Oftentimes fraud is confounded in the books with undue influence, when the two things are in law distinct wrongs, proceeding on different principles. The testamentary common law, which is undoubtedly a part of our common law by constitutional reservation (Matter of Will of Smart, 84 Misc. Rep. 336, 145 N. Y. Supp. 838, 840; Matter of Martin, 80 Misc. Rep. 17, 141 N. Y. Supp. 784, 791), observes the distinction between undue influence and fraud or duress.

Undue influence in this court, while it always imports moral coercion, is also distinct from "duress," as interpreted in the courts of common law and equity, where duress consists in menace or actual or threatened physical violence or imprisonment. Duress is a physical wrong; coercion, a moral wrong. Where duress is established in law or in equity, no consent of a testator at all is possible. Undue influence in this court differs from duress in many particulars. Duress is primarily a matter of legal cognizance.

In equity an allegation of undue influence is a well-known allegation in suits to rescind contracts or to enforce specific performance of contracts, and the rules laid down in equity, in so far as they relate to the invasion of a "freedom of the volition of a contracting party," are very analogous or similar to the rules laid down in the testamentary common law in relation to freedom of testators' wills in respect of testamentary acts procured from them by undue influence. The rules of the testamentary common law are, however, naturally more specific or concrete for our purposes than those familiar to equity practitioners, and in this court it is the testamentary common law which is primarily controlling in respect of undue influence exercised over testators. Both Anson and Pollock, in their justly celebrated treatises on Contracts, make some very discriminating comments on the principles relating to fraud and undue influence as applied in the realm of contracts or to gifts inter vivos. But it is not from such sources that the testamentary common law derives its principles governing undue influence.

What is undue influence in respect of testamentary acts and dispositions has been stated to be a question difficult to answer in the abstract. Doubtless definition is always a difficult logical process. Legal definitions in particular are not usually well regarded (Swinburne, 6), as they are generally a posteriori and involve at some stage the inductive process and not the deductive process familiar to a priori disciplines. The vice of principles or definitions arrived at by incomplete induction is well understood, for better reasons than those given by Swinburne. But the a priori definitions of testamentary law are different. In so far as the legal definition of undue influence is a priori, it is recognized in testamentary common law, which was built up, originally by scholastic lawyers trained in the civil law and the old logical disciplines.

Undue influence in testamentary law postulates freedom of the will, or, in more modern philosophical verbiage, that a testator's volition is indeterminate. Now just at this point testamentary law touches some of the deepest principles in the philosophies of all the ages. Freedom of the will (libertas arbitrii) is conceded to be one of the profoundest

problems in all departments of metaphysics, and yet it determines, not only many principles of testamentary law, but all theories of life and morality. Testamentary law, which, as stated above, is scholastic in origin, takes no note of modern philosophical doubts on freedom of the will, and it invariably presupposes a testator's capability of selfdetermination, or, in other words, the absolute and inherent freedom of his disposing mind or will. Testamentary common law, then, proceeds to determine what acts and things subvert or invade the freedom of the will of a testator, so as to vitiate his testamentary acts. It is interesting to note that the scholasticism of the canonists, or the dual or Aristotelian school of philosophy, still influences all our testamentary common law, and to my mind it is fortunate for our jurisprudence that it has been so. If we were to adopt a more modern philosophy, and reject the doctrine of freedom of the will, testamentary law would have to be entirely reconstructed.

[3] In order that a testamentary act be valid, the testamentary common law requires, and has always required, not only that the testator must be free from physical restraint-duress (Godolphin, Orphan's Legacy, pt. 1, c. 9)—but that his soul, mind, volition, or will, that dual principle of the ego, should also be free and not coerced (Swinburne, pt. 7, § 2, 1868, L. R. 1, p. 481). It will be observed that the old technical term of testamentary law employed in this connection is "coerced." I have never seen the origin or history of the legal term "coerced" discussed, although it runs through all the modern leading cases as the one sufficient criterion of undue influence. Williams v. Gonde, 1 Hagg. 581; Wingrove v. Wingrove (1886) 11 P. D. at page 82; Children's Aid Society v. Loveridge, 70 N. Y. at page 394, and see cases cited in Re Campbell's Will, 136 N. Y. Supp. 1105, and in Re Van Ness' Will, 78 Misc. Rep. 592, 139 N. Y. Supp. at page 492. That the term "coercion' is a mere translation of Latin usage of the canonists could be easily demonstrated.

The slightest reflection will disclose that coercion, in the sense of a compulsion of the mental state of a human being, is a very different force or influence from a coercion which affects his rights to physical freedom. Of the distinction just denoted testamentary common law takes full notice. Both testamentary law and the common law assume, as already stated, the inherent right to freedom of the will and the inherent right to liberty or freedom from physical restraint. That the principle-that coercion is the ultimate test of undue influencecrept from the canonists into our testamentary law is susceptible, as I said, of demonstration.

