Herster v. Herster , 122 Pa. 239 ( 1889 )

Opinion,

Mr. Justice Clark :

This issue devisavit vel non was framed in the Court of Common Pleas of Northampton county to test the validity of the last will and testament of Andrew Herster, deceased, and of the several codicils thereto. The will was made and executed June 13, 1874; the first codicil August 29, 1878, and the second May 7,1880. Andrew Herster died May 27,1882, at the age of eighty-four years, possessed of an estate estimated at $200,000, leaving to survive him six children, viz.: Daniel Herster, Jacob Herster, Susan Keiper, Eliza Reich, Andrew J. Herster and William Henry Herster. Of these Andrew J. Herster is the principal devisee and proponent of the will, and William Henry Herster and Eliza Reich are the contestants. The only matter in issue, under the pleadings, is whether or not the will and the codicils, or any of them, were procured by fraud or undue influence ; the contestants, who were plaintiffs below, maintaining the affirmative and the proponents the negative of that issue. That Andrew Herster was, at the time of making the will and codicils, of sound and disposing mind and memory, is therein assumed; no question can be made as to this; the only proper matter for consideration being whether that mind and memory were, in these testamentary acts or in any of them, led captive by the artifice and undue influence of Andrew J. Herster, or of any other person in his interest, so that the written papers do not express the testator’s true purpose in the disposition of his estate.

Undue influence is very nearly allied to fraud, yet they are not identical; whilst undue influence comprehends fraud, fraud does not embrace every species of undue influence: Redf. on Wills, 500 n. It is only necessary, therefore, to consider the case upon the more comprehensive question of undue influence, for this will embrace all sorts of artifice, imposition, or bad faith which characterize acts of fraud. Undue influence exists wherever through weakness, ignorance, dependence or implicit reliance of one on the good faith of another, the latter obtains an ascendency which prevents the former from exercising an unbiased judgment. To affect a will, it must, in a measure at least, destroy free agency, and operate on the mind of the testator at the time of making the will. The rule is well and forcibly stated by our brother Goedoít in Tawney v. Long, 76 Pa. 115, as follows: “Undue influence, of that kind which will affect the provisions of a testament, must be such as subjugates the mind of the testator to the will of the person operating upon it; and, in order to establish this, proof must be made of some fraud practiced, some threats or misrepresentations made, some undue flattery, or some physical or moral coercion employed, so as to destroy free agency in the testator; and these influences must be proved . to have ■operated as a present constraint at the very time of making the will.” It may, in the language of the learned judge of the court below, be exercised by means of misrepresentation and falsehood, directed against the persons who would be the natural objects of the testator’s bounty, if the misrepresentation and falsehood so poisoned the mind of the testator as to destroy his free agency.

It is a matter of common knowledge, that a person of feeble intellect is much more easily influenced by undue means, than is one of a vigorous mind; therefore, in passing upon a question of undue influence, the strength and condition of the mind may become a proper, indeed an essential, subject of inquiry; for, although weakness, whether arising from age, infirmity or ■other cause, may not be sufficient to create testamentary incapacity, it may nevertheless form favorable conditions for the exercise of undue influence.

