
    *George Monroe et al. v. Francis Barclay et al.
    1. To invalidate a will for fraud or undue influence, it must appear that the fraud or influence complained of, had some effect “ upon the testator, in producing the very act of making his will.”
    '2. A will can not be impeached for undue influence, unless the influence under which it is made, imposes some “restraint” upon the testator in the disposition of his property, in accordance with his own independent wishes and judgment.
    3. A will produced by influences springing from an unlawful relation between the testator and legatee, is not for that reason void, unless such influences were exerted in restraint of the will of the testator.
    4. Where/ on the contest of a will, the court was requested to charge the jury that if a man knowingly marries and cohabits with the wife of another, and by the influence of such marriage and cohabitation procures a will from her in his favor, the will is void for illegal influence: Held that, unless the influence mentioned placed the testratrix under some restraint! it was not such illegal influence as would invalidate her will; and, as such restraint can not necessarily be implied from the facts assumed, it was not error to refuse to charge as requested; and whether such restraint existed was properly left to be determined by the jury, under the instruction that if it did, the will was void.
    Error to the district court of Mahoning county.
    On the 14th day of February, 1859, a petition was filed on behalf -of G-eoflge Monroe, Catharine Monroe, and Erastus Jacobs, against John McClelland and Francis Barclay, in the court of common pleas for Mahoning county, to set aside the last will of Mary Mc-Clelland, deceased.
    It is averred in the petition, that Mary Jacobs, otherwise called Mary McClelland, died, February 11, 1859, seized of lands descended from her father, and of other estate, personal and real; that Catherine Monroe, wife of Ceorge Monroe, was her sister; that Erastus Jacobs was her husband; that he and the said Catherine are the heirs of decedent’s estate; that she made a protended will, by which she gave all her estate, except five dollars to her ■sister, to John McClelland, who combined with the defendant, Barclay, and procured said will by fraud and undue influence upon the testatrix, who, they aver, also, was not, at tbe time, of sound mind and memory.
    The defendants answered, denying all fraud, undue influence, and want of capacity in the testatrix. They also aver that Erastus Jacobs died long before the petition was filed.
    The case was tried to a jury, who returned a verdict in favor *of the defendants, sustaining the will, and judgment was rendered in their favor accordingly.
    
      A bill of exceptions was taken by the plaintiffs, from which the following facts appear:
    The decedent married Erastus Jacobs, October 7, 1838. They had a child which died, in 1850, at the age of nine years. Jacobs and the decedent lived together till February, 1852, when he went to California, and has not returned.
    November 9, 1856, John McClelland and Mary Jacobs, the decedent, were married by defendant Barclay, a justice of the peace; and they lived together as husband and wife till her death.
    The plaintiffs gave evidence tending to show that McClelland married Mary for her property only; that he combined with others to induce her to make a will; that she was advised to marry him, and that she had a right so to do; that McClelland was about thirty-five years of age at the time of the marriage, and that Mary was over fifty-seven; that she was deformed, filthy, drunken, profane, and' lewd; and that they lived together most unhappily.
    The defendants gave evidence tending to establish her capacity to make a will, and to show that, before and ever since her marriage with McClelland, she expressed her determination not to give her property to the plaintiffs. They further gave evidence tending to rebut all fraud or undue influence upon the testatrix.
    Much more evidence was given by the parties tending to sustain the issues on their respective sides.
    The counsel for plaintiffs requested certain propositions to be given by the court in charge to the jury. These propositions, and the charge given, so far as is material, together with the exceptions taken by the plaintiffs, upon which the questions in the case arise, are sufficiently stated in the opinion delivered in the case.
    The plaintiffs filed their petition in error, in the district court, to reverse the judgment of the common pleas. That court affirmed the judgment of the common pleas; and this petition in error is prosecuted in this court to reverse these judgments.
    
