86 Tenn. 173 | Tenn. | 1887
This is an action of devisavit vel non. Tbe will in contest is that of James A. McClure, deceased. Probate is resisted upon two
The principal beneficiary is the executrix, Mrs. McClure, and the contestants seek to avoid the will upon the ground that she unduly influenced the testator to make a will in her favor. There was proof tending to show that she lived witli the testator a number of years as his mistress, and that a marriage which was contracted between herself and the testator several years after this illegal relation had begun was in fact an unlawful and bigamous contract. The coiitestants requested the Court to charge concerning this alleged mandage “that if at the time of the marriage between James A. McClure and Blanche Anderson, November 7th, 1872, the said Blanche Anderson was lawfully married to James W. Felts, and the bonds of matrimony between them were still subsisting, her marriage to McClure was a nullity.” This was refused, the Circuit Judge indorsing upon the request : “ This is true in fact, but I see no occasion to charge it.” Was this error?
The question as to what is undue influence sufficient to avoid a will is always one difficult to define. Obviously, each case must largely depend upon its own circumstances. In most cases it arises where the testator, by reason of habits, health,
Clearly, it is an important fact for the consideration of the jury as to what was the stand-point from which it is alleged the undue influence was exercised. The just and honorable influence of the pure and lawful relation of a wife cannot he put upon the same plane as the influence of a mistress. The influence of the virtues and affec-iions of a wife may .powerfully operate to move the mind of her husband to .a testamentary disposition very favorable to her, and such influences are to be distinguished from the charms and meretricious arts of a lewd woman. The influence of a lawful relation may result in testamentary dispositions which ought not to be set aside, when, if they resulted from the influence of an unlawful and immoral relation, would produce deep suspicion. Especially would the fact of an immoral relation be important where the bequest in favor of the object
In this view, we are of opinion that it was error to refuse the charge requested, to the end that the jury might give such weight to the true relation of the parties in ascertaining the kind, degree, and extent of the influence operating upon the mind of the testator. If it should appear, however, that the marriage was contracted innocently, and in the honest belief that the previous marriage relation had been lawfully dissolved, then, of course, the marriage, while illegal, would not be immoral, and the. effect of the mere illegality of the relation would be obviated. How the fact was as to the ignorance of the parties as to the existence of the previous marriage we do not, of course, undertake to say. The principles concerning the distinction between the influence of a lawful and unlawful relation are well supported in two able opinions to which we have been referred. Dean v. Nagley, 41 Penn. St., 312; Kissinger v. Kissinger, 37 Ind.
But when the older will is in existence, and is carefully preserved by the testator after the destruction of the later, and no other facts appear, there can be but little question that it was the intention of the testator to republish the former will. 1 Red. "Wills, 374.
The fact, however, if the jury should deem it established, that the purpose of the testator in destroying the later will was to write another, was an important fact, and sufficient, without other evidence of the intent of the testator to republish his first will, to overcome the presumption arising from the mere fact that this will was found after testator’s death among his papers, as charged by the Court. It was error, therefore, to have refused the request above set out. The case will be reversed and a new trial granted.