It is contended on part of the contestants, that although Andrew Hester must bo presumed to have had testamentary capacity at the time of the making of this will and the codicils thereto, and that cannot be questioned in this issue, yet both his mind and body had in fact been greatly impaired by the infirmity of age and by disease; that he was seventy-six years of age when he made his will, eighty when he made the first codicil, and eighty-two when he made the second codicil, and that he was aged eighty-four years when he died; that for twenty-five years he had suffered from a progressive general paresis, or softening of the brain; that he had an apoplectic seizure a short time before the execution of the will, and that his memory was much impaired and his mind generally enfeebled; in other words, that although the testator’s mind was not enfeebled to the extent of testamentary incapacity, yet it was so weakened by disease and old age as to make the testator an easy prey to the artifice of his son, and that Jackson took advantage of his father’s weak condition to procure the will to be made in his favor. The proponents of the will, on the other hand, contend that the testator was of a strong, robust and resolute mind; that, although advanced in years and afflicted to some extent with the disease stated, he conducted business, successfully and extensively, throughout the whole period of his affliction and until within two weeks of his decease; that he was engaged extensively and profitably in the purchase and sale of cattle; that he kept his own accounts, made his own calculations, and drew his own checks in payment, until the month in which he died; that within a year prior to his death he paid to three of the witnesses alone, for cattle, over $26,000, and within four months and one half before his death, had paid out with his own checks, to different persons, for cattle, over $11,000; that it was the result obtained in his various business transactions after the making of his will, which made further testamentary provision necessary; that Jackson, his son, had been a good boy, had remained at home with his parent, and had rendered him valuable and important services; that the old man had a high opinion of his son’s business capacity, and, on that account, often deferred to his judgment in business matters, and that the provisions in his will and the codicils in his favor, were a free and voluntary act of his father, prompted, perhaps by his affectionate regard for his son, and a consideration of his personal services and worth, It will be seen therefore, that undue influence is the substantial fact affirmed on one side, and denied on the other; imbecility or weakness of mind being a collateral or extraneous question arising out of the proofs.

The declarations of the testator, made within a reasonable time before and after the execution of the will, have always been received in evidence upon a question of testamentary capacity, to show the state and condition of the testator’s mind, and, if reasonably connected in point of time with the testamentary act, we cannot see any reason why they would not be admissible to establish the same fact in an issue raised upon the exercise of fraud and undue influence in the procurement of it. Such declarations cannot have any force, however, in establishing the substantive fact of undue influence. “ It is certain such testimony is not admissible for the purpose of proving any distinct fact depending upon the force of the admission, since the testator is not a party to the question of the validity or interpretation of Ms will: ” Comstock v. Hadlyme, 8 Conn. 254; Redf. on Wills, 589. “The object of this testimony is to show such a state of weakness or vacillation of mind, as rendered the testator an easy victim either of artifice, force or fraud. Such declarations afford most satisfactory evidence, not only of the strength of mind, but often exhibit those peculiar phases of the mind, and of the affections, wMeh especially expose the testator to be overcome by the terror of threats or the seductions of flattery. And although these declarations will necessarily afford some ground for judging in regard to the effect of any attempts at undue influence, that element in the testimony not being legitimate, it can only be eliminated by the judge in summing up to the jury:” Ibid. 548. “ It is apparent that the declarations of the testator that he did not execute his will freely, that he never intended to have made such a will, and never should, but for the influence of those persons in whose favor it is made, and similar declarations, which are very common in the testimony elicited in testamentary causes, can be of no force whatever as testimony tending to establish the truth of the declarations. In that light, such declarations are mere hearsay, depending for their force upon our confidence in the veracity of the person making them, and in most cases easily explained, without regard to the question of their truth, and have always been rejected as evidence: Ibid. 530.