      *Geo. M. Tuttle, for the plaintiffs in error:
    
      The plaintiffs in error, plaintiffs below, asked the court to charge the jury the following, among other propositions :
    “20. If a man knowingly and wrongfully marries and cohabits in a state of adultery with a woman who is the lawful wife of another man, and whose husband has not forfeited his claims to her comfort and society, and by the influence of such marriage and cohabitation, procures a will from her in his favor, and disinheriting her real husband, that will is void for illegal influence.”
    The court refused this proposition, and, in substance, charged that no such influence would be sufficient, unless it was not only exerted, but was so exerted as to have prevented the testator from the exercise of her own judgment and will, and to have taken away her free agency.
    The proposition in question- supposes, and the proof in the case tended to show, a procurement of the will by the influence in question. But there is no doubt that influence may be so exerted as to procure a will, and yet come short of that described by the court. And the proposition in question did not suppose the influence to have been exerted to the extent of taking away free agency. See 1 Redf. Law of Wills, 525, pl. 32, on the subject of undue influence.
    The influence which the adulterer, cohabiting in adultery, can exert over his paramour, does not stand equal before the law, with - that which subsists between the lawful and' dutiful husband and wife.
    An influence such as that supposed in the request to charge, is essentially unlawful to be exercised upon the testamentary act; and when, by it, the adulterer procures a will in his own favor, disinheriting the true husband, the will is void for unlawful influence.
    1. The law of wills, in the State of Ohio, is to be construed upon the principle that the power to make a will is conferred by law.
    The appointment of forms for making, executing, or perfecting contracts, does not avoid the contract which is not so executed or perfected. The appointment of forms for the execution of a will, avoids all wills that do not conform to *it. 1 Redf. Law of Wills, 1; Mayne on Ancient Law, 168, 172; Domat by Strahan, Part II., b. 3, pt. 1, sec. 1, art. 7, pl. 2993; 2 Pothier on Obl. 372.
    2. It is a necessary result from this character of the law of wills that the absolute power to make a will is limited by each subsisting rule of law to which its unlimited exercise may be opposed. The difference between the law of deeds and the law of wills illustrates this, and is illustrated by it. "Wills act, S. & C. 1618, sec. 21.
    3. In the State of Ohio, a last will possesses no disposing'power until it is established by a judicial order of probate; and in the contest of a will after probate, the question still is, whether the writing produced be the last will of the testator or not; and such contest being carried to a final determination, the will still has no operative force upon titles, unless it is then found a proper act to be judicially declared the last -will of the testator.
    4. Erom this it further follows, that the absolute right to an order establishing a will, and also the absolute power to make a will is limited by each subsisting rule of law respecting judicial proceedings which opposes a determination in favor of any given will.
    5. There are restrictions upon the testamentary power in respect of the influences under which wills are made, other than those expressed in the statute. No doubt that fraud practiced upon the testator is, in Ohio, a ground of invalidity in the will; and it can not be said that fraud is included in any ordinary meaning of the word “restraint;” or if it is said that the term “ restraint ” is used in a sense large enough to include fraud, that usage must be-derived from some definition other than is afforded by general use or by the statute.. But past legislation affords as much light on this subject as the present. Act of January 5, 1805, sec. 1-3; act of February 18,1808, secs. 8, 9 (Chase, 571) ; act.of February 2, 1821, sec. 1 (Chase, 1193); acts of February 11, 1824, and February 26, 1824 (Chase, 1305, 1308).
    6. The law of wills must be so construed as to promote the object of the law, and not to subvert it; and it must be so-^construed as not to abolish those general rules of the law which relate to the support of its own general policy — to the rules of morality and of public decency, and to the assistance of wrongdoers in perpetrating their intended wrongs. Burgett’s Lessee v. Burgett, 1 Ohio, 469, 480, 481; Moore v. Vance 1 Ohio, 10 ; Spicer v. Giselman, 15 Ohio, 338, 341; The State v. White, 17 Ohio, 32, 34; Goudy v. Gebhart, 1 Ohio St. 262.
    7. It is one great part of the testamentary law to enable testators to discharge the imperfect obligations which arise out of kindred. and family relations, and to satisfy reasonable expectations which they have contributed to raise; and it is against the object of the law to induce them to act from unreasonable passion. Clark v Fisher, 1 Paige, 171; Trumbull v. Gibbons, 2 N. J. 193; 1 Jarman on Wills, 28b, note; 1 Williams on Ex’rs, 41, note 9; Walker v. Walker, 14 Ohio St. 173.
    8. It follows, of course, that is it opposed to the law of wills to exercise an unlawful influence upon the testatrix in the testamentary act, which in its own nature is and must be hostile to the real obligations of the testatrix to family and blood, or to her recognition of them; and it must be equally opposed to that law to give effect to such an influence, or to give effect to a will which has been elicited by such an influence, in opposition to the real obligations of the testatrix. Domat, art. 2425 ; Small v. Small, 4 Greenl. 221, 224; 1 Redf. Law of Wills, 522, note 30 ; Swinburne, part 7, secs. 3, 4; Bacon’s Abr., tit. Wills, C; 1 Jarman on Wills, 29, notes; Dietrick v. Dietrick, 5 Serg. & Rawle, 207, 208; 2 Story’s Eq. Jurisp., sec. 187; Lindley’s Introduction, 129; Chase, 492, sec. 13; 1193, sec. 1.
    9. The influence which was described in the request to charge was an unlawful-influence, which, when exerted in the testamentary act, must, in its own nature, have been hostile to the real obligations of family and blood on the part of the testatrix, and to a recognition of them by her. Swinburne, pt. 7, sec. 1, 462 ; 1 Redf. Law of Wills, 513, note 12; 6 East, 389.
    10. This much for what is determined by the spirit and ^policy of the law of wills. But if my fourth and fifth propositions are correctly deduced, the general policy of our laws in regard to morality, to justice, and to the discouragement of their opposites, have also their place in the argument. Swinburne on Wills, pt. 4, secs. 6, 16, and Powell’s note; Taylor v. Mason, 9 Wheat. 326, 359; 1 Redf. Law of Wills, 511, sec. 4; Wood’s Institutes, Book 11, chap. 4, Testaments, pp. 175, 177; Domat, 2550; Wills act, sec. 72, S. & C. 1631.
    The doctrine of the proposition which the court were requested to charge the jury, and which I have maintained, receives the fullest support from a case lately decided by the Supreme Court of Pennsylvania. Dean v. Negley, 41 Penn. St. 312. See 1 Redf. Law of Wills, 531, pl. 45.
    Besides the foregoing proposition, and among others, the counsel for plaintiffs, asked the court to charge the following propositions,, each of which was refused:
    “ 16. If, previous to the will being made, John McClelland, or any person acting in concert with him, took advantage of imperfect, though not absolutely unsound judgment, on the part of the testatrix, and by advice known by them to be false, induced her to believe that she owed to Erastus Jacobs no duty as a wife, and -she made the will under the continued influence of that persuasion, the-will was void.
    “ 17. That, for this purpose, it makes no difference whether it relatesto matters of fact merely, or whether it related to matters of judgment only, provided it related to matters about which she, in her imperfect condition of judgment, might be, and actually was, misled by the advice.
    “ 18. If, at the time of making the will in question, Mary Jacobs, the testatrix, from false advice knowingly given by John McClelland, or by any other person acting with him, believed that Erastus Jacobs was not her lawful husband, when in fact he was, and that John McClelland was her lawful husband, when in fact he was not, the will is void.
    “ 19. It makes no difference whether the false advice thus-given was in relation to some matter of fact or in relation to some matter of law, concerning her relation to Jacobs and McClelland, provided she, being then possessed of impaired ^powers of judgment, believed the advice to be true, and acted accordingly.”
    A person may be deceived in regard to a matter of law, and such deception may be ground of relief in the same manner as deception in regard to matters of fact. Young v. Miller, 10 Ohio, 35, 90 ; McNaughten v. Partridge, 11 Ohio, 223, 232 ; Evants v. Strode’s Adm’r, 11 Ohio, 480, 486 ; and see 1 Story Eq. Jurisp., secs. 113-137. We have already shown that one of the questions which a testatrix about to make a will is called on to decide, and which she must have mind enough to decide, is, who are the persons to whom she owes the imperfect but real obligations, which it is one of the objects of the testamentary law to enable her to fulfill ? Her ability to judge of these obligations is one of the tests of the testamentary. capacity.
    Her judgment upon these points 'should be made just as freely as her judgment upon any other point, and any deception in regard, to these matters, if it be deception, and if it influence her, is just as material as deception upon any other.
    
