Vanderburgh, J.
Timothy Hess, late of Winona county, died testate, in December, 1889, leaving, him surviving, five children, James Hess, Mrs. Ella Dearborn, Mrs. Mary Foster, Mrs. Emma Eyan, and Cornelius Hess. He was upwards of 70 years old. His will was executed September 24, 1888. In this will James Hess and Mrs. Ella Dearborn were named executors, and legacies of $50 each, only, were left to Mrs. Foster, Mrs. Eyan, and Cornelius Hess, a legacy of $500 to George Ford, a son of Mrs. Dearborn, and all the rest and residue of the estate of the deceased was given and devised to the executors, James Hess and Mrs. Dearborn, share and share alike. The estimated value of the estate was about $5,000. The validity of this will is contested by Mrs. Foster and Mrs. Eyan and Cornelius Hess, who alleged that the same was procured to be executed through the fraud of James Hess and Mrs. Dearborn, and constraint and undue influence by them executed and exercised over the mind of the testator at the time of the execution thereof. On appeal from the order and judgment'of the probate court, the issue of fraud and undue influence was tried by jury in the district court of Winona county, and a verdict thereon rendered in favor of the contestants.
One of the principal assignments of error is that the findings and verdict of the jury are not justified by the evidence. It is contended by the proponents that there was no evidence of fraud or undue influence in the case warranting the submission of the question to the jury. It is not necessary, in considering this assignment of error, to review the evidence in extenso, or to make special reference to the testimony of the several witnesses. It will be sufficient to refer to such parts of it as may be necessary to show the basis of our' conclusions upon this question. What is and is not undue influence has been considered and declared in our former decisions, and we need do little more than refer to them here. In re Storer's Will, 28 Minn. 11, (8 N. W. Rep. 827;) Nelson's Will, 39 Minn. 205-208, (39 N W. Rep. 143;) Mitchell v. Mitchell, 43 Minn. 73, (44 N. W. Rep. 885.) It is said in Re Storer's Will: “From the nature of the case, the ev[511]*511idenee of undue influence will be mainly circumstantial. It is not usually exercised openly, in the presence of others, so that it can be directly proved. But the circumstances relied on to show it must be such as, taken altogether, point unmistakably to the fact that the mind of the testator was subjected to that of some other person, so that the will is that of the latter, and not of the former.” But the burden of proof rests upon the contestants to establish the existence of fraud or undue influence; and that, we are obliged to hold, after a very careful and thorough consideration of the evidence in this case, they failed to do.
Evidence was received on the trial of the declarations of the testator subsequent to the execution of the will, for the purpose of showing the extent and effect of the undue influence claimed to have been exercised over him when the will was made; but the court correctly charged the jury that if the evidence, independent and exclusive of the testator’s declarations, did not satisfy them that undue influence was used in procuring the making of the will, they must answer the question of undue influence in the negative. And this must, of course, be so; otherwise the fact would be permitted to be proved by such declarations, though not part of the res gestee. The evidence of undue influence must be other than that which proceeds from the testator’s own mouth after a will is made. And in this case the evidence fails to show, apart from such declarations, that there had been either such pressing solicitations or fraudulent practices on the part of the proponents as to amount to moral coercion of the testator, not only affecting his judgment, but overriding his free agency, also. Indeed, with the exception of the testimony of the witnesses to the will of what transpired at the time it was drawn and executed, there is no evidence of any importance on the main issue. It is not enough that there be motive and opportunity, as the evidence undoubtedly tends to show there were in this case, but the influence must be exercised and take effect so as to destroy the free agency of the testator, and control the disposition of the property under the will when it is made. Unless the influence of these beneficiaries was unfairly and unlawfully executed, so as to dominate his will at the time, it is not material that they were interested in the will, or had [512]*512better opportunities for solicitation or persuasion than the contestants. Nor is it surprising that a testator should favor those who are nearest to him in respect and affection, or by reason of intimate social or domestic relations. The influences growing out of such causes must be allowed to have their natural and legitimate effect upon the mind of the testator, so that, if he chooses to make unwise and apparently unjust discrimination among those who are the natural objects of his bounty, he is at liberty to do so; for, when he comes to make his will, he is entitled to distribute his property as he pleases, provided, only, that, in the exercise of this right, his mind is under no such constraint or moral coercion as to interfere with his free agency. Mitchell v. Mitchell, 43 Minn. 73, (44 N. W. Rep. 885.) The principal actors in this contest are Mrs. Dearborn and Mrs. Foster, who is the chief contestant. The record shows, we think, quite clearly, that the testator was previously dissatisfied with the conduct and social relations of Mrs. Eyan and Mrs. Foster. And though he had not forgotten that Mrs. Foster, had, years before, rendered him valuable service in his household after the decease of his wife, yet he was displeased at her marriage, and feared and believed that any property which she might receive would be squandered. And we gather from the record sufficient evidence, we think, to warrant the belief that there were grounds for such dissatisfaction on the part of the testator.
