Cudney v. . Cudney

Rapallo, J. We have examined with care, the evidence in this case, and find no sufficient ground for reversing the judgment of the Supreme Court. Due proof was made of the execution of the will, and although it appears, that for some years before his death the testator had been in feeble health, and there were occasions during his ilMess when his mind was affected, yet we think the evidence shows that at the time of the execution of the will in question he was possessed of sufficient mental capacity to make a will. The allegation of undue influence is not, in our judgment, sustained by the evidence. The testator’s leaving his own house and going to five with" his son James does not appear to have been the result of any solicitation on the part of James, but does appear to have’been the voluntary and spontaneous act of the testator. The dissatisfaction expressed by him in respect to his treatment when at home, whether founded on just cause or not, does not appear to have been excited by any misrepresentations made by James, nor by any influence exerted by him. The widow, herself, testified that she and the testator did not live pleasantly together, and it is quite *152 apparent from his conduct and declarations, that he was desirous of changing his residence. The subject of his testamentary dispositions appears to have occupied his attention to a considerable degree, for he made four wills during a period of six years. In three, if not all of these wills, he devised to his son James, the farm on which the latter resided, called the Budd farm, which was the most valuable part of the testator’s estate. The last will, made after he had resided about a year and a-half with his son James, was more favorable to him than the preceding ones, and less so to his children by his second marriage, but there is no evidence of any suggestion or importunity on the part of James on the subject of any of these wills, except the testimony as to declarations of the testator, made before he went to reside with James. Such declarations, alone, are not competent evidence to prove acts of others amounting to undue influence, although when the acts are proven,'the declarations of the testator may be given in evidence to show the operation they had upon his mind. Furthermore, the declarations of the testator had reference to previous wills and not to the one now in question. To invalidate a will on the ground of undue influence, there must be affirmative evidence of the facts from which such influence is to be inferred. It is not sufficient to show that a party benefited by a will had the motive and opportunity to exert such influence; there must be evidence that he did exert it, and so control the actions of the testator, either by importunities which he could not resist or by deception, fraud or other improper means, that the instrument is not really the will of the testator. The will now in question was drawn by the same lawyer whom the testator had employed to draw all Ms previous wills, and in pursuance of instructions given by the testator in the absence of James, and we find no sufficient evidence to sustam the allegation that it was the result of undue influence. It is not for us to judge of the justice of the provisions of the will, or of the reasons which the testator had for discriminating as he did in favor of James. The character *153 of the provisions of a will may be considered in connection with other evidence in trying the question of undue influence, but is not in itself evidence of such influence. However partial or unjust a testator may seem to have been in his testamentary dispositions, if the instrument propounded is actually his will, effect must be given to it. The judgment should be affirmed with costs, payable out of the estate. All concur; Miller, J., absent. Judgment affirmed.