89 Pa. 220 | Pa. | 1879
delivered the opinion of the court, March 17th 1879.
It is strongly contended that there were disputed facts disclosed by the evidence from which the jury might have found that an undue influence was exerted over the mind of the testator. It is clearly settled that the constraint which will avoid a will must be one operating in the act of making the will. Threats, violence or any undue influence long past, and not shown to be in any way connected with the testamentary act are not evidence to impeach a will: McMahon v. Ryan, 8 Harris 329; Eckert v. Flowry, 7 Wright 417; Thompson v. Kyner, 15 P. F. Smith 368. In an issue devisavit vel non on the allegation of undue influence by the mother of an illegitimate child, the legatee in the will, the unlawful cohabitation of the mother with the testator is not of itself sufficient evidence from which a jury could infer undue influence: Rudy v. Ulrich, 19 P. F. Smith 177. It is true that if there are other facts, unlawful cohabitation may be a circumstance of w'eight": Dean v. Negley, 5 Wright 317; Main v. Ryder, 3 Norris 217. In the case before us there was not a scintilla of evidence of the exertion of any ..influence over the mind of the testator in the testamentary act. His capacity was perfect, the act was free and voluntary; a respectable member of the bar was called in; everybody was excluded from the room when his instructions were given, and the will when afterwards drawn in form was executed in the presence of the two witnesses who attested it. There was never a case in which a will was executed less liable to. exception on this ground. It is true that the testator and the
Decree affirmed, and appeal dismissed at the costs of the appellants.