
    McClure v. McClure.
    (Nashville.
    December 10th, 1887.)
    I. Wills. Undue influence. Wife. Mistress.
    
    A will favorable to the testator’s wife will not be so readily imputed to undue influence as one favorable to a mistress. The just and honorable influence that a wife, by her virtues and affections, acquires over her husband stands on a higher plane than that control which a mistress, by her charms and meretricious arts, exercises over her guilty lover. However disproportionate the bequest to the wife, it rarely raises any presumption of undue influence. - Suspicion usually attaches to a bequest to a mistress, especially if it be unnatural.
    Cases cited and approved: 4 Greenl., 220; 41 Penn. St., 312; 37 Ind.
    
      2. Same. Sapie. Case in judgment. ,
    Where a will, in which testator’s wife is the chief beneficiary, is contested on the ground of her undue influence in procuring it, and there is evidence introduced tending to show that the beneficiary was not in fact the testator’s wife, but had lived with him in adulterous and bigamous-intercourse, it is error for the Court to charge the jury, in effect, that it was immaterial whether the relation of the parties was lawful or unlawful.
    3. Same. Same. Illegal relation unknown to parties.
    
    If, however, the parties in good faith contracted and continued their relation of husband and wife, believing it lawful, no unfavorable inference should be drawn from its accidental illegality.
    4. Same. Reptiblication. Destruction of later will. Intention.
    
    The destruction by a testator of the later of two inconsistent wills, with the intention and purpose of making a third one, does not, without more, revive the earlier will, even if no new will is made and the earlier will is found among testator’s valuable papers.
    FROM DAVIDSON.
    Appeal in error from the Circuit Court of Davidson County. FRANK T. Eeid, J.
    W. G. Brien and Whitman & Gamble . for Executrix.
    East & Eogg and W. K. McAlister for Contestants.
   Lurton, J.

This is an action of devisavit vel non. Tbe will in contest is that of James A. McClure, deceased. Probate is resisted upon two grounds — undue influence, and revocation by execution of a later will. There were verdict and judgment in favor of the executrix. The contestants have assigned á number of errors as ground for a new trial. Of these we shall only consider such as we now deem material to be passed upon.

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, age, or situation is peculiarly susceptible to improper influences. The question, when reduced to its last analysis, is but an inquiry as to whether the will is the will of the testator or the will of another. Was his free agency controlled to such an extent by the stronger will of another that he has, by reason of such domination, made a will such as he would not have made otherwise ? Whatever influence was adequate to overcome the free agency of the testator is undue influence. The fact as to whether the influence operating upon the mind of a testator was adequate to overcome the free agency of the testator must depend much upon the strength of mind and will power of such testator and the attitude toward the testator occupied by the person supposed to have exercised such undue influence. For instance, the relations of physician, attorney, nurse, or clergyman afford such opportunities as to justify much stronger suspicions than might be inferred from other relations. So the naturalness or unreasonableness of a testamentary provision serves to throw light upon the inquiry, and is a proper subject for consideration. Bequests favorable to a wife, and even unduly so, might furnish no basis for suspicion of improper influence, when the same preference in favor of a mistress might be regarded as a strong circumstance. Said an eminent judge: “If a wife by her virtues has gained such-an ascendancy over her husband, so riveted his affections, that her good pleasure is a law to him, snob, an influence can never be a reason for impeaching a will made in her favor even to the exclusion of the residue of his family. Ror would it be safe to set aside a will on the ground of influence, importunity, or undue advantage taken of the testator by his wife, though ’ it should be proved she possessed a powerful influence over bis mind and conduct in the general concerns of life, unless there should also be proof that such influence was especially exerted to procure a will of such kind as to be peculiarly acceptable to her and to the prejudice and disappointment of others.” Small v. Small, 4 Greenl., 220.

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 'of unlawful lust was extravagant and unreasonable, and disappointing to the just expectation of relations more entitled to the bounty of the testator. It cannot be said, however, that any presumption of undue influence, as matter of law, would arise from the mere fact that the will was favorable to one occupying an illegal relation to the testator, but the fact should be submitted to the jury as a circumstauce to be considered by them along with the other facts of the case, and as shedding light upon the other evidence.

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.

One other question ought, perhaps, to be considered. There was proof of the execution of a later will expressly revoking all former wills. The jury were properly charged that if a later will had been duly executed revoking all other wills or containing provisions entirely inconsistent with those in this will, the effect would be to revoke this will. There was also proof tending to show the destruction of this later will by the testator, and proof that this will was found after the death of the testator among his valuable papers. Upon the question of the republication of this will by the destruction of the later will the jury were charged that “if this will was found after the testator’s death among his papers, and it is shown that he destroyed a will made subsequent to it, the legal presumption is that he destroyed it with the intention that this will should have force and effect as his last will.” There was, however, evidence tending to show that the purpose of the testator in destroying the later will was to make a third will; and to meet this state of the case the appellants asked the Court to charge “that the destruction of a subsequent will with the intention of writing another or third will, does not, ipso facto, revive the first will.” This was refused. Row, it is very clear that the destruction of a later will with the intent and purpose of substituting it with a third will would not have the effect of republishing the first or oldest will. It was error not to have charged this request, in view of tlie charge given as to the effect of the destruction of the later will. Indeed, the better opinion is that where a later will of two inconsistent wills is destroyed, or otherwise revoked by the testator, the effect of the destruction of the later will must depend upon the facts and circumstances of each particular case, to be judged of by the jury, under proper instructions in regard to and applicable to the special circumstances. 2 Green. Ev., See. 683; 1 Red. "Wills, 375.

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.  