Testamentary capacity "being the normal condition of a person of full age, it follows that, in the absence of evidence of undue influence, proof of the testator’s declarations should be excluded or wholly disregarded on that question. Therefore, in Moritz v. Brough, 16 S. & R. 403, it was held, that to set aside a will, duly executed by a man of competent understanding, evidence is not admissible of declarations made by him, that he intended differently and was importuned by his wife; or, of the wife’s high temper and importunities with the testator, in relation to his will. So, in Hoshauer v. Hoshauer, 26 Pa. 404, the testator’s mental capacity was not disputed; the will was made in 1853; to show undue influence, the contestants offered to prove that in 1855, the testator said he had “made a will;” that he bad “made it as John wanted it;” that he had “ to make it as J olm wanted it,” and that he “ knew it was wrong.” Tho offer was rejected and upon error it was held that it was rightly rejected. Mr. Justice Lowbie, delivering the opinion of the court, said: “ This could not prove fraud in procuring it, though nearly all the estate was given to John’s children, himself getting a dollar. An instrument, that for two years remained subject to change or cancellation at tho maker’s pleasure, cannot be set aside on such a declaration. A man who is competent to make a will can so easily correct any of its provisions, however obtained, that it is hard to imagine any kind of declarations of his that would prove it to be fraudulent, when any considerable time has intervened between its execution and his death.” So also, in McTaggart v. Thompson, 14 Pa. 149, where the validity of a will was questioned both for want of testamentary capacity and for exercise of undue influence, the contestants offered to prove the testator’s declarations, made after tho execution of the will, to the effect that in the making of it he had been imposed upon by those in whose favor it was made. The offer was refused, and upon that ground the case was removed to this court. “The court appears,” said Mr. Justice Rogers, “to have excluded the testimony, because they chose, contrary to the offer, to suppose it was designed to prove duress, for which, purpose it would be clearly inadmissible. But the court had no right to act on the supposition that the testimony was proposed in bad faith. As it was offered for a legitimate purpose, for that purpose it ought to have been received. If attempted to be used for a different purpose, the correction was in their own hands; the counsel would subject themselves to the severest censure. If the facts were as represented it was evidence of imbecility of intellect amounting almost to fatuity.” To the same effect is the current of authorities in other states:Robinson v. Hutchinson, 26 Vt. 88; Richardson v. Richardson,. 35 Vt. 238; Shailer v. Bumpstead, 99 Mass. 112; Kinne v. Kinne, 9 Conn. 102; Provis v. Reed, 5 Bing. 435; Jackson v. Kniffen, 2 Johns. 31; Pemberton’s Will, 4 Atl. R. 770; Waterman v. Whitney, 11 N. Y. 152; Stevens v. Vancleve, 4 Wash. C. C. 265. In order that the declarations of the testator may considered at all, upon an issue of undue influence, there must be proof of other facts and circumstances indicating circumvention or fraud in the procurement of the will: Tawney v. Long, supra; for they are received, not as proof of the fact, but merely to show that there' are special grounds for apprehending and unusual opportunities for exercising undue influence, and to illustrate the effect of such influence after its existence has been established; unless, perhaps, as part of the res gestae, when they are made at the very time of the execution of the will, and form part and parcel of the transaction: Smith v. Fenner, 1 Gall. 172; Boylan v. Meeker, 4 Dutch. 274; Harrison’s Appeal, 100 Pa. 458.

The weakness of mind and consequent susceptibility to influence which is admissible in such a case, must be shown to exist at the very time of the testamentary act; whilst the testator’s declarations directly show only the state of his mind .when they were made. Declarations made before and after have some significance, however, in showing, inferentially, the mental condition at the time of the testamentary act. The limitations, which govern the admission of this quality of evidence, must depend largely on the character of the unsoundness attempted to be proved. There are types of mental unsoundness which appear suddenly and may be of short duration, and in such cases, the proof, to be' of any avail, must come near to the precise time when the act was performed; but the decadence of old age and many forms of mental derangement and imbecility are of slow advancement, and proof of their distinct development, at any given period, will afford pretty clear ground to infer their existence for a long period, either before or after, with a considerable degree of certainty: Grant v. Thompson, 4 Conn. 203. Therefore, declarations made several years, even, before the execution of a will, be proven to show unsoundness or imbecility of mind of a per-\ manent character; and declarations made after may, in like manner, tend to show such a fixed perversion or imbecility of mind, as would not be likely to have occurred in any short period of time; and both or either may afford some just ground of opinion in regard to the state of the testator’s mind at the date of the testamentary act: Redf. on Wills, 549. The court must judge, in each particular case, how far it will bo profitable to extend the rule before and after the precise date in question: Grant v. Thompson, supra.

As the proof of the testator’s declarations are only admissible in this case to show the state of his mind, and the effect of undue influence, if any is shown to have existed, we cannot say, in view of the particular type of mental unsoundness alleged, and the peculiar circumstances of this case, that the scope of the investigation was too wide. Of course the objective point of inquiry, in every case, is the state of mind at the precise date of the testamentary act, but, as it is not practicable, in all cases to make that inquiry in a direct manner, some latitude of proof must be allowed.

