Estate of Casey

Citations

• 2 Coffey 68

Syllabus

<p>Testamentary Capacity—Undue Influence.—While the law will not presume the exertion of undue influence from the mere fact of opportunity or a motive for its exercise, nor permit it to be found upon suspicion, yet proof must generally be gathered from the circumstances of the case, for very seldom is a direct act of influence patent, as a person intending to control another’s action, especially as to a will, is not apt to proclaim that intent; and among the circumstances from which proof must generally be gathered of undue influence exercised upon a testator are: Whether he had formerly intended a different testamentary disposition; whether he was surrounded by those having an object to accomplish to the exclusion of others; whether he was of such weak mind as to be subject to influence; whether the alleged will is such a one as would probably be urged upon him by those surrounding him; whether the persons who surrounded him were benefited by the alleged will to the exclusion of formerly intended beneficiaries.</p> <p>Acknowledgment of Will—Failure of Memory of Witnesses.—The failure of the attesting witnesses to the will involved in the present case, they being the nurse and physician attending the alleged testatrix at the time of the execution of the instrument, to recollect whether she acknowledged the paper as her will, is adversely commented on by the court, especially in“view of the fact that the instrument purports to have been executed at a recent date and in the presence of impending death.</p> <p>Testamentary Capacity—Clinical Chart of Nurse as Evidence.—A clinical chart kept by a nurse; showing, by entry made therein by her, that she administered a powerful opiate to her patient a short time before the patient is alleged to have executed a will, is, in conjunction with the testimony of the nurse as what must have been the stupefying effect of the drug, strong evidence of the condition of the mind of the testatrix at the time of the alleged testamentary a