Conn., 109.

2. Upon the facts of the case the charge of the judge was clearly wrong. The circumstances attending the execu tion of the will, the peculiar relation which Hayden occupied with reference to the testator, together with the acknowledged fact of the alteration of the will by Hayden, all required a charge better adapted to the facts of the case. The court

Drake's Appeal from Probate.

however refused the instructions approved by this court in St. Leger's Appeal from Probate, (34 Conn., 434,) and simply told the jury that the burden of proving undue influence was upon the appellants. The jury must have understood that the appellants were bound to establish undue influence. and fraud by positive testimony. These instructions, contrary to our own adjudged cases, undoubtedly determined the verdict.

3. On the question of soundness of mind, it will not be denied that the burden was upon the appellees. Knox's Appeal from Probate, 26 Conn., 20. Upon the question of unfairness and undue influence, the court in St. Leger's Appeal told the jury that a similar set of facts changed the burden of proof, and cast upon the appellees the duty of proving the fairness and propriety of the transaction. See also Tyler v. Gardiner, 35 N. York, 594; Delafield v. Parish, 25 id., 35; Marsh v. Tyrrell, 2 Hag., 87; In re Welsh, 1 Redf. Sur. R., 244; In re Langton's will, 1 Tuck. Sur. R., 301; Barry v. Butlin, 1 Curteis Eccl. R., 637; Beall v. Mann, 5 Geo., 456; Simpler v. Lord, 28 id., 52; Leacraft v. Simmons, 3 Bradford, 35; Marvin v. Marvin, 4 Keyes, 9; Lee v. Dill, 11 Abbott Pr. R., 218; 1 Redf. on Wills, 121, 158.

4. The alterations were not by a stranger. If they were material, being made by a party, they would avoid the instrument, or at least the bequest in which the party was interested as legatee. Pigot's case, 11 Coke, 29; Jackson v. Malin, 15 Johns., 297; Smith v. Fenner, 1 Gall., 170. The alterations. were made before probate. The will presented in the Superior Court was not identical with that from which we took the appeal. The jury should have been informed that the presumption is against a party who thus behaves with a will.

G. G. Sill, contra.

1. The witnesses Hayden and Barber were competent. Cornwell v. Isham, 1 Day, 35; Clark v. Hoskins, 6 Conn., 106; Gen. Statutes, tit. 18, ch. 11, sec. 3.

2. The relations which operate to change the general rule that the burden of proof is on those alleging undue influence,

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did not exist in this case; Mr. Hayden was neither the attor ney nor the confidential adviser of the deceased. The motion does not show any confidential relation and this court will not infer any. St. Leger's Appeal from Probate, 34 Conn., 434; Baldwin v. Parker, 99 Mass., 79; Barry v. Butlin, 1 Curteis Eccl. R., 638.

3. As to the alteration in the will, there is no question of law. The parties went to trial on the issue whether the will was duly signed by the testator and whether he had the capacity to make a will; the jury having determined both these questions in favor of the appellee, the appellants can not raise the question here. Besides this, even admitting that the rule in Pigot's case has any application to the facts of this case, the alteration was an immaterial one and did not affect the will. Malin v. Malin, 1 Wend., 625; Jackson v. Malin, 15 Johns., 297; Wood v. Wood, 1 Phillemore, 357.

CARPENTER, J. The will of Henry Drake is contested mainly on the ground that it was obtained by undue influence. The jury sustained the will, and the appellants ask for a new trial for a misdirection. The material facts are these:-The testator left no family, his next of kin being brothers and sisters, who lived but a few miles from him. They were not informed of his dangerous sickness and knew nothing of his intention or desire to make a will until after it was made. was made five days before his death and while he was "suffering from severe disease."

It

H. S. Hayden, Esq., at the request of the testator, wrote the will, and he "was the only person who claimed to have conversed with the testator, or to have had any interview with him about the same." What occurred at these interviews, and what conversation passed between them on the subject of the will does not appear.

The testator's estate amounted to about fourteen thousand dollars, of which about ten thousand dollars was given to the wardens and vestry of Grace Church.

Said Hayden was at the time a vestryman of Grace Church, and was made sole executor of the will. He was also "an

Drake's Appeal from Probate.

active member of said Grace Church, and deeply interested in its prosperity, and was in the habit of contributing liberally to its support." He and another vestryman of said church were two of the witnesses to the will.

It was also proved that the persons described in the third clause of said will as brothers and sister were in fact the half nephews and half niece of the testator. After the death of the testator, and before the will was admitted to probate, Hayden altered it by erasing the words "brothers" and "sister" and inserting in lieu thereof respectively the words "nephews" and "niece," and in that condition it was admitted to probate and recorded. Afterwards, and before the trial in the Superior Court, he again changed it, so that it now reads as it was originally written, and also changed the record thereof.

A question was made in the court below whether the two vestrymen of Grace Church were competent witnesses. That question and the kindred one whether the statute making legacies to subscribing witnesses void, removes the disqualification, we pass by, and will consider only the question of undue influence.

The appellants made three several requests, that the court should charge the jury on the subject of undue influence, as follows:

That as the witnesses "were vestrymen of said Grace Church, as legatee under said will, the situation and conduct of the witnesses to said will required explanation; that their testimony was subject to suspicion, and that the appellees were bound to show by the preponderance of evidence that every thing connected with the instrument was free from impropriety and any unfairness."

Also, that the law upon the facts "raised a sufficient presumption of undue influence to change the burden of proof, and cast upon the appellees the duty of showing that every thing connected with the instrument was free from unfairness and impropriety."

Also, "that as fraud and undue influence are not ordinarily susceptible of direct proof, such undue influence may be inferred from the nature of the transaction alone, and that