      F. F. Hutchins, for defendants in error:
    Counsel for plaintiffs in error seem to except to the charge of the court, only so far as it treats the questions of fraud and undue influence as questions, of fact, and does not charge that certain assumed facts are, pet se, fraudulent and sufficient, of themselves, to invalidate a will, under any and all circumstances, if they exist as assumed, or that certain influence, if it exist, is, per se, illegal and undue influence, and sufficient to invalidate the will, under any and all circumstances.
    With reference to undue influence, generally, the charge of the court was more favorable to plaintiffs in error than the law. Redf. on Wills, 516, note 20; 518, 523, 524, 527, note 41; 530; 22 Wend. 526.
    Upon the question of fraud, also, the charge was quite as favorable to the plaintiffs in error as is the law.
    The charge is to be construed favorably to the support of the judgment. 9 Ohio St. 9.
    The gist of all four of propositions 16,17,18, and 19, which plaintiffs in error requested the court to give in charge to the *jury, is a fraud practiced upon the testatrix under the influence of which she made the will. All these propositions are fairly embraced in the charge given. And, if it were not so, those propositions are too general and broad in their terms. Redf. on Wills, 516, 524, 525, 527. Moreover, these propositions did not legitimately arise in the case.
    In. regard to proposition 20, which plaintiffs in error requested the court to charge:
    I suggest that the question of undue influence was a question of fact for the jury, and not to be assumed by the court from, certain facts.
    I deny that where a wife makes a will in favor of her husband the law presumes that it was made either on account of the influence arising ñ-om the relation, or because of that relation.
    I deny, also, that because, in a particular case, the marriage is illegal and a will is made as the result of the influence arising from such relation, that the influence is illegal in the sense in which influence is said to be undue and sufficient to set aside the will, even though both parties knew the illegal nature of the relation.
    
