delivered the opinion of the court.
This is an appeal from a decr.ee of the Supreme Court of the District of Columbia. The facts are these:
On December 9, 1879, Brooke Mackall, Sr., made a will, whereby he gave to his children, other than Brooke Mackall, Jr., all his property, declaring as to skid Brooke Mackall, Jr., that “by this my last will and testament I do not give, devise, or bequeath to my son, Brooke Mackall, Jr., any part, parcel or portion of my property whatever, as the said Brooke Mackall, Jr., heretofore received from me many and ■large advances, and as it would be unjust to my other children hereinbefore named, but I direct Leonard to pay him one
Ás the bill was to set aside the deed as a whole, as having been obtained through undue influence, the decree is apparently incongruous, in that it declares that the deed be sustained as a confirmation of the title of Brooke Mackall, Jr., to lot No. 7, and void as to the other real estate; for if it were, as charged in the bill, a deed obtained through undue influence^ it would seem that it should have been adjudged void in toto, and not sustained in part. It will be observed, however, that
Further, in respect to this lot No. 7, it must be observed that the answer alleges that the defendant, Brooke Mackall, Jr., wasj and had been for many years, the equitable owner. So, if the deed, as an independent and- separate instrument, was valid, or the allegation of Brooke Mackall, Jr., that he was the equitable owner of lot No. 7, is true, any informality in the language of the decree may be disregarded, for in substance it was right. This compels an inquiry not merely into the circumstances surrounding the execution of - the deed, but also as to the relations of the parties to this litigation to one another, and to the decedent.
More than twenty years before his death differences arose between Brooke Mackall, Sr., and his wife, which culminated in a.decree of divorce. In those differences Brooke Mackall, Jr., sided with his father, the other children with their mother; and a large part of the record before us is made up of a story of1 those differences, and of the conduct and testimony of the children. No good purpose would be served by parading in this opinion those unpleasant facts, or by attempting to pass judgment in approval or condemnation of the conduct of either. Charity kindly throws a mantle of oblivion over these matters of long ago; and justice requires only notice of the fact that in the separation of parents the children took part, the one with the father, the others with the mother. During the score of years which intervened between this separation and the death of Brooke Mackall, Sr., the defendant, Brooke Mackall, Jr., was his constant companion and friend. This-intimacy was unbroken, save in two instances of short duration each, the latter one being in the fall of 1879, during
*172 ' “ Influence- gained by kindness and affection will not be regarded as ‘undue,’ if no imposition or fraud be practised,even though it induce the testator to make an unequal and unjust disposition of his property in favor of those who have contributed to his comfort and ministered to his wants, if such disposition is voluntarily made. Matter of Gleespin's Will, 26 N. J. Eq. 523. . . . Confidential relations existing between the testator and beneficiary do not alone furnish any presumption of undue influence. . Lee v. Lee, 71. N. C. 139. Nor does the fact that the testator on his deathbed was surrounded by beneficiaries in his will. Bundy v. Mo-Knight, 48 Indiana, 502. . . . Nor that the testator, an old-and helpless man, made his will in favor of a son who had for years cared for him and attended to his business affairs, his other children having forsaken him. Elliott's Will, 2 J. J. Marsh. 340; S. C. Redf. Am. Cas. on Wills, 434. . . 1 It would be a great reproach to the law if, in its jealous watchfulness over the freedom of testamentary disposition, it should deprive age and infirmity of the kindly ministrations of affection, or of the power of rewarding those who bestow them.
“Undue influence must destroy free agency.. It is well settled' that in order to avoid a will on the ground of undue influence, it must appear that the testator’s free agency was destroyed, and that his will was overborne by' excessive importunity, imposition or fraud, so that the will does not, in fact, express' bis wishes as to the disposition of' his property, but those of the person exercising the influence.”
