into such relation; yet the law does not attempt to guard against those contingencies. A man may be the companion of another, and may encourage him in evil courses, and so obtain what is called an undue influence over him, and the consequence may be a will made in his favor. But that again, shocking as it is, perhaps even worse than the other, will not amount to undue influence.

To be undue influence in the eye of the law there must be to sum it up in a word coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person's favor, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence.

The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness' sake, to do anything. This would equally be coercion, though not actual violence.

These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of some one else offering them, do not amount to undue influence unless the testator is in such a condition, that if he could speak his wishes to the last, he would say, "This is not my wish, but I must do it."

If therefore the act is shown to be the result of the wish and will of the testator at the time, then, however it has been brought about for we are not dealing with a case of fraud-though you may condemn the testator for having such a wish, though you may condemn any person who has endeavored to persuade and has succeeded in persuading the testator to adopt that view - still it is not undue influence.

There remains another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary also to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced.

DOWNEY v. MURPHY.

SUPREME COURT OF NORTH CAROLINA. 1834.

[Reported 1 Dev. & B. 82.]

THIS was an issue of Devisavit vel non as to a script produced by the plaintiff as the will of John G. Smith.1

On the trial before Norwood, J., at Granville, on the last Spring Circuit, the plaintiff having made out a prima facie case, by proof of the formal execution of the supposed will, for the defendants, the caveators, it was objected, that the deceased, at its execution, was not of perfect memory, and if he had been, that he was at its execution weak in body and mind, and in extremis, and that the execution by the supposed testator was, under these circumstances, procured by the fraudulent practices of the plaintiff, who was the executor, and took a large beneficial interest under the supposed will.

Upon the issue much testimony was offered by both parties. It was alleged by the defendants, that the supposed will never had been read over to or by the testator; to establish the contrary, the plaintiff, among other things, endeavored to prove, that an interlineation near the end of the paper, was in the handwriting of the deceased. The deceased, when in health, was a man of a clear head, an acute intellect, and of decided business habits; but at the time of the execution of the will was laboring under a lingering disease, which had prostrated his physical powers, and had affected his understanding, as was contended by the defendants.

It was admitted that the will was in the handwriting of the plaintiff, who was a favorite nephew and confidential agent of the deceased; but it was contended that it was written from instructions given by the deceased.

His Honor, in his charge to the jury, informed them, that in order to the validity of a will, the testator must have a sound and disposing mind and memory; but that though his mind might be weakened or impaired from age and bodily infirmity, still if he retained intellect enough to make a rational disposition of his estate, it was sufficient: that as with a deed, so with a will, in general, if executed by the party, it was sufficient, though not read over, or the contents thereof shown to be known to him the act of execution recognizing and adopting the instrument. But that there might be circumstances which would require a different rule; that a will being written by a legatee, was looked upon as a suspicious circumstance, the suspicion being greater or less according as the interest was greater or smaller; and that where a will was written by one taking a large and beneficial interest under it, for a testator, in his last illness, and under great 1 Part of the case is omitted.

weakness from disease, and the writer was a confidential agent and adviser of the testator, it was necessary, in support of the will, to produce some evidence to show a knowledge by the testator of its contents, as that it was read to him or by him; or if not so read, proof that it was written from instructions by the testator, and according to them, would be sufficient, as showing that he knew the contents; that for this purpose the testimony as to the interlineation being in the handwriting of the deceased was submitted to them, and if in his handwriting, it would be important evidence; the evidence and the inference to be drawn from it, was for them.

A verdict was returned for the caveators, and the plaintiff appealed. Iredell and Devereux, for the will.

Nash and Badger, contra.

RUFFIN, C. J. [considered the questions of evidence, the statement of which has been omitted, and then continued thus:] Having considered these points, that which arises upon the instructions to the jury is next presented. It is one of much importance, both in its bearing upon the interests of these parties, and as a general question of law. His Honor first stated to the jury, as we conceive, correctly, that to the validity of a will a disposing capacity was necessary, and a knowledge of the contents of the instrument; and that in point of law, such a knowledge was presumed from the fact of execution, if the capacity was satisfactorily established. But he further stated, there were cases which required a different rule; and, applying the exception to the case before him, he proceeded to lay down these principles to the jury: That a will being written by a legatee was in law a suspicious circumstance; the suspicion being greater or less in proportion to the interest; that when a will was written, by one taking a large and beneficial interest, for a testator in his last illness, and great weakness from disease, and the writer was a confidential agent and adviser of the supposed testator, it was necessary in support of the will, to produce some evidence to show a knowledge by the testator of the contents of the will, as that it was read to him, or by him, or, if not so read, that it was written from instructions and according to them, which would be sufficient.

The instructions assume that in point of faw, the validity of the will depends upon such proof; and that in such a case, the inquiry is not one of fact, whether the maker of the instrument actually knew, or was actually ignorant of the contents of the paper; but is an inference of law, either that he did not know them, or that it does not appear, and it ought to appear, by plain proof, that he did know them. The correctness of the instructions depends therefore upon the inquiry, whether by the laws of this State, these are inferences of fact to be drawn by the jury, or are to be stated by the court as fixed legal principles.

