68. (a) Weakness of mind is not the opposite of soundness of mind; (b) weakness is the opposite of strength, and (c) unsoundness the opposite of soundness. [Instruction 8. And see XLI.

69. (a) A weak mind may be a sound mind, (b) while a strong mind may be unsound. (c) Illustration of men of contrasting grades of intellect. [Instructions 8; XLI.

70. (a) Neither weakness nor strength of the mind determines its testamentary capacity; (b) it is the healthy condition and healthy action-the even balance-which we denominate soundness. [Instruction 8.

71. There may be partial insanity, or monomania insanity, as to one or more persons or subjects, co-existent with soundness otherwise. [Instruction 8.

72. In cases of partial insanity or monomania, the testamentary capacity is affected as to the subject matter of such unsoundness. [Instruction 8.

73. Monomania consists (a) in a mental or moral perversion, or both, as to some particular subject or class of subjects, (b) whilst otherwise the person seems to have no such morbid affection. [Instruction 9.

74. Monomania has various degrees; (a) in many cases the person is entirely capable of transacting business out of the range of his peculiar infirmity, and as to such matters may be entirely sound; (b) while as to matters within the range of his infirmity he may be quite unsound. [Instruction 9.

75. A will which is the direct offspring of partial insanity or monomania is invalid, notwithstanding the general capacity is unimpeached. [Instruction 9.

76. Unsoundness of mind may be the result of disease, drunkenness, or one of many other causes. [Instructions 10; 33; 36.

77. Drunkenness, to result in unsoundness of mind, must be where the effect has been to overcome the judgment and unseat the reason, either temporarily-the litigated moment-or permanently. [Instructions 10; 33; 36.

78. There are two conditions of drunkenness which may result in mental unsoundness, viz.: (a) where a person is overcome by the delirium of intoxication, or (b) where the use of intoxicants has been so extended and excessive as to permanently disable the mind; in either case the judgment must have been overcome and the reason unseated. [Instructions 10; 33; 36.

79. The commitment of a person to the State Asylum for the Insane, on the ground of insanity, makes the legal presumption of continued insanity conclusive, where no evidence is offered to show restoration to mental sanity. [Instruction XXVIII.

80. In determining the soundness of a testator's mind, it is the right and the duty of the jury to take into consideration (a) the provisions of the will and the condition and nature of the estate disposed of; (b) the condition, mental and physical, of the beneficiaries, their age, and whether dependent upon or independent of testator's bounty; (c) the relations between testator and any excluded children, their age, condition, and dependence upon his bounty as to self-support, or otherwise, and their conduct towards him; and (d) in connection with all other admitted evidence as to testator's mental soundness. [Instructions XVI; 55.

81. It will not be presumed in law that a parent was of unsound mind, because he discriminated between his children in his testamentary disposition. [Instruction IV.

82. The mental condition of the testator, before and after the alleged execution of a will, is only important to throw light upon and show the actual mental condition at the time of execution. [Instructions XIII; 58.

83. Upon a contest of will after probate, the decree in the first instance admitting the will (a) does not create any presumption of law, (b) nor is it evidence that the alleged testator was mentally sound or competent at the time of alleged execution. [Instructions 62; 61. 84. If mental unsoundness existed at the time of execution of a probated will, no act or declaration of testator, subsequent to the execution, could validate the same as a will. [Instruction 58. And see XIII. 85. If mental unsoundness existed at the time of alleged execution of a will, the jury should disregard all evidence of sanity existing at a subsequent date. [Instruction 58.

86. The issue of undue influence is entirely distinct from that of unsoundness of mind; and the principles governing each are entirely different. [Instruction 12.

87. (a) A person of sound mind may be the victim of undue influence; (b) so, also, may a person of unsound mind. [Instruction 12.

88. (a) To define or exactly describe that influence which in law amounts to undue influence, is not possible; (b) it can only be done in general and approximate terms. (c) The decision must be reached, in each case, by applying the general principles on the subject to the special litigated facts and their surroundings. [Instruction 12.

89. All influences are not unlawful. (a) Persuasion, (b) appeals to the affections, or (c) ties of kindred, or (d) sentiment of gratitude for past services, or (e) pity for future destitution or the like, are legitimate, and may be fairly pressed on a testator. [Instruction XIX. 90. Undue influence consists in: (a) The use, for the purpose of an unfair advantage, of a confidence reposed by another, or a real or

apparent influence over him; or (b) taking an unfair advantage of another's weakness of mind; or (c) taking a grossly oppressive or unfair advantage of another's necessity or distress. [Instructions XVII; XXIX; 11.

91. Undue influence (a) is not that influence which arises from gratitude, affection or esteem; (b) but must be the control of another will over that of the testator's, whose faculties are so impaired that he has ceased to be a free agent, and submits and has succumbed to such other's control. [Instruction XVIII.

92. The question for determination upon an issue of undue influence over a testator is (a) whether at the time of the alleged execution of the will he was free to do as he pleased, or (b) was so far under the influence of the beneficiaries charged, or any of them, that the will is not his will, but is the will of one or more of said beneficiaries. [Instruction 12.

93. Before a will can be set aside upon the ground of undue influence, the jury must believe and find that at the execution of the will the mind of testator was so under the control and influence of the beneficiaries charged, or some or one of them, that testator could not, if he had wished, have made a will different from that executed. [Instruction XXXIV.

