party, yielded to by a sane testator, is not undue influence. But influence may become undue when it is subtly exercised by one bearing a relation of trust to the testator. Where, for instance, a lawyer, a trustee, a confidential agent, or a guardian, or any other person occupying a fiduciary relation to a testator, availing of an advantage naturally incident to such relationship, succeeds in inducing a testator to make a provision in his favor, the transaction will be rigidly scrutinized. Weakness of mind, not amounting to actual incapacity, is also sometimes an important element. Influence exercized upon a sane testator who is old and weak, but lacks the will power to resist a stronger will than his own, may be undue, although it would not be a valid ground of objection if attempted upon a mind having greater power of resistance. But age and mental and physical weakness alone do not incapacitate a person from making a will. Even the natural failure of the memory due to age, is not necessarily a disqualification.

The courts have dealt with the subject of testamentary capacity in an intensely practical way. They have attached primary importance to the capacity of a testator to manage his own affairs." They consider his education, his environment, and his character, and they compare him when he made his will with his normal self.10 They are inclined to dismiss abnormal eccentricities," failure of memory, 12 perversities of temper, 13

9 Horn v. Pullman, supra; Pettit v. Pettit (1912) 149 App. Div. 485, 490-491, 134 N. Y. Supp. 133, 137; Matter of Heaton (1918) 224 N. Y. 22, 28, 120 N. E. 83, 85; Ivison v. Ivison (1903) 80 App. Div. 599, 602, 80 N. Y. Supp. 1011, 1013; Matter of Murphy (1899) 41 App. Div. 153, 50 N. Y. Supp. 450; Chandler v. Fisher (1919) 290 II. 440, 446, 125 N. E. 324, 326.

10 Mudway v. Croft (1843, Prerog. Ct. Canterbury) 2 Thorn. Notes, 438, 443. 11 Ivison v. Ivison, supra.

12 Van Guysling v. Van Kuren (1866) 35 N. Y. 70: Matter of Heaton, supra note 9; Matter of Barney (1919) 185 App. Div. 782, 174 N. Y. Supp. 242; Clapp v. Fullerton (1866) 34 N. Y. 190; Pilling v. Pilling (1865, N. Y. Sup. Ct.) 45 Barb. 86; Pettit v. Pettit, supra note 9.

13 Matter of Murphy, supra note 9.

and even actual delusions," if affirmative evidence points to capacity. But if such abnormalities have a causative relation to the act of testamentation, or if there is some clearly unjust discrimination, especially if it is connected with a mental deficiency such as a fixed and unalterable delusion concerning a relative of the testator having a claim to his bounty, it may outweigh positive evidence of capacity.

Unusual and unconventional testamentary provisions are dangerous experiments especially if there is a background of eccentricity or perversity of character; for they invite contests and may make expedient a settlement defeating the manifest design of the will. Testators will be well-advised if they refrain from giving vent to their feelings by expressing bitterness or prejudice or even views contrary to the ordinary current of men's thoughts. The danger from this source has been enhanced since the issue of competency has been submitted to juries.

I wonder how the will of Lewis Morris, a Yale man, dated November 19, 1760, would have fared with a New York jury. He expressed the desire that his son Gouverneur should have the best education to be had in England or America, but expressly directed that he

"be never sent for that purpose to the colony of Connecticut, lest he should imbibe in his youth that low craft and cunning so incident to the people of that country, which is so interwoven in its constitution that all their art cannot disguise it from the world, tho many of them, under the sanctified garb of religion, have endeavored to impose themselves on the world for honest men."

14 Van Guysling v. Van Kuren, supra; Clapp v. Fullerton, supra; Matter of Will of White (1890) 121 N. Y. 406, 24 N. E. 935; Dobie v. Armstrong, supra note 7; Coit v. Patchen (1879) 77 N. Y. 533; Burke v. Burke (1920, N. Y.) 193 App. Div. 801; Middleditch v. Williams (1889, Prerog. Ct.) 45 N. J. Eq. 726, 733, 17 Atl. 826, 829, reversed on other grounds in (1890) 47 N. J. Eq. 585, 21 Atl. 290.

Probably the will of his descendant, Gouverneur Morris, dated October 6, 1816, would not have excited less wonderment. He confirmed an ante-nuptial agreement giving his wife an annuity and provided that in case she should remarry she was to receive a further annuity of $600 "to defray the increased expenditure which may attend that connection." Even satire or thinly veiled bitterness is not without its dangers, as in the case of the French lawyer who left a large amount to a lunatic asylum, declaring that many of his clients who paid him should have been inmates; or the case of an old bachelor who left all his property to old ladies who had refused his offers of marriage, stating that he had made the gift because "to them I owe all my earthly happiness." And defiance by a testator, such as that of a testator mentioned in Griffith Gaunt, who left "his solemn curse to any knave, who hereafter shall at any time pretend that he does not understand the meaning of this, my last will and testament," will not prevent a contest or influence the court.

A will ought to be an instrument for serious expression of testamentary intention, and not the vehicle for the exploitation of irrelevant and peculiar views, however honestly held. Otherwise the testator creates evidence which may tend to defeat his own purposes.

The courts do not strain for probate. While the burden rests upon the proponent to prove testamentary capacity, yet very slight evidence from the subscribing witnesses will put a contestant to his proof, after which the proponent proceeds in rebuttal, or, practically speaking, in defense. It is almost a fiction to say that the burden rests upon the proponent, or rather it is an illustration of the nuance,-the subtle, metaphysical shading

given by the courts to the expression "burden of proof," which is the despair of the ordinary juryman, if, indeed he attempts to grasp it at all. To all intents and purposes, upon the question of testamentary capacity, the contestant has the laboring oar, even though nominally the burden of proof does not rest upon him.

The decision in Delafield v. Parish15 has done much to cause litigation, particularly since the question of testamentary capacity has been tried before juries. Judge Davies, in a very lengthy opinion in that case, said:

"We have held that it is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relations to the persons who were, or should, or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business. to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them." (p. 29).

If these words were given their strictly literal meaning they would constitute a wholly impracticable test. To "comprehend perfectly" would require a testator to know every detail of his possessions, and the richer he was, the greater would be the danger that he would fall below the standard of competency. Few millionaires could stand the test. For how could they master the fluctuating state of their diversified investments or the puzzling complications, legal and otherwise, of their business affairs? The courts, particularly the appellate courts, in practice have ignored the words of Judge

15 (1862) 25 N. Y. 9.

Davies and have measured the comprehension of a testator by the varying mental capacity of the experienced and the inexperienced, the stupid and the clear-headed, the careless and the meticulous, the bold and the cautious, the conscientious and the indifferent.

What a perfect comprehension by a testator of "his relations to the persons who were or should or might have been the objects of his bounty," may be, is difficult to define, but, practically, the courts have interpreted this language of Judge Davies not in its literal sense, but as connoting the relations to persons who would, by reason of kinship or similar relationship, be regarded ordinarily as proper persons for the benefactions of a testator.

Again Judge Davies says that a person must have

"sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other and be able to form some rational judgment in relation to them."

If we were to interpret these words according to their literal meaning, it would be impossible for a forgetful old man to make a will where he had depended for information upon memoranda, or had had his memory stimulated by persons in charge of his property.

With respect, I submit to trial judges, that it would be better to avoid quoting the generalizations of Judge Davies, to the inevitable confusion of juries, and to base their charges on the later decisions which have practically ignored them as a guide. In only one case that I have discovered have the appellate courts had the boldness to give a hint to this effect. That was in Matter of Bar