Dean v. Negley

The opinion of the court was delivered,

by Lowrie, C. J.

The will of a man who has testamentary capacity cannot be avoided merely because it is unaccountably contrary to the common sense of the country. His will, if not contrary to law, stands for the law of descent of Ms property, whether his reasons for it be good or bad, if indeed they be his own, uninduced by unlawful influence from others. Lawful influence, such as that arising from legitimate family and social relations, must be allowed to produce its natural results, even in influencing last wills. However great the influence thus generated may be, it has no taint of unlawfulness in it; and there can be no presumption of its actual unlaAvful exercise merely from the facts that it is known to have existed, and that it has manifestly operated on the testator’s mind as a reason for his testamentary dispositions. Such influences are naturally very unequal, and naturally productive of inequalities in testamentary dispositions; and as they are also lawful in general, and the law cannot criticise and measure them so as to attribute to them their proper effect, no will can be condemned because the existence of such an influence is proved, and because the will contains in itself proof of its effect. It is only when such influence is unduly exerted over the very act of devising, so as to prevent the will from being truly the act of the testator, that the law condemns it as a vicious element of the testamentary act; so the law always speaks of the natural, influence arising out of legitimate relations. But we should do violence to the morality of the law, and therefore to the law itself, if we should apply this rule to unlawful, as well as to lawful relations; for we should thereby make them both equal in this regard at least, which is contrary to their very nature. If -the law always suspects, and inexorably condemns undue influence, and presumes it from the nature of the transaction, in the legitimate relations of attorney, guardian, and trustee, where such persons seem to go beyond their legitimate functions, and work for their own advantage, how much more ought it to deal sternly with unlawful relations, where they are, in their nature, relations of influence over the kind of act that is under investigation. In their legitimate operation, those positions of influence are respected; but where apparently used to obtain selfish advantages, they are regarded with deep suspicion; and it would be strange if unlawful relations should be more favourably regarded.

And the voice of the law on this general subject is distinct and emphatic, transmitted through many generations, and embodied in many Latin maxims, of which the following are some:— Nemo eommodum capit de injuria sua. Nemo ex proprio dolo consequitur actionem. Frustra legis auxilium petit, qui in legem committ.it. Pacta quee contra bonos mores sunt nullam vim habent. Mx dolo malo, ex malijicio, ex turpi causa, ex pacto illicito, non oritur actio. Fx injuria non oritur jus. Pacta quee turpem causam continent, non sunt observanda. In odium spoliatoris, omnia pressumuntur. All which may be summed up in one sentence: No one shall derive any profit through the law by the influence of an unlawful act or relation.

The ordinary influence of a lawful relation must be lawful, even where it affects testamentary dispositions; for this is its natural tendency. The natural and ordinary influence of an unlawful relation must be unlawful, in so far as it affects testamentary dispositions favourably to the unlawful relation and unfavourably to the lawful heirs. Ordinary influence may be inferred in both cases, where the nature of the will seems to imply it; but in the former it is right, because the relation is, lawful; and in the latter it may be condemned, together vrith its effects, because the relation is unlawful.

It is not inconsistent with this, that it has been decided that the devise of a wife to her second husband was not affected by the fact that she knew she had a husband living at the time of her second marriage, even though the second husband heard of it before her death; for this shows no conscious transgression of law by him in his marriage with her, and her heirs could not set up her fraud on him as a reason for avoiding her will: 8 Harris 329.

There can be no doubt that a long-continued relation of adulterous intercourse, is a relation of great mutual influence of each over the mind and person and property of the other. History abounds with proofs of it, and it requires no very long life, or very close observation of persons around us, in order to reveal the fact. Our Divorce Law of 1815 shows its abhorrence of the crime, and its influence, by forbidding any one divorced for adultery from marrying his or her partieeps eriminis while the injured consort is living, and by disabling a woman thus divorced from devising or conveying her property, if she cohabit with her paramour. And the canon law, though it allowed children born before marriage, to be legitimated by a subsequent marriage, refused this privilege to children born of adulterous intercourse, and did not allow even a devise in their favour from the guilty parent.

If, then, there was such a relation between the testator and Mrs. Bolton, at the time of the making of the will, as was offered to be proved, we think that that fact, taken in connection with the devise to Mrs. Bolton’s daughters, is evidence of an undue influence exerted by her over the testator, and affecting the dispositions of his will, and that it may justify a verdict against the validity of the will. I have, myself, thought that it raised a presumption of law of undue influence, but we do not so decide, but leave it as a question of fact merely. We are, therefore, of the opinion that the evidence offered ought to have been admitted.

Judgment reversed, and a new trial awarded.