. That the relations between this father and his several children during the score of years preceding his death naturally inclined him towards the. .one and against the others is evident, and to have been expected. It would have been strange if, such a result had not followed; but such partiality towards the one, and influence resulting- therefrom, are not only natural, but just and reasonable, and come far short of presenting the undue influence which the law denounces. Eight or wrong, it is to be expected that a parent will favor the child who stands by him, and give to him, rather than the
But the case does not rest upon this alone. Brooke Mac-' kail, Jr., alleged in his answer that lot seven was equitably his, having been given him years before by his father; and this allegation seems to have been recognized as true by the court below, for it established the deed as a confirmation of his title. It appears that in November, 1851, Brooke'Mackall, Sr.,'purchased the lot, one-half of Key and Dunlop, and the other half of W. W. Corcoran. Neither party at the time made a deed, and from Key and Dunlop the title was' only, acquired' thereafter by a decree in equity. A deed from Corcoran was not . obtained until some time in 1865. Prior to this time the father had given the property to the, son, and placed him in possession. This fact is proved, not alone by the testimony of the'pon, or the uncertain recollection of witnesses, but from written statements, which carry no taint of failing memory, and speak the same language one day and another. On October 6, 1865, Mr. Hyde, the agent for Mr. Corcoran, gave a certificate, in which, after mentioning the balance claimed to have | been owing, he adds : “ This sum has been paid, and Mr. Mackall asks, in lieu of the delivery of the deed as aforesaid to himself, to. have, the property conveyed to Brooke Mackall, Jr.,; he being a party to' the same.” Qn No-, vember 28,1865, Brooke Mackall, Sr., gave a deposition, which was filed in a case, -in the Supreme Court of the District Of Columbia, in which he stated : “ Mr. Corcoran also refused ,to give me a deed-unless I paid him additional for some back taxes,-which I refused to do. I never did get a deed until the. other day, since his return from Europe. This property
“Washington, March 3, 1866.
“ Maj. Gen’l Meigs, Quartermaster Genéral.
“ Sib : Dtiring the lifetime of Gov. Corwin, I employed him individually in behalf of my son, Brooke Maekall, Jr., of this city, who owns the' lot on the corner of New York Avenue and 14th Street, occupied by paymaster-general department, to procure and collect from said department what was due to said Brooke Maekall, Jri, for rent and use of the premisés. Since Gov. Corwin’s death neither. Brooke nor myself, as his agent, has ever recognized any one except Black,- Lamon & Go. as attorneys in the premises, as will appear by power of attorney to them from Brooke Maekall, Jr. Mr. Corwin desired, .meto allow his partner, Judge Johnson; to assist in the claim, but I .refused to allow any one but himself to take charge of it, having confidence in him as an old friend.
“ Yery respectfully, (Signed) B. Maokall.
. “ I hereby relinquish all right to, and authorize Brooke Maekall, Jr., -to receive the amount awarded for use of, property on 14th Street and New York Avenue, as it is his.
“ Witness: (Signed) B. Maokall.
“(Signed) . L. G.'Bbandebubg.
“ 22d October, 1865.”
On July 12, 1871, Brooke Mackall, Sr., filed an answer under oath in said cause, which was entitled Alfred Richards et al. v. Brooke Mackall et al., in which he alleged “ that he purchased said lot and promised to give it to his son, Brooke Maekall, Jr., at some future time, but has not since been in
Again, litigation concerning this lot. has been twice at least to this court. Mackall v. Richards,
Another matter requires notice : The will referred to gives his property to his children other than Brooke Mackall, Jr., and this, notwithstanding the fact that he had made two prior wills, giving his property to Brooke Mackall, Jr. But as explaining this last will, in the second item he says : “I do not give, devise, or bequeath to my son, Brooke Mackall, Jr,, any part, parcel or portion of my property whatever, as the said Brooke Mackall, Jr., heretofore .received from me many and large advances.” While no property is mentioned, yet, reading between the lines, it is evident that the testator recognized the validity of his parol gift of-lot 7; and doubtless that" was what was meant when he said that Brooke Mackall, Jr., had heretofore received from him large advances. It was his other property which he was giving to his other children ; and it would be straining the language of the will to suppose -that thereby he intended to ignore his parol gift, and to dispossess this son of that which he had given to him theretofore.
Putting these various matters together, we think that whatever criticism may be made upon the form- of the decree, it is substantially right, and therefore it" is" Affirmed.