At the first trial of this case, the learned judge of the court below instructed the jury, in the most explicit and proper manner, that these declarations of the testator were not evidence at all, as to the fact of undue influence, because there was no evidence that they were true; “ for all that appears,” says the learned judge, “ they may have been the expression of a mere delusion on the part of the testator.” At tlm second trial, however, the court received the evidence and. submitted it to the jury, without any qualification whatever. Whether this omission was the result of a change of opinion. respecting the force of the evidence, or was a mere inadvertence, or whether the learned judge inferred from the opinion of this court delivered when this case was here before, that such declarations were deemed proper evidence of undue influence, we cannot say; of one thing we are certain, that the failure to qualify the effect of this evidence was fatal to the defendants’ case. There is, in the concluding clause of the opinion referred to, enough perhaps to give the impression, that the declarations of the testator made a few days prior to his death, as to his unsuccessful attempt to get possession of his will from Lynn, followed by his exclamation on the day of his death, “ Mein Gott in Himmel, es is alies letz, alios letz,” my God in heaven, all is wrong, all is wrong, were deemed proper evidence of undue influence.' But the law is too well settled on this point to admit of any doubt. The testimony was admissible, perhaps, but it was for the consideration of the jury only in a certain event, and then for a special purpose, to show the state and condition of the testator’s mind; and as the declarations were made eight years after the execution of the will, and four years and two years after the making of the codicils respectively, and then were uttered almost in the last moments of the testator’s life, they were, it must be conceded, of little force or inferential effect, under the circumstances, even as to that. We then said in advance we could not “say that the answers to the proposed questions would not indicate the exercise of undue influence,” etc. Now that the answers are before us, we can without any hesitation say that they are not. The defendants’ counsel, by a point more particularly directed to this branch of the evidence, might have directed the attention of the court to the proper application of this part of the evidence in a more direct manner than appears to have been done; but we think the question is raised in the answers to the defendants’ fifth and sixth points. Although these points were not directed to the precise question now under consideration, yet the answers of the court proceed plainly upon the assumption, that the testator’s declarations might be regarded as indicating undue influence, or present constraint, operating upon the mind of the testator in the testamentary act; and upon this ground the judgment must be reversed. .

In the former opinion of this court, it was held that the evidence was sufficient to justify a submission to the jury. The testimony was then and is now very voluminous, the evidence embracing over one thousand pages of printed matter; and, perhaps, we did not give it that exhaustive examination and patient study which we have since been able to do. The whole case is now before us, and we are constrained to say, that the testimony bearing upon the precise question at issue is certainly of the most meagre, unsatisfactory and inconclusive character.

It is said that Jackson Herster stood in a confidential relation to the testator; that he was the testator’s son, and was to some extent intrusted with his father’s business; but he was not present at the making of the will, nor does it appear that it was made by counsel at his procurement. The testator went to Mr. Lynn, who had been his attorney and counsellor for fourteen or fifteen years, and, in the absence of all his children, with the greatest deliberation arranged for the preparation of his will. That Jackson was a son was certainly in his favor; that he was intrusted with his father’s business and, in this respect, occupied a confidential relation towards him is also a circumstance in his favor, if he performed his duty faithfully and well, and did not take advantage of his position, or abuse the confidence reposed in him in the procurement of the will. There is not the slightest proof that he took any part in the actual preparation of the will or of any of the codicils; indeed, that he was even present when they were made and written or when they were signed. Under these circumstances the burden of proving undue influence is clearly upon those who allege it.

