DARLEY VS. DARLEY. DARLEY VS. DARLEY. In the matter of proving the last Will and Testament of JOHN F. DARLEY, deceased. A codicil rejected, notwithstanding proof of instructions, when it appeared that the testator was in a weak condition of mind and body, and had varied testamentary dispositions in behalf of his wife, expressed in a will made shortly before, in favor of a party with whom he was living, who had great influence over him, and had expressed an intention to obtain his property. P. G. CLARK, for Contestant. J. W. WHITE, for Executors. The will in this case was executed on January 27, 1855. The codicil was executed on February 27, 1855. By his Will, the decedent gave to his wife a life estate, or during widowhood, in the income and profits of one-third part of his property, in lieu of dower, &c. By the Codicil, he revoked that bequest, and gave what he had intended for his wife to his mother, during her life, and after her death to go to his father for life; upon the father's death the whole to go to decedent's children. Also, by the Will, the Guardianship of his children is given by the Testator to his father and Francis Mann, who are named executors in the will. The widow contests the will. The grounds of her opposition have not been stated by her counsel. But from the character of the testimony introduced, it would appear that the objection that will be presented is the allegation that the testator was improperly influenced in making the disposition of his property contained in his codicil. VOL. III.-31 DARLEY US. DARLEY. The formal execution of both will and codicil is sufficiently proved. As to the will, there can be no doubt. In the execution of that instrument, it is proved by both the subscribing witnesses, that all the requirements of the statute were fully and literally complied with. And as to the codicil, the only question that can be raised, is, whether a proper request to sign was made by the testator to the subscribing witnesses. But the proof is sufficient on that point. Both the subscribing witnesses testify 1st. That they were invited by testator's father to the testator's room, in order to become subscribing witnesses to the codicil. 2d. That the testator, in their presence, unfolded the will and codicil, and dated and signed the codicil, and thereupon in their presence declared it, very emphatically, to be a codicil to his last will and testament; and turned the paper round on the table towards the witnesses for their subscription; that he was then asked by one of them where he, the witness, should sign; that the testator pointed in reply with his finger to the place of attestation, and told the witnesses to add the county of their residence to their names, saying that it was necessary in such cases. Ellen Cullen, who was present at the execution of the codicil, and who was examined as a witness for the executors, testifies, that when the subscribing witnesses were coming into the house, she told the decedent that the gentlemen who were to sign the codicil to his will were coming in, and that the decedent thereupon directed her to tell them to come up to his room, but not to stay long: That they came accordingly, and the codicil was executed and attested, as stated by the subscribing witnesses; also the attestation clause, which was at the foot of the codicil, and which was signed by the witnesses, and which it is manifest must have been read by the testator, who was so precise and particular in everything relating to this subject, recited the testator's request to the witnesses to sign. DARLEY VS. DARLEY. That the witnesses signed at the desire or request of the testator cannot be doubted; and that is all that is necessary. As to the allegation of undue or improper influence— I. Nothing can be more strongly proved than the fact in this case, that the codicil, whether it be just or unjust, equal, or unequal, was nevertheless the will of the decedent. It was done deliberately. Several days or a week before its execution he communicated in writing with his counsel respecting it, and finally gave his counsel, who drew the codicil, precise and detailed instructions on the subject by letter, written with his own hand, and which instructions were complied with. The codicil, after it was drawn, remained in the testator's possession for some days-during which it underwent no alteration, although it is manifest that it was a subject of considerable solicitude with him-and he must in the meanwhile have carefully read and examined it. II. There is no proof that any influence or persuasion was exerted by any one with the decedent, respecting the testamentary dispositions to be made of his property. 1. The only testimony that indicates that any one but the testator himself ever spoke on the subject, is the testimony of Mrs. Pignolet, and that testimony is not consistent with the known facts in the case. Mrs. Pignolet testified in substance, that Mrs. Darley, the elder, the mother of the testator, said, that her husband, the testator's father, was to settle a house upon her (Mrs. Darley), and that her husband was to have the testator's property. This statement is discredited, by the fact (among other things), that no such dispositions were ever made. The children of the testator receive his property under his will, and his father's contingent life-interest in an annuity of four hundred dollars, given to his mother for her life, by the codicil, does not corroborate Mrs. Pignolet's singular story; and yet it is upon this merest gossip that the allega DARLEY VS. DARLEY. tion must be hazarded-if made at all-that fraud or improper influence was used to direct the testator's testamentary dispositions; for the other testimony in the case does not, any of it, point to the exercise of persuasion or influence with respect to his property. It all refers-what there is of itto the use of harsh language by the testator's mother towards his wife, and that not, except on one or two occasions, in the testator's presence. There certainly never were slenderer grounds upon which to attempt to overthrow a will, deliberately made, as this was. And in this connection it should be noted, that several witnesses, in habits of daily intercourse with Mrs. Darley and the family, and much more intimate with them than Mrs. Pignolet was, all unite in testifying that they never saw or heard anything said or done to influence the testator in disposing of his property. 2. Influence in these cases, to be undue or improper, must be produced by force or fraud. Simple persuasion or advice to a testator, to devise or bequeath his property to one person or to another, or even to the person persuading or advising him, is not sufficient cause for annulling a will made in pursuance of the advice, no matter how unkind or contrary to natural duty or affection the will may appear to be. The persuasion or advice, to be in such a case legally improper and capable of affecting the validity of the instrument executed under its influence, must be so overbearing or importunate in its character as to give grounds for believing that it broke down or overcame and destroyed the free will of the testator. Influence is also undue and vitiates, when it is acquired or is exercised fraudulently and deceitfully, as by fraudulently keeping a testator in ignorance of facts, which, if known to him, would have caused him to will differently; or by fraudulently causing him to believe in the reality of that which has no existence, with the intent of inducing him thereby to make dispositions of his property not before intended by him, DARLEY US. DARLEY. and contrary to his moral obligations or to natural justice or duty. The influence, to be illegal and vitiate, must be of some one or other of these descriptions; and the facts in the present case do not bring it within any of them. No advice or persuasion to the testator, to devise or bequeath in any particular manner, is proved. No concealment of facts from the testator is shown. No fact was represented to him, as existing, that did not exist. What was said by his mother, of his wife's conduct, was merely opinion expressed of facts that were known to the testator personally as well as they were known to his mother, and this opinion was expressed without any reference direct or indirect to his testamentary dispositions, and was, in fact, but an ebullition-injudicious it may be, but still not unnaturalspringing from excessive maternal affection, deeply moved by the painful sight of a son's deplorable and hopeless suffering. It appears to me that never before was such slight ground as the testimony in this case furnishes deemed sufficient by a court to invalidate a will. III. The motive or feeling which prompted the bequest to the mother in this case, was not without some rational foundation, and is not to be regarded as if it were a bequest to a stranger. The decedent was weak, deplorably ill, andwhether the wife was chargeable or not with neglect—all the testimony shows, that with his mother he found superior care, treatment, and nursing. It won upon his affections, and he rewarded it. Upon reviewing all the testimony, the case seems to be, not one of undue influence exerted on a testator's mind, respecting his testamentary dispositions, but simply one of those unfortunate but too common cases in which domestic disagreements, having no reference whatever to testamentary dispositions, produced unkindness and ill-feeling; under the |