
    Supreme Court of Pennsylvania.
    
      TAWNEY v. LONG et al.
    
    The undue influence which would be sufficient to destroy a will must be something more than mere importunate persuasions.
    Error to the Court of Common Pleas of Adams county.
   Opinion delivered October 12th, 1874, by

Gordon, J.

It is quite probable that in October, 1871, the mind of John Bowman was so unsound as to be incapable of properly disposing of his estate by will. At all events there was evidence thereof sufficient to submit to a jury. On this branch of the case the ruling of the court was strictly correct. Not so, however, on that which relates to the question of undue influence, as an operative cause affecting the old man in the disposition of his property.

The evidence offered for this purpose was wholly insufficient, and should have been rejected.

In treating of this branch of the case, we must treat of it as a distinct issue, for if it be found that the testator was of unsound mind then the question is determined against the will, and we proceed no further, but if on the other hand this question be determined in favor of the testator’s testamentary capacity, then and then only do we consider the proposition involving the subject of undue influence.

However then, the fact may be, and that fact is hereafter to be determined by a jury, we must, for the present purpose, treat, the case as though the testator’s sanity were proved. What then is there in the evidence to show that John E. Tawney improperly influenced John Bowman in the disposition of his property. That he treated the old man, who by marriage was his uncle, with kindness, that he permitted him to remain at his house, that he bailed him and assisted him when sued by his wife and son-in-law, indicates but ordinary acts of friendship, towards a frail' old man, rendered necessary from the very circumstances thrown around him by the defendants themselves, but in nothing does it exhibit that corrupt and unlawful influence which amounts to constraint, and which substitutes the will of another for that of the testator. So we have no • evidence, except that of Tawney himself, that Bowman ever spoke to him,’ or he to Bowman, about a will. We give in extenso what he says upon-that subject. “The day before we came to town, I had a conversation with the old man about making the will. He told me in front of his-room he had been thinking about making his will and fixing his things.' He did not know whether he could make a will or not, that if he got' like old Mr. Slagle, his property might not reach to keep him. I told him if I was in his place, I would take the good of what I had while I lived, and if there was anything left it was his own,.and he could do with it as he pleased.”

Again: “after that Bowman called me into the office and told me he had made up his mind to make a will. He always thought he might give Jake something. He told me the way he was fixed he did not know what to do about it, he asked me what he ought to do about it, 1 told him if he wanted to give Jake something, he could make it so that his debts and funeral expenses should be paid first, and then he could give Jake whatever he had a mind to ; if nothing was left, there would be no harm done.”

This testimony does not even raise the idea of solicitation, much less that of improper or fraudulent conduct upon the part of Tawney. It contains but the advice one prudent and cautious neighbor might give to another under like circumstances.

Then we have the declarations of the testator himself, as found in the testimony of Henry Long and wife; “that John E. Tawney was ding donging at him to make his will and leave all he had to him and his family. ' ’

But these declarations proved nothing but such solicitations as do not affect the validity of a will. Even importunate persuasion from which a delicate mind would shrink, will not invalidate a devise: Miller v. Miller 3 S. & R. 467. But beyond this, these declarations are too remote from the time of execution, and are not so connected with other facts and circumstances indicating circumvention or fraud in the procurement of the will as to make them part ofthe res gestae, and are therefore not evidence: 2 Greenl. Ev., Part 4, sec. 690; McTaggart v. Thompson, 2 Har. 249.

We cannot think, therefore, that all this evidence taken together, was sufficient to raise such a question of undue influence as should have been submitted to the Jury.

Undue influence of that kind which will affect the provisions of a testament must be such as subjugates the mind of the testator to the will of the person operating upon it, and in order to establish this, proof must be made of some fraud practiced, some threats or misrepresentations made, some undue flattery, or some physical or moral coercion employed, so as to destroy the free agency of the testator, and these influences must be proved to have operated as a present constraint, at the very time of making the will. But constraint is not to be inferred from mental weakness alone, though the weak mind may be more readily constrained and deceived than the strong one, and though it is to be considered as a fact in determining the question of constraint, nevertheless, as is said in McMahon v. Ryon, 8 Har. 329, that undue influence which suffices to destroy an alleged will is distinct from weakness and has no necessary connection with it.

So it has been held that general bad treatment furnishes no evidence of such influence, and we jnay add, neither does general kindness, though this may have a powerful influence upon a weak mind, unless it is shown to be part of a crafty arrangement to procure the testamentary disposition: Thompson v. Ryner, 15 P. F. Smith, 368; Rudy v. Ulrich, 19 P. F. S.; Eckert v. Flowry, 7 Wr. 46.

From the above statement, it is obvious that the case in hand is utterly barren of evidence tending to show undue influence as the cause which operated on the mind of John Bowman to produce the disposition of his property complained of by the defendants. It follows that the court erred in not answering the plaintiff's sixth point in the affirmative.

Judgment reversed and a ve?iire facias de novo awarded.  