The unequal disposition which the testator made of his property, under the circumstances of this case, is not of great significance. “ There may be cases,” as was said in Patterson v. Patterson, 6 S. & R. 56, “where this internal evidence added to other proof, which would of itself leave the question doubtful, ought to turn the scale.” But the inequality in the provisions of this will, taken in connection with all the evidence referred to, is not such as would induce any reasonable belief, that, in the making of it, the testator was acting under any improper influence; and, especially is this so, in view of the evidence which has been introduced to explain the reasons, and disclose the motives, which probably actuated the testator in this disposition of his property. The very object of mating a will is to disturb the equality of distribution which the law establishes in the absence of one; and, whether the reasons for it, in the testator’s mind, are well or ill founded, is immaterial, if he has arrived at the result, of his own volition and without any fraud, coercion or constraint of others. It is only when the will is grossly unreasonable in its provisions, and plainly inconsistent with the testator’s duty to his family, that, in case of doubt, the inequality can have any effect on the question of undue influence. The evidence in this case is not, in our opinion, of such a character as to leave the question at issue in doubt. On the contrary, the uncontradicted proofs abundantly explain the testator’s motives in making his will as he did.

Apart from the internal evidence supposed to be afforded by the will itself, and the confidential relation referred to, and applying the declarations of the testator as evidence of the state and condition of his mind, the evidence of undue influence consists mainly of the testimony of five witnesses, viz.: Amandus Frey, Charles Halbing, Hannah Weaver, Samuel Weidnecht and Henry Weidnecht. The circumstance related by-Amandus Frey is of the most inconsequent character. In the year 1880 or 1881, he told the testator he had a lot on College Hill that Jacob would like to have; the price was $7,500; the old man promised to go up and see; failing to do so, Frey went to see him again. He says: “ I told him, ‘ Daddy, you did not come up to see my place.’ He said, ‘No, I did not;’ then he said something about having a fall and hurt his thumb or finger, I forget what it was, and he couldn’t get up, but that his son Jake told him that the property was cheap, and they might as well buy it, because they had the money lying idle; but he said ‘I’ll see Jack first; ’ and then he called Jack, and he told Jack about it and said, ‘ Here’s Frey about that lot on College Hill; Jake says it is cheap and we might as well buy it; ’ Jack said,' ‘ No father, we have got enough borough property; if we want to buy property, buy farms.’ Then the old gentleman said, ‘Well, if you say so, all right,’ and that ended the matter.”

Charles Halbing lived in the testator’s family from April, 1880, for nine months; he returned in the spring of 1881, and left some time previous to the old man’s death. His testimony relates chiefly to the conversation of the family whilst at their meals. In speaking of what Jack and his wife said at the table, in the old man’s presence, he says: “ They allowed that Jake’s children were running around and spending their money, and if he got such things he would not take care of them.”

Q. Was this said upon more than one occasion, or only once ? A. Frequently.

Q. What effect did it have apparently upon the old man; what would he say ? A. Well, he would generally side in with the family.

Q. Did you ever hear anything said about Henry or his wife or children? A. Yes, I did.

Q. What did he say about them? A. Well, no offence to the lady there or the family; I shall speak the remark as it was spoken at the place.

Q. Who said it? A. Jack Herster; “Beck, fat Beck.”

Q. What did he say about them besides ? A. Well, that the children were no good, running around and out on the streets nights, and Hen. Herster running around and the like of that.

Q. Did you hear Jack say anything about his sister Susan? A. Yes, Mrs. Keiper and her Rosa.

Q. What did he say about her ? A. That they were a stuck up set, and that if they got anything they would not take care of it.

Q. When they said this what did the old man say ? A. Well, the old man would side in with them; he would have the same opinion, apparently, to me.

Q. Did he say anything about Eliza, Mrs. Reich? A. Yes.

Q. I mean Jack; what did Jack say? A. As 1 understand, Mr. Reich stole a cow and drove her to Allentown or Catasauqua —I am not certain which of the two places — and sold his cow, and the old man, of course, had bitter feelings against Mr. Reich on that account, and I have often heard the remark made that they should not have anything.

Q. Heard Jack say it? A. Yes.

Q. Was anything said about Dan by Jack? A. Yes.

Q. What ? A. Said that Dan was a drunken man and did not take care of his business ; that he owed the old man so much money, for cattle as I understood, and that he had had enough for his share, and would not get any more ; and his Irish woman and the two boys, they wouldn’t get nothing.