Mr. Williams, in his most excellent compendium of the Law of Wills and Succession, p. 31, notes an admirable definition of undue influence, taken, he says, from the Roman law: "Quamvis si liber esset noluisset, tamen coactus voluit." I do not find the original of this citation, but the Roman law also required that a will must originate. in the free will of the testator, and if a testator was coerced to make or alter a will, the will was voidable for this reason (D. 29, 6, 1), and the property then reverted to the fiscus. The Roman law was particularly precise and refined on principles of this character. Const. 1,

C. 6, 34. Violent or impetuous pressure, whereby a testator was swayed against his free will, vitiated a Roman testament. While the principle of wrongful coercion of a testator's will undoubtedly originated in the Roman law, any coercion was in the old spiritual courts of England, whence we derive our testamentary common law, a wrong. In those spiritual courts the term coercion had even a larger meaning. We find that Ayliffe employs it in the Parergon Juris Canonici, and Sir Matthew Hale likewise, in references to the sentences of the spiritual courts, in the general sense of restraint.

We have now arrived at a point where it may be stated generally that in probate law any wrongful interference by or on the part of a beneficiary with a testator's freedom of will, or volition, may be fatal to his testamentary act, provided such interference amounts to coercion. Brick v. Brick, 66 N. Y. at page 149; Coit v. Patchen, 77 N. Y. at page 539, and the authorities cited; Matter of Will of Van Ness, 78 Misc. Rep. at page 599, 139 N. Y. Supp. 485. To ascertain when coercion and consequent subversion of intention exist requires a very extended and refined inquiry in a probate case, and for this reason the courts allow great latitude on an issue of undue influence. In re Woodward, 167 N. Y. at page 31, 60 N. E. 233; Horn v. Pullman, 72 N. Y. 269, 276; Boyse v. Rossborough, 6 Ho. L. Cas. 42, 58; Rollwagen v. Rollwagen, 63 N. Y. at page 519.

[4] No other issue in a probate court is more subtle than undue influence, as it involves not only legal, but psychological and ethical, problems of great delicacy. See "Psychology, as Applied to Legal Evidence," by Arnold, of the Calcutta Bar, p. 156. But it will suffice to say, roughly, that a testament which results from fraud or force of any kind is in general invalid, as it is not then the expression of the testator's will. If the fraud or force clearly affect only a part of the testament, it does not necessarily invalidate the whole. But if there is doubt it may affect the whole will. Matter of Van Ness, 78 Misc. Rep. at pages 598, 600, 139 N. Y. Supp. 485.

[5] Undue influence can rarely be made out by direct evidence and hence indirect or circumstantial evidence is sanctioned by authority in support of this allegation. Rollwagen v. Rollwagen, 63 N. Y. 519, cited Matter of Van Ness, 78 Misc. Rep. 602, 139 N. Y. Supp. 485. The proofs offered in support of the allegation of undue influence in this proceeding are largely in the nature of circumstantial evidence. Circumstantial or indirect evidence may be cogent or it may be slight. It is always to be received subject to rules relating to legal relevancy. Although evidence may be logically relevant, if it is not legally relevant it cannot be received in a court of justice. In this case the testimony of the acts and conduct of those charged with the exercise of undue influence was very liberally taken, and that it was relevant to the issues raised can hardly be disputed. The character of the evidence corresponds to that always allowed in the older courts of probate, and it throws much light on the conduct and motives of those charged with conspiracy, fraud, or undue influence. That some of it is competent under the modern law of evidence applicable to jury trials I doubt, and I shall therefore reconsider it again. At common law, the common

law of evidence, it will be observed, had little relevancy to proceedings in courts of equity or probate. In re Benjamin's Will, 136 N. Y. Supp. at page 1082.

[6] But if the common law of evidence is controlling in this matter, then by that law, when the state of mind of a party with reference to a transaction at issue is material, as it is on an issue of undue influence, all acts and declarations from which it may be inferred are evidential. See In re Van Ness' Will, 78 Misc. Rep. 592, 139 N. Y. Supp. 506, 507, and cases there cited.