94. Before a will can be set aside upon the ground of undue influence, the jury must believe that testator had not at the time of execution of the will sufficient strength of mind to resist the influence of the beneficiaries, and each of them, charged as undue. [Instruction XXXIV.

95. Proof of undue influence (a) must generally be gathered from the circumstances of the case; (b) very seldom is a direct act of influence patent; (c) persons intending to control another's actions, especially as to a will, do not proclaim the intent. [Instruction 12.

96. Among the circumstances from which proof must generally be gathered of undue influence exercised upon a testator are: (a) Whether he had formerly intended a different testamentary disposition; (b) whether he was surrounded by those having an object to accomplish to the exclusion of others; (c) whether he was of such weak mind as to be subject to influence; (d) whether the alleged will is such an one as would probably be urged upon him by those surrounding him; (e) whether the persons who surrounded him were benefited by the alleged will to the exclusion of formerly intended beneficiaries. [Instruction 12.

97. Undue influence is not a presumption, but is a conclusion from proven facts and circumstances. [Instructions XXXII; XXXIII. 98. Undue influence should not be found upon mere suspicion. [Instruction XXXIII.

99. Undue influence cannot be presumed; and it lies upon the contestants of a will to prove it by a preponderance of evidence. [Instructions XXXI; XXXII; XXXIII.

100. The law will not presume undue influence; (a) from the mere fact of opportunity or a motive for its exercise; or (b) because of testator's mental or physical condition; or (c) that testator's children, or any of them, were excluded from his will. [Instruction XXXIII. 101. It is only that degree of influence which deprives a testator of his free agency, and makes the will more the act of others than his own, which in law avoids it. [Instruction XVIII.

102. Undue influence (a) must be exerted upon the very act contested ; (b) it must be a present influence acting upon the testator's mind at the time of alleged execution. [Instruction XVIII.

103. To exert an undue influence the person (beneficiary) charged must be of sound mind. [Instructions XXIX; XXX. And see XXVIII. 104. Where a beneficiary under a will who was charged with having exerted undue influence over the testator had been adjudged insane at a date before the execution of testator's will, and there had been no judicial restoration to sanity, the jury were instructed that such beneficiary must be deemed incompetent to have entered into any agreement or conspiracy with anybody. [Instructions XXX; XXVIII.

105. Procuring a will to be made, unless by foul means, is nothing against its validity. [Instruction XVIII.

106. A will procured to be made by (a) kindness, (b) attention, and (c) importunate persuasion which delicate minds would shrink upon, cannot on that ground alone be set aside. [Instruction XVIII. 107. (a) Neither advice, argument nor persuasion vitiates a will which is executed freely and from conviction; (b) notwithstanding the will might not have been made but for such advice and persuasion. [Instruction XVIII.

108. Influence arising from legitimate family and social relations must be allowed to produce its natural result, even in the making of last wills; such influence being a lawful one. [Instruction XX.

109. (a) However great may be the influence exerted by and through legitimate family and social relations, there is no taint of unlawfulness in it; and (b) there can be no presumption of its actual unlawful exercise merely from the fact of its known existence and its manifest operation on testator's mind by a reason for his testamentary dispositions. [Instruction XXI.

110. The influences arising from legitimate family and social relations are naturally very unequal, and naturally productive of inequalities in testamentary dispositions, and no will can be condemned because of their proved existence, and evidence in the will itself of their ef

fect; for such influences are lawful in general, and the law cannot criticise and measure them so as to attribute to them their proper effect. [Instruction XXII.

111. A wife has the right to advise and to exercise her influence to move and satisfy the testator's judgment. [Instruction XXVII. 112. A husband's testamentary disposition to a wife cannot be denied effect because it was due to the influence she acquired over him by her good qualities and kind attention. [Instruction XXIII. 113. If a wife urge upon testator the propriety of leaving her his property, and excluding others, it does not constitute undue influence. [Instruction XXVI.

114. If a wife, by her virtues, has gained such ascendency over her husband, and so riveted his affections, that her good pleasures are law to him, such influence can never be ground for impeaching a will in her favor, even though it exclude the rest of the family. [Instruction XXIV.

115. Children may exert influence to induce the parent to make a will. [Instruction XXVII.

116. A will cannot be set aside because it is the result of (a) an undue fondness for one member of testator's family, or (b) a causeless dislike for another. [Instruction XXV.

117. While a person of unsound mind may be the victim of undue influence, the question as to any influence, or the character of it, becomes immaterial if the jury finds mental unsoundness at the execution of the contested act-a probated will-there being an issue, also, as to soundness of mind. [Instruction 12. 118. The Court instructed the jury that their verdict upon the issue of undue influence must be "No," if they believed from the evidence (a) that the will was prepared upon and according to testator's instructions, and (b) was read to and understood by him, and (c) accorded with his wishes; (d) that at such times and at execution of the will he possessed sufficient mental strength and control of his faculties to determine such matters; and (e) that if he had wished he could have made other disposal of his estate. [Instruction XXXV. 119. A fraudulent misrepresentation must contain the following elements: (a) materiality; (b) falsity; (c) knowledge of its falsity by the party making it, or want of reason by him for belief and lack of belief in its truth; (d) intent to deceive; (e) accomplishment of intent; (f) resultant act of party deceived contrary to what it otherwise would have been. [Instructions XXXVI; XXXVII; XXXVIII;

13.

120. A fraudulent misrepresentation suflicient to avoid a will (a) must have been made by a beneficiary; and (b) have operated upon the testator; and (c) so operated that the will executed would not have