In support of the opinion of the court, many cases have been read from the ecclesiastical courts of England; in which the rules laid down

to the jury are stated as rules or principles, which govern those courts. But those cases and the terms in which the judges deliver themselves, are far from satisfying us, that the nature of the inquiry makes it, in a court of common law, the province of the judge and not the jury to determine it. The Court of Probate in England decides every question both of law and fact, which the case presents; the capacity of the testator, in all its various gradations as perfect, doubtful and defective. Where of the last kind, the instrument is necessarily inoperative under all circumstances. But where a testable capacity is found, the degree of proof that the instrument was freely executed, and that its provisions were really assented to by the maker, must necessarily vary with the degree of capacity, in order to satisfy a rational mind, that there was such free agency, knowledge and assent as the law demands. That tribunals such as the ecclesiastical courts, constituted of a single judge, holding the court permanently, and deciding the whole case, should, in the course of repeated discussions of evidence of a similar kind, adopt, for the ease of the court, and for the information of suitors, some propositions, as the measure of that proof, to be deemed sufficient or insufficient under particular circumstances, is not surprising. To the usefulness of such a court, such rules, as principles for the government of the judge, are indispensable. They are requisite, both to relieve the judge from unnecessary labor, and to exclude the suspicion and the danger of unlimited and irresponsible discretion upon all questions of fact; which in a permanent magistrate is intolerable. Hence, in the very able opinions which have been delivered by the judges of those courts, are constantly found expositions of the reasons on which the credit to be given to the witnesses ought to rest, and on which inferences of particular facts may be rationally drawn from certain evidence; and such reasons, and the determination to which they led in one case, are naturally appealed to by counsel, and acknowleged by the court in succeeding cases. At first they may be respected only as the conclusions of an able, well-instructed and experienced mind, well calculated to influence another mind to adopt the same conclusions. But they soon acquire the authority which a succeeding judge is neither able nor willing to deny to them, of being precedents. For, as has been forcibly remarked, it is the professional tendency to repose on precedents; and it is fortunate for the institutions of every country, that there is such a tendency.

That the principles upon which the Ordinary in England requires particular proof, to rebut the presumption of fraud in obtaining a will from a man of weak or impaired faculties, are obligatory upon each succeeding judge who may sit in those courts, seems to be a settled point in those courts. Nor can it be denied that those principles have been most carefully considered and cautiously settled. They address themselves forcibly to every rational mind; and were most properly urged against the instrument offered for probate in this case. The court is not to be understood as pronouncing them insufficient to repel

all the presumptions drawn from the execution of the instrument by a testator in the condition of mind and body imputed to Mr. Smith by the witnesses. Upon its sufficiency or insufficiency this court would carefully abstain from intimating any opinion; and allusion is made to it, only to prevent the supposition, that our decision rests on a difference of opinion between us and His Honor upon the weight to which the evidence was entitled. On the contrary, we think the question is, whether either court can determine its weight; in other words, whether the inquiry be one of fact or law. That question cannot be determined by the decisions of the ecclesiastical courts, for whether the nature of the inquiry be of the one kind or of the other, the remarks, rules, principles, by which one great judge was guided in the discussion, weighing and deciding on evidence of a particular character, in a particular case, would be authoritative on another upon the like evidence in a like case. The question depends upon the nature of the inquiry according to the common law of England, and the Statute laws of this State. For although the question is one of probate, and therefore might appropriately be governed by that portion of the ecclesiastical law which is incorporated into the common law and administered in peculiar jurisdictions; yet it has seemed good to the legislature to refer it to a tribunal of a different nature, a jury. That tribunal is the favorite of the common law as the arbiter of facts; and not less so with the legislature of this State than with our ancestors. For not only is the decision of all facts within the power of a jury, but in this State it is exclusively their province to decide them, uninfluenced by the opinion of the judge upon the weight of the evidence, or its sufficiency to prove any fact in dispute. To the jury any argument may be urged impugning, or enforcing deductions of one fact from another proved, or from the defect of full proof of either the one fact or the other; and the opinions of men of able and practised minds may properly be laid before them in argument, as likely to influence their judgment by the force of the reasoning which led to those opinions, or by the authority of the opinions themselves, coming from such sources. But it is impossible to say, that such a tribunal is bound as to a conclusion of fact, by the precedent set by another tribunal for the decision of facts, whether consisting of a single judge, or of the numerous judges who compose a jury. There is no law to such a body but its conclusions upon the evidence as to the fact sought.

Is there a principle to be found laid down anywhere in the common law, as a positive precept, that it is necessary to the validity of the will of a man, written in his last illness, and when very weak from disease, by one who takes a large legacy under it, and was the confidential friend and adviser of the alleged testator, that those who offer the will should distinctly prove, besides the testable capacity of the maker, and the due formal execution of the instrument, the further facts, by distinct evidence, that the maker knew and approved of the contents of the instrument? If there be such a proposition, it has escaped our researches