198 Pa. 326 | Pa. | 1901
Opinion by
In this issue devisavit vel non the contestants allege want of testamentary capacity' and the exercise of undue influence over the testatrix at the time her will was executed. We have, with proper care, reviewed all the testimony and are unable to discover what could have justified the jury in finding that the testatrix did not at the time she executed her will, possess that intelligent perception and understanding of the disposition she was about to make of her property, which are essential to a valid testamentary distribution of one’s estate. In support of her alleged incapacity, it is true, several witnesses were called who expressed opinions that she was not fit to do business or to make a will, but that of no one of them was based upon facts which sufficiently indicated the disappearance of the intelligence which she needed when she came to dispose of her property;
The first point presented by the appellant was “that upon the question of undue influence, the verdict should be for the plaintiff.” This was refused. It should have been affirmed. “ Undoubtedly undue influence may so operate as to destroy a will, for in such a case the testator is not a free agent; he becomes the mere implement of another’s craft, and his testament that of the superior will. But influence short of this is not what is technically known as ‘undue influence.’ This term has been carefully defined and its effect considered in many of our own cases, among others, Thompson v. Kyner, 65 Pa. 868, Eckert v. Flowry, 43 Pa. 46, McMahon v. Ryan, 20 Pa. 329, and Tawney v. Long, 76 Pa. 106. According to these cases, undue influence may be exercised either through threats or fraud; but however used it must, in order to avoid a will, destroy the free agency of the testator at the time and in the very act of making the testament. Solicitations, however importunate cannot of themselves constitute undue influence; for though these may have a constraining effect, they do not destroy the testator’s power to freely dispose of his estate: ” Trost v. Dingier, 118 Pa. 259. The testimony will be searched in vain to find undue influence tested by the foregoing, if it can be found at all. The jury should have been instructed to find for the will. The judgment' is reversed, the issue directed to be set aside and the costs are to be paid by the appellees.