For many years prior to the making of the disputed will the testatrix had lived alone with a single servant in her own substantial private dwelling house in this city. Her habits had become those of an elderly recluse in a great measure, and she found her diversions and enjoyment largely within the four walls of her own dwelling. Her servant, her agents, her rents, her maladies, and her simple diversions made up the round of a monotonous existence. Among those who ministered during these years to the wants of testatrix was Mrs. Stein, the wife of the executor under the will in question. Although not related by blood, Mrs. Stein always addressed the testatrix as "Aunt," and the evidence discloses that if testatrix had a real regard for any one, or real reason for such regard, it was for Mrs. Stein, who for years assiduously cared for testatrix in sickness and in health. But during these many years it is evident that the testatrix found amusement or distraction in the society of other visitors and attendants besides Mrs. Stein. Among these others are prominent more particularly her lawyer, Mr. Quintin, and her neighbor, Mr. Leis, a butcher in the quarter long inhabited by the testatrix. Mrs. Hermann had seen Mr. Leis grow up from an apprentice boy to a man of family and business. The intimacy and intercourse between testatrix and all these persons and their connections just mentioned figures largely and with wearisome iteration in the testimony.

The

It is obvious from the testimony that Mrs. Stein regarded herself as a legitimate object of the bounty of testatrix and that she regarded the others as intruders. It is equally obvious that Mr. Quintin and Mr. Leis, legatees for considerable sums under an earlier testament made by testatrix, regarded Mrs. Stein and her faction as dangerous opponents. The conduct of these factions for the old woman's favor and testamentary regard figures largely in the evidence. domestic politics of these factions, one headed by Mrs. Stein, and the other by Mr. Quintin and Mr. Leis, also figure largely in the evidence. It was apparent as the evidence developed that Mrs. Stein by herself was not a match for the other and more astute faction. Mrs. Stein seems to have been a quiet, domestic, and well behaved, but rather slow-minded, person. Certain it is that she had long ministered to the wants of the testatrix with a fidelity and care which gave her great claims on a childless old woman, without a single relative for whom testatrix cared or could care. If there was a natural object of the bounty of testatrix, it was, perhaps, Mrs. Stein. Had not one Mrs. Noll appeared on the testamentary scene, Mrs. Stein's conduct would doubtless have continued irreproachable.

It is established that, in prior testamentary papers made by testatrix, Mr. Quintin and Mr. Leis, or their families, figure as legatees, together with Mrs. Stein. By an earlier will Mr. Quintin and Mr. Leis were made the executors of Mrs. Hermann. We have this disposition of property as a datum only in this proceeding, for the validity or invalidity of the earlier testaments is not before me, and cannot be now considered. If the will now presented for probate is established, the earlier dispositions made by testatrix will, however, be revoked.

[7] The nature of earlier testamentary provisions is regarded as relevant upon an issue of undue influence; for if they are consistent with provisions of the later will they may tend to rebut the charge of undue influence, while if inconsistent and unexplained they may tend to confirm it. Ridden v. Thrall, 125 N. Y. 572, 576, 577, 26 N. E. 627, 11 L. R. A. 684, 21 Am. St. Rep. 758; Matter of Nelson, 141 N. Y. at page 157, 36 N. E. 3. The dispositions in favor of Mr. Leis and Mr. Quintin tend to show that at one time testatrix regarded them as proper objects of her bounty. The contestants contend that a sudden change of this fixed testamentary intention on the part of Mrs. Hermann was occasioned by the undue influence of Mr. and Mrs. Stein and one Mrs. Noll, co-operating or acting severally, and that the change requires more explanation in this cause than the proponents gave in evidence. While Mrs. Stein benefits by the earlier testamentary provision, she benefits more largely by the contested will. If the earlier will proves a fixed testamentary intention, it proves that Mrs. Stein, as well as Mr. Quintin and Mr. Leis, had for some long period been in the mind of testatrix as proper objects of her bounty. The earlier will affords also a locus standi to Mr. Leis to contest the will now before me for probate. Beyond this, the earlier will throws little light upon the contention now to be decided. Horn v. Pullman, 72 N. Y. 269.

For some period prior to the execution of the paper now propounded, it was apparent that Mrs. Hermann's end was approaching, and I think the evidence discloses that the resources of the factions indicated were put to a strain. The testamentary dispositions of testatrix were evidently matters of supreme interest to these factions.

[8] Before taking up the somewhat desultory evidence in detail, we may recall that upon an allegation of undue influence the declarations of those charged with its exercise become competent in varying degrees, according to the circumstances of a particular case. Rollwagen v. Rollwagen, 63 N. Y. at page 519. On this issue the way of life of testatrix and her relations with the persons said to have influenced her are competent evidence. Coit v. Patchen, 77 N. Y. 533; Boyse v. Rossborough, 6 Ho. L. Cas. 42, 58; Rollwagen v. Rollwagen, 63 N. Y. at page 519. In Rollwagen v. Rollwagen it is stated without reservation or qualification that "the acts and declarations of such persons wielding the influence" may be shown on this issue. No distinction is drawn between declarations prior to the act of will or subsequent thereto. No distinction is made between declarations part of a competent res gestæ, or naked declarations. Why should there be, as a party is judged out of his mouth? I have always been guided by this express statement, although, if left to myself, I would have, perhaps,