Q. Dan’s wife was an Irish, woman, was she? A. As I understand it, yes.

Q. What effect did that have on the old man? A. Well, he would have the same opinion.

Q. Would he he in a good humor or angry ? A. He certainly would be out of humor when the rest spoke that way, and he would side in with them.

Q. Would he swear any? A. He never would curse any; often times in German he would use an oath, but I never heard Mm go to the extreme.

Q. What would he say in German? A. He would say, “ Sockerment ” and the like of that.

Hannah Weaver was employed as a servant in the family in the year 1877. She says: “ Rose Keiper — that was Susan Keiper’s daughter- — yes, she came there one day; I tMnk it was on Saturday, and she came there with some flower seeds, and she had a brown silk dress on, and the door was open between the kitchen and the old man’s room, and so I said: “Was that Miss Keiper,” after she was gone, and she said: “ Yes, that was Rose Keiper; but she would not need to put a silk dress on to come up here to me,” and then the old man said sometlflng, but I am not positive what he said, but he was very angry about it.

Q. Did Mrs. Herster say anything more to him about not holding out, or anything of that kind? A. Oh, yes, she said that wearing them silk dresses, she said that that would not hold out, and then the old man said: “ Yes, it wont if they have got to have it from me ; ” something in that way it was.

Q. Do you remember on different occasions anything being said to the old gentleman about the different children, by Mrs. Andrew Herster; do you remember anything being said there at breakfast about not being able to sleep at night? A. Yes; one morning the old man got up and was angry— that was the old man Herster.

Q. Who else was there then? A. I and Jackson and his wife and the boys at the table, and then they said they could not sleep at all last night.

Q. Who said that first ? A. Why-Jack.

Q. Then what did the old man say ? A. That he could not sleep neither, and then Jack said, “Yes, they were playing on the piano all last night.’-’

Q. Who ? A. Why Jack said that, that he could not sleep; that Henry’s children were playing on the piano all night, and then he said, “ Yes, he better—

Q. Who ? A. Why the old man said he better learn his girls to play on the piano; but when Clara comes round 1 will give it to her.

Q. What did Mrs. Jack Herster say? A. “Yes,” she said “ If I had girls you bet they would learn to milk.”

Q. What was the old gentleman’s manner? A. Well, he was cross, angry.

Q. Did you ever hear any piano playing over there ? A. No, I slept on the third story and I did not hear any.

Q. Did you ever hear any piano playing over there ? A. No; I heard a little music over there, but I don’t know what it was, whether it was an accordion or a mouth organ or whatever, but I never heard a piano.

Q. Do you remember anything being said about how the piano was brought there? A. Yes; the piano was brought in there and it was so large they couldn’t haidly get it in the house.

Q. Who said that? A. Mrs. Jackson Herster.

Q. When ? A. The same morning at the table; she said that they brought the piano and it was so large they could not get it in the door hardly, and it is about all that was said.

Q. Do you remember on any other occasion, when anything was said about Daniel ? A. I think it was something, but I cannot just remember how it was.

Q. Do you remember anything being said about his being drunk? A. Yes, it was said that he was a regular drunkard.

Q. Who was that by ? A. It fell at the table but T cannot telL whether it was Jackson or his wife, it was either one; they said it to the old man and I sat by and heard it.

Samuel Weidneclit testifies, that the old man in any business matter would generally have his own way with other people, but he generally agreed with Jackson.

Henry Weidneeht says, that the .old man seemed to be guided a great deal by Jackson, and was different in his manner toward Jackson from what he was to other people.

Reuben Kolb testifies, that he seemed to be a little afraid of Jackson, that is, more yielding; that he was usually a man of much, determination and was firm in his opinion with others, but that he yielded readily to Jackson.