      The words “undue influence ” have reference solely to the time, manner, and extent of the exercise of the influence, and not to the manner in which it was acquired.
    
    And however acquired, it must be unduly exercised upon the testamentary act in order to avoid it.
    The facts assumed in proposition 20, if they-existed, were-eompetent .evidence tending to show undue influence (and this was all that was decided in 41 Penn. St. 312); but the court was not authorized to say to the jury that if they found these facts, then the will would be void, under any and all circumstances, no matter what other fhcts existed.
    
      John M. Stull, also for plaintiffs in error, in reply:
    Propositions 16,17,18, and 19, were not substantially given to the jury in the charge of the court. It is one thing that fraud in procuring a will avoids it; and it is entirely another thing whether that fraud exists in the case. The points made related to the duty of the court under the second of these *points. Whether any given facts, when established, constitute fraud, is a question of law for the court. Doe v. Manning, 9 East, 59, 64.
    These propositions were not too broad. 1 Eedf. on Wills, 514, sec. 9; Wills act, sec. 15. And they were made by the proof.
    In regard to proposition 20, requested to be given in charge:
    The facts and circumstances tended to show that McClelland made actual use of the opportunity and influence which he had, by reason of his relation to the decedent, to procure the will in question.
    The proposition requested to be given assumed no fact whatever as a presumption of law, or otherwise, that would tend to cause the will, or that would make the influence which caused it, unlawful. Every such fact adverted to in the proposition is put as a supposition, the existence of which would, if the proposition were given, be left by it to the jury as a question to be determined by them.
    The question of undue influence is a mixed question of law and fact; and, like all questions of such character, it is one of fact when the law is given, and one of law when the facts are given.
   Day, C. J.

The original case was a proceeding in the court of common pleas to contest the validity of the last will of Mary Mc-Clelland, deceased, upon three grounds: 1. That at the time of ex-ccuting the will she was not of sound mind and memory; 2. That she was fraudulently induced to make the will; 3. That the will was procured by undue influence of the defendants upon the testatrix.

The issues joined by the parties upon these grounds were tried to a jury, and a verdict was rendered in favor of the defendants, sustaining the will.

The testimony is not fully set forth in the bill of exceptions; it, is, therefore, to be presumed that the finding of the jury was, under the charge of the court, warranted by the evidence.

The only errors insisted on here arise upon exceptions taken by the plaintiffs to the refusal of the court to charge the jury as requested by them, and to the charge as given.

*The plaintiffs submitted to the court twenty-one propositions in writing, which they requested the court to give in its charge to the jury.

It is stated in the record that “the court refused to charge as requested, except as stated ” in the charge given to the jury; and that the plaintiffs excepted to the “refusal to charge as requested,, and to the charge, so far as the same is contrary to said request.”

