balanced as to be sound. It is not the weakness or strength of mind which determines its testamentary capacity; it is its soundness; that is, its healthy condition and healthy action. It frequently occurs that there is partial insanity, or monomania-insanity as to one or more persons, or upon one or more subjects, and soundness as to all others; and in such cases the testamentary capacity is affected as to a person or subject in regard to which the unsoundness exists.

9. Monomania consists in a mental or moral perversion, or both, in regard to some particular subject, or class of subjects, while in regard to others the person seems to have no such morbid affection. The degrees of monomania are various. In many cases the person is entirely capable of transacting any matters of business out of the range of his peculiar infirmity; and, as to those matters out of that range, he may be entirely sound; while, as to matters within the range of the infirmity, he may be quite unsound. [1st Red. on Wills, 72, et seq.]

Whenever it appears that a will is the direct offspring of partial insanity, or monomania, it should be regarded as invalid, though the general capacity be unimpeached.

10. Unsoundness of mind may be the result of disease, drunkenness, or of one of many other causes. In case of drunkenness there are two conditions, a will made under either of which is invalid, viz.:

Where the will is made during the period while the person is overcome by the delirium of intoxication, or where the use of intoxicating drinks has been so extensive and so excessive as to permanently disable the mind. But, in either case, the effect must be to have either temporarily or permanently overcome the judgment and unseated the reason.

11. Undue influence consists in the use, by one in whom a confidence is reposed by another who holds a real or apparent authority over him, of such confidence

or authority for the purpose of obtaining an unfair advantage over him, or in taking an unfair advantage of another's weakness of mind, or in taking a grossly oppressive or unfair advantage of another's necessities or distress. [C. C., Sec. 1575.]

12. The issue of undue influence and the principles governing it are entirely different from the principles applicable to unsoundness of mind. Undue influence is entirely distinct from unsoundness. A person may be of sound and disposing mind and yet be the victim of undue influence, and he may also be a victim of such undue influence when of unsound mind. If James McGinn was of unsound mind on September 26, 1887, when said instrument was signed and published by him—if it was ever signed and published by him-it is entirely immaterial whether or not any person exercised any undue influence over him in the matter of the making and execution of said instrument, because unsoundness of mind, of itself, incapacitates from making a will, influence or no influence. The question to determine here is, whether at the time of executing this alleged will-if it was ever executed-James McGinn was free to do as he pleased, or whether he was then so far under the influence of Johanna McGinn, Nellie Frances McGinn and Joseph McGinn, or any or either of them, that the will is not his will, but the will of said persons, or of one or more of them. Of course, persons who intend to control another's actions, especially in regard to making a will, do not proclaim that intent. Very seldom does it occur that a direct act of influence is patent; the existence of the influence must generally be gathered from circumstances. Such as, whether he had formerly intended a different disposition of his property; whether he was surrounded by those who had an object to accomplish, to the exclusion of others; whether he was of such weak mind as to be subject to influence; whether the paper offered is such

a paper as would probably be urged upon him by the persons surrounding him; whether they were benefited thereby to the exclusion of formerly intended beneficiaries. The question for you to determine is, was James McGinn, from infirmity of age, or from disease or other cause, constrained to act against his will, and to do that which he was unable to refuse by importunity or threats, or by any other means, or in any other way, by which one person acquires and exercises dominion and control over another. It is not possible to define or describe with exactness what influence amounts to undue influence in the sense of the law; this can only be done in general and approximate terms. In each case the decision must be arrived at by application of these general principles to the special facts and surroundings of the case.

13. In order that the will should have been executed under fraudulent misrepresentations, it is not necessary to consider the question of delusion or insanity. A person may be of perfectly sound mind, and yet be influenced by fraudulent misrepresentations. You will, therefore, inquire whether the will contains any provision which was the product of such fraudulent misrepresentations as are alleged in contestants' petition, which were made to the testator, or by any or either or all of the persons named, to wit: Johanna McGinn, Nellie Frances McGinn and Joseph McGinn, for the purpose of inducing him, and which did induce him, to disinherit any one. You will inquire whether James McGinn was induced to sign, or to acknowledge, or to publish, the document propounded to be his will, or to make any of the dispositions of his property, or any of the propositions therein contained, by or under fraudulent misrepresentations made by Johanna McGinn, Nellie Frances McGinn and Joseph McGinn, or by either or any of them, or by any statements made to him by them, that certain things existed

which did not in truth exist, and which caused him to make a will different from what he would otherwise have made.

14. Circumvention by means of fraud will be considered in the same light as constraint by force, and will have the same effect in setting aside will as such con

straint has.

If the testator be compelled by violence or urged by threatenings to make his testament, the testament, being made by fear, is ineffectual.

Likewise, if he be circumvented by fraud, the testament loses its force; for, although honest intercession or request is not prohibited, yet those fraudulent and malicious means, whereby men are secretly induced to make their testaments, are no less detestable than open force.

Actual fraud has been defined in our Code (Section 1572, Civil Code) as consisting in any of the following acts committed by a party to a contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

1. The suggestion of that which is not true by one who does not believe it is true.

2. The positive assertion, in a manner not warranted by information of the person making it, of that which is not true, though he believes it to be true.

3. The suppression of that which is true by one having knowledge of the fact.

4. A promise made without any intention of performing it; or,

5.

Any other act fitted to deceive.

15. An insane delusion is the pertinacious belief of the existence of something which does not exist, and the acting upon that belief. Belief of things which are entirely without foundation in fact, and which no sane person would believe, is insane delusion. If a person be

under a delusion, though there be but partial insanity, yet, if it be in relation to the act in question, it will defeat a will which is the direct offspring of that partial insanity.

17. In arriving at your verdict, you are to determine the different questions of fact, and each of the issues submitted to you, in accordance with the preponderance of evidence.

18. If you believe and are satisfied, by and from the evidence, that the respondents have not established and proved, by a preponderance of evidence, that the said instrument, claimed to be the last will and testament of James McGinn, deceased, was subscribed at the end thereof by said James McGinn, himself, or by some person in his presence, by his direction, then you will find as your answer to the First Issue, "No."

31. If you believe and are satisfied, from and by the evidence, that said James McGinn, deceased, was not of sound mind at the time the said instrument was subscribed by him, and when said James F. Smith and J. F. Tevlin signed their names to the same, then you will find, as your answer to and your verdict upon Special Issue No. 11, the word "No."

33. If you believe and are satisfied, from and by the evidence, that the mind and memory of said James McGinn had become so weakened and impaired, or deranged, from excessive indulgence in intoxicating liquors, or from any other cause, that he did not have or possess a sound and disposing mind and memory sufficient, or such a mind and memory as would enable him to recollect, discern and tell the relations, connection and obligations of family and blood, then it will be your duty to find, as your answer to and verdict upon Special Issue No. 11, the word "No."

34. If you believe and are satisfied, from and by the evidence, that the said James McGinn, at the time when