This is a summary of all the testimony bearing directly upon the fact of fraud or undue influence, and consisting as it does of matters occurring some three years and some six years after the will was made, it is certainly of the most inconclusive character. There is, in our opinion, no evidence from which a jury would be justified in inferring fraud, duress or undue influence in the making of this will. In an issue devisavit vel non the question of mental unsoundness, or of undue influence, ought not to be submitted to the jury where the evidence is of such unsatisfactory character that the court would not sustain a verdict upon it: Wilson v. Mitchell, 101 Pa. 505. “ A court of law,” says our brother Paxson, in Cauffman v. Long, 82 Pa. 72, “has a higher duty to perform than merely to answer points of law. It is its duty to.see that the law is faithfully administered, and such administration requires that a man’s will, the most solemn instrument he can execute, shall not be set aside without any sufficient evidence to impeach it. There is no redress here for an erroneous or improper verdict. But where a case is submitted to a jury upon clearly insufficient evidence, such as no court ought to sustain a verdict upon, it is our plain duty to reverse : Sartwell v. Wilcox, 20 Pa. 117; Lower v. Clement, 25 Pa. 68; Silveus v. Porter, 74 Pa. 448.” “This court has indicated in a number of cases,” says our brother Green, in Herster v. Herster, 116 Pa. 612, “ a rule by which to determine the granting of an issue, and it is equally applicable in determining whether a cause of this kind ought to be withdrawn from the jury. It is thus expressed in a recent case: If the testimony is such that after a fair and impartial trial resulting in a verdict against the proponents of the alleged will, the trial judge, after a careful review of all the testimony would feel constrained to set aside the verdict, as contrary to the manifest weight of the evidence, it cannot be said that a dispute within the meaning of the act has arisen. On the other hand,, if the state of the evidence is such that the judge would not feel constrained to set aside the verdict, the dispute should be considered substantial and an issue to determine it should be directed. This simple and only safe test is supported alike by reason and authority: ’’ Knauss’ App., 114 Pa. 10.” Applying this rule, which would seem to be well settled, to the evidence in this cause, it must be conceded, we think, that it is wholly insufficient. Upon a careful review of all the testimony this verdict could not be sustained; the court should have set it aside as contrary to the manifest weight of the evidence. And if this is so it is, on an issue devisavit vel non, good ground for reversal here.

The facts exhibited in evidence in this ease to establish undue influence’ are, in general, of the most trivial character. The most grievous matters alleged are that Jackson said Eliza Reich’s husband stole a cow, and that Dan was a drinking man — facts, however, which do not seem to be seriously denied. It does appear that Henry never had a piano, and it is probable that the old man knew that he had not, as he was actively engaged about the house for five years after this alleged misrepresentation. Statements to the effect that Jacob’s children were “ running around spending their money; ” that Henry’s were “ out on the streets nights ” and that Mrs. Keiper’s were a “ stuck up set,” are criticisms that may have been well or ill founded, according to the stand point from which their conduct was observed and the peculiar notions and temper of the observers. At the best, however, they have little, if any force in establishing fraud or undue influence in the procurement of this will or of the codicils. And especially is this true in view of the fact, that the alleged declarations were not only made after the will was executed, but several years after. There is some evidence of mental' impairment, but the testimony is overwhelming that notwithstanding this impairment the testator retained a business capacity rarely found among persons of his age, who have never been afflicted as the testator was. There is no evidence whatever of any statements made by Jackson or his wife to the prejudice of his brothers and sisters at, or at any time before, the making of the will. In order to invalidate a will there must be evidence direct or circumstantial of a present operating restraint at the time of making it: Eckert v. Flowry, 43 Pa. 52; Wainwright’s App., 89 Pa. 220. Influences which do not appear to be connected with the testamentary act are not sufficient to impeach a will: McMahon v. Ryan, 20 Pa. 329.

If we are right in the views we have already expressed, it is wholly unnecessary to consider the several assignments of error in detail. The plaintiff has made no case for the consideration of a jury; and, as the whole case must go down, all questions incidentally arising during the progress of the trial go down with it.

The judgment is reversed.