The charge and the propositions submitted by the plaintiffs are fully set forth in the bill of exceptions, but no reference is made in the charge to any one of the propositions; so that it is not sj>ecified, in the record, which one of the propositions the court refused to give as requested. This is left to be discovered, by seeing what part of the plaintiffs’ requests were not embraced in the charge given. It will be seen, moreover, that the plaintiffs excepted to the charge so far only as the court omitted to adopt the written propositions submitted by them, and so far as the charge was contrary thereto.

It is not deemed necessary, for the purpose of presenting the-questions made by the exceptions, to recite here said propositions or the charge in full. Suffice it to say, that most of the propositions were substantially given in the charge to the jury, as requested. This does not seem to bo strenuously controverted by the counsel for the plaintiffs, except as to the propositions numbered from sixteen to twenty, inclusive. Indeed, the whole controversy arising out of the neglect of the court to charge as requested, and upon the charge as given, may be fairly presented by stating these five propositions, and the charge relating to them. The propositions, .are as follows:

“ 16. If, previous to the will being made, John McClelland, or’ any person acting in concert with him, took advantage of imperfect, though not absolutely unsound judgment, on the part of the testatrix, and, by advice known by them to be false, induced her to believe that she owed to Erastus Jacobs no duty as a wife, and she made the will under the continued influence of that persuasion, the will is void.
17. That, for this purpose, it makes no difference whether it relates to matters of fact merely, or whether it related to *matters of judgment only, provided it related to matters about which she, in her imperfect condition of judgment, might be, and actually was, misled by the advice.
“ 18. If, at the time of making the will in question, Mary Jacobs, the testatrix, from false advice knowingly' given by John Mc-Clelland, or by any other person acting with him, believed that Erastus Jacobs was not Iter lawful husband, when in fact he was, and that John McClelland was her lawful husband, when in fact he-was not, the will is void.
19. It makes no difference whether the false advice thus given was in relation to some matter of fact or in relation to some matter of law, concerning her relation to Jacobs and McClelland, provided she, being then possessed of impaired powers of judgment, believed the advice to be true, and acted accordingly. .
“ 20. If a man knowingly and wrongfully marries and cohabits in a state of adultery with a woman who is the lawful wife of another man, and whose husband has not forfeited his claims to her comfort and society, and, by the influence of such marriage and cohabitation, procures a will from her in his favor, and disinheriting her real husband, that will is void for illegal influence.”

It is to be observed, that these propositions make no allowance for any other facts or circumstances which might modify the assumed facts, but assert that the facts assumed would, under any circumstances, invalidate the will.

Under the 16th proposition, it is assumed that it would make no difference when, or for what purpose, the testatrix was induced to believe that she owed to Erastus Jacobs no duty — no matter if it was for a purpose having no reference to a disposition of her property ; still it is assumed that if the advice was ever given for any purpose, and the false belief continued, the will is void, although the advice had no effect whatever in producing the will.

Under the 17th proposition, it is claimed that the will would be void if the testatrix was misled by the false advice, without assuming that she was thereby induced to make the will, or that such advice had the least influence on the testamentary act. Indeed, these two propositions taken together, ^assume that, if the testatrix was, at any time and for any purpose, misled by the false advice of McClelland as to her duty to Jacobs, and remained under such false impression when the will was made, though it had no relation thereto and in no way tended to produce it, still, the will was void.

The same may be said, substantially, as to the 18th and 19th propositions. In the 19th, which is the most explicit, it is not assumed that, in acting upon the false advice, she did so in relation to the will.

It is undoubtedly well settled, that, to invalidate a will for fraud or undue influence, it must appear that tl*e fraud or undue influence had some effect “upon the testator, in producing the very act of making his will.” Redf. on Wills, 516, 524, 525, 527.

But, however this may be, the most that can be claimed of these four propositions is, that they are based on that kind of undue influence which amounted to fraud upon the testatrix. This is the gist of them; and upon a fair construction of the charge, so far as they tended to induce the will, they were substantially given to the jury. It is difficult, therefore, to see wherein the plaintiffs were not permitted to have all the benefit of these propositions to which they were entitled.

Upon this point, the court charged the jury: “ To inquire whether any fraud or misrepresentations were resorted to to induce the execution of this will. If such fraud was exercised, then it would, however slight, destroy the validity of the will; that is, if it was sufficient to and has, in your judgment, tended to induce the execution.”

Here the court, in reply to these four requests, told the jury, that if “ any fraud or misrepresentations were resorted to to induce the execution of the will, . . . however slight, . . . if it tended to induce the execution ” thereof, the will was void.

If these requests are construed as relating to the act of the testatrix in making the will, then the plaintiffs had the fall benefit of them in the charge. In that case, the record does not show affirmatively that they were refused.by the court, *or that they are embraced in the exceptions taken by the plaintiffs.

But the point that seems to be chiefly relied on by the plaintiffs, is made on the 20th proposition. Upon the facts there assumed,- it was claimed, as a presumption of law, that the will was produced by illegal and, therefore, undue influence. The court did not accede to this proposition, but left the question of undue influence to be determined by the jury, under the following instructions relating to this and other propositions:

“Inquire whether, through the exercise of force or by fear produced, or, in any manner, such an influence was exerted over her as to induce her to make a disposition of her property, contrary to her own will and inclinations; or whether such an undue and overruling influence was exercised upon her mind, as to control or overpower her own inclinations and judgment, or induce her, without or contrary to her own intention and will to execute the paper: if either of these propositions are found in the affirmative, it would defeat the will.”

Construing the charge strongest against the plaintiffs, it would seem that the court intended to be understood as holding the law to be, that, in the absence of fraud, no matter by what influence a testator may be exercised, so long as it does not overpower his inclinations and judgment, and induce a disposition of his property contrary to his own wishes and desires, his will can not be invalidated for undue influence. Indeed, it is not denied but that the charge, as applied to ordinary cases, may be sustained by both reason and authority; but it is claimed, that a distinction is to be taken between influences that are lawful and those that are unlawful.

The gist of the claim is, that the will was void because it was induced by influences growing out of an unlawful relation.

No matter for what reason the testatrix m.ay have been abandoned by her husband, or why she may desire to disinherit him and her kindred, or what obligations may have arisen from the unlawful relation; no matter if the will was made without any influence of the devisee, other than that *which sprung from their association; and, no matter if it was made in accordance with her own inclinations and judgment, still it is assumed that the will would be void.

If no other objection than this was urged against a gift of property between living parties, it would hardly be contended that it would be void. It is difficult to see why a bequest or devise should be subjected to a more stringent rule.

Every will, it may fairly be presumed, is prompted by influences strong enough to induce its provisions; and it would seem, therefore, that the most that ought to be claimed from such influences, in the contest of a will, is, to have them submitted to the jury, to enable them to determine whether the testator was misled or so influenced thereby as to affect his own free choice and judgment in the disposition of his property.

The power to make a will is granted, by the statute, to “ any person of full age and sound memory;” and, under its provisions, the will is to be admitted to record as valid, when “ duly attested and executed, and the testator, at the time of executing the same, was of full age and sound mind and memory, and not under any restraint.” S. & C. Stat. 1615, secs. 1, 15.

Restrictions are imposed upon none, but all are alike left to the exercise of their own free wills and inclinations in the disposition of their property. The power thus given to dispose of property does not depend upon the disposition made thereof, nor is it restricted to those who may employ it only for just and wise purposes; but all upon whom the right is conferred may use it without “any restraint.” Indeed, it is contemplated by the statute that this is the only way in which it can be exercised. Freedom from restraint is essential to the validity of a will. So careful is the law in this respect, that it will not uphold a will that has been induced by restraint upon the testator, whether in the form of fraud practiced upon him, or any other influence that destroys the free exercise of his own will. Redf. on Wills, 524, 527.

It would be inconsistent with the right conferred by the statute, and with the spirit of the construction it has hitherto received, to sanction restraints upon a testator, based alone *on the character of the motives or causes that may have induced any disposition of his property that he may make while in the free exercise of his own inclinations and judgment. He may give his property to whomsoever he pleases, and his motives or reasons therefor, so long as he is “not under any restraint,” are matters of his own conscience, for which he is not accountable to the law. His will; executed in conformitv to the statute, if it be his own, and not in any sense the will of another, can not be invalidated, however much its provisions may be disapproved by others.

It is claimed, in the proposition under consideration, that the will, upon the facts therein assumed, would be void for “illegal influence.” In the solution of the question made by this proposition, much of the difficulty disappears when we consider what “influence,” as applied to the invalidation of wills, is “illegal.”

Every will, as before remarked, is the result of influences strong enough to produce it. Since, then, it is the policy of the law to secure to every one the right to dispose of his property in accordance with his individual will, that influence alone is illegal which places the freedom of a testator’s will under some kind of restraint. If this be so, it follows that it matters not what may be the origin or character of any influence operating upon a testator, if it does not place him “under any restraint.” It would seem to follow, also, that it would be equally immaterial how an individual may have acquired an influence over a testator, unless such influence is exerted ina manner that tends to restrain the free exercise of his will in the disposition of his property.

It is claimed in this proposition, that the influence that produced the will was illegal only because it sprung from an unlawful relation. If this be so, then the principle would be equally applicable to any other unlawful relation, and would destroy a will made under influences springing therefrom, although the testator, without being placed under restraint, could not be persuaded to make a will otherwise than as prompted by such influences. However reprehensible such influences may be, if a testator voluntarily chooses to be actuated by them, it is a privilege he may enjoy under the Haw that secures to every one alike the right to dispose of his property without restraint upon his own judgment and conscience.

It is undoubtedly well settled that a will can not be invalidated because it was produced by influences springing from a lawful marital relation, unless such influence has been unduly exerted. The influence arising from an unlawful marital relation may be as strong as that of the other; but, unless it impairs, more than the other, the free exercise of the testator’s will, it is difficult to see how the influence arising from the unlawful relation is necessarily such undue influence as will invalidate a will, while that of the other' will not. It would seem,- upon the principles already stated, that the question would be essentially the same in either case— whether the influence had been, in fact, exerted in restraint of the testator’s will.

•However justly an adulterous- marital relation may be reprobated, it by no means follows that every will, produced by influences arising from that relation, is tainted with such turpitude that, to uphold it, would “ do violence to the morality of the law.” This is the theory upon which the claim of the plaintiffs rests. But the moral test will not in all cases avail. If the principle be correct, it makes no difference which party makes the will: whether the devise be from the woman to the man, or the man to the woman, it would be equally void.

It would be easy to suppose cases where considerations of moral obligation, as well as that of public duty, would require a man to make suitable provision for a woman with whom ho had sustained this relation. In such cases it would do no violence to the morality of the law to sustain such provision, though it be made by will, and induced solely by influences springing from the unlawful cohabitation.

It may, however, be admitted that the influences growing out of an unlawful marital relation do not stand, and should not be permitted to stand, upon an equal footing with those coming from the lawful relation; but the question recurs, whether the difference is in matter of law or of fact. Tf it *be the former, then every will induced by an unlawful relation is void, though the testator might not have been “ under any restaintbut this, it has been shown, is contrary to the general policy of the law. If it be the latter, then the proof of the unlawful relation should go, with the other evidence, to the jury to enable them to determine the question of undue influence.

We think this would be in accordance with the law, and, in general, best subserve the ends of justice. We have not been furnished with authorities, nor do we see any sufficient reason to warrant us in making this class of cases an exception to the general principles relating to the validity of wills.

It is true that the position of the counsel for the plaintiffs is strongly supported obiter in the able opinion delivered in the casa of Dean v. Negley, 41 Penn. St. 312. The point there ruled, however, went to the extent only that proof of the making a will under, and in the direction of, an unlawful relation, like that in this case, was such evidence of undue influence, that it may justify a verdict against the validity of the willand it was held, therefore, that it was error to exclude it from the jury. That the same court must hold the question to be one “ of fact merely,” and not “ a presumption of law,” is shown in a still more recent case, where it was declared that “ undue influence, to avoid a will, must be such as to overcome the free agency of the testator at the time the instrument was made.” Eckert v. Flowery, 43 Penn. St. 46; Redf. on Wills, 534.

The propositions which the counsel for the plaintiffs requested the court to give in its charge to the jury, although separately numbered, were, in fact, many of them, a connected series of propositions dependent one upon another, some of which, we have shown, the court could not properly give; other independent propositions were properly refused, as has been shown; and the remaining ones were embraced in the charge. There was, therefore, no error in refusing to charge as requested.

For the reasons already stated, we think that there was no error in the charge as given to the jury by the court of coiqmon *pleas. It follows that the district court rightfully affirmed the judgment of that court; and that the judgment of the district court must therefore be affirmed.

White," Welch, Brinkerhoee, and Scott, JJ., concurred.  