As respects the specific charge of fraud growing out of the alleged representations of Mrs. Dearborn, we dismiss it by saying that it is not sustained by the evidence; nor does the record present a much stronger case of undue influence. The testator had made it his home with his son James, on the farm of the latter, in Winona county, for several years before his death. Mrs. Dearborn lived in Chicago. A few days before the will was executed Mrs. Dearborn came on a visit to her father, and remained till after its execution, when her father went with her to Chicago, but afterwards returned to Minnesota, and, before his death, visited Mrs. Foster in Wisconsin. As respects James, the evidence shows that he brought his father and sister to.the magistrate when the will was made. His father also left with him the key to his box in a safety vault, [513]*513where the testator had deposited it before he went to Chicago. A witness also testifies that Mrs. Dearborn said, in presence of the magistrate and her father, that James did not want the contestants to be allowed any more than a nominal sum each, in the will; “just enough to prevent breaking the will. ” There is no other evidence connecting him with the will. But Mrs. Dearborn was present when the will was made, and talked with other persons present, including the testator, about Its provisions. The testator was of sound mind, and unquestionably competent to make a will, and- a man of resolute and determined purpose. Searl (who drew the will) and his wife were the principal witnesses in the case.
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Vanderburgh, J.
Timothy Hess, late of Winona county, died testate, in December, 1889, leaving, him surviving, five children, James Hess, Mrs. Ella Dearborn, Mrs. Mary Foster, Mrs. Emma Eyan, and Cornelius Hess. He was upwards of 70 years old. His will was executed September 24, 1888. In this will James Hess and Mrs. Ella Dearborn were named executors, and legacies of $50 each, only, were left to Mrs. Foster, Mrs. Eyan, and Cornelius Hess, a legacy of $500 to George Ford, a son of Mrs. Dearborn, and all the rest and residue of the estate of the deceased was given and devised to the executors, James Hess and Mrs. Dearborn, share and share alike. The estimated value of the estate was about $5,000. The validity of this will is contested by Mrs. Foster and Mrs. Eyan and Cornelius Hess, who alleged that the same was procured to be executed through the fraud of James Hess and Mrs. Dearborn, and constraint and undue influence by them executed and exercised over the mind of the testator at the time of the execution thereof. On appeal from the order and judgment'of the probate court, the issue of fraud and undue influence was tried by jury in the district court of Winona county, and a verdict thereon rendered in favor of the contestants.
One of the principal assignments of error is that the findings and verdict of the jury are not justified by the evidence. It is contended by the proponents that there was no evidence of fraud or undue influence in the case warranting the submission of the question to the jury. It is not necessary, in considering this assignment of error, to review the evidence in extenso, or to make special reference to the testimony of the several witnesses. It will be sufficient to refer to such parts of it as may be necessary to show the basis of our' conclusions upon this question. What is and is not undue influence has been considered and declared in our former decisions, and we need do little more than refer to them here. In re Storer's Will, 28 Minn. 11, (8 N. W. Rep. 827;) Nelson's Will, 39 Minn. 205-208, (39 N W. Rep. 143;) Mitchell v. Mitchell, 43 Minn. 73, (44 N. W. Rep. 885.) It is said in Re Storer's Will: “From the nature of the case, the ev[511]*511idenee of undue influence will be mainly circumstantial. It is not usually exercised openly, in the presence of others, so that it can be directly proved. But the circumstances relied on to show it must be such as, taken altogether, point unmistakably to the fact that the mind of the testator was subjected to that of some other person, so that the will is that of the latter, and not of the former.” But the burden of proof rests upon the contestants to establish the existence of fraud or undue influence; and that, we are obliged to hold, after a very careful and thorough consideration of the evidence in this case, they failed to do.
Evidence was received on the trial of the declarations of the testator subsequent to the execution of the will, for the purpose of showing the extent and effect of the undue influence claimed to have been exercised over him when the will was made; but the court correctly charged the jury that if the evidence, independent and exclusive of the testator’s declarations, did not satisfy them that undue influence was used in procuring the making of the will, they must answer the question of undue influence in the negative. And this must, of course, be so; otherwise the fact would be permitted to be proved by such declarations, though not part of the res gestee. The evidence of undue influence must be other than that which proceeds from the testator’s own mouth after a will is made. And in this case the evidence fails to show, apart from such declarations, that there had been either such pressing solicitations or fraudulent practices on the part of the proponents as to amount to moral coercion of the testator, not only affecting his judgment, but overriding his free agency, also. Indeed, with the exception of the testimony of the witnesses to the will of what transpired at the time it was drawn and executed, there is no evidence of any importance on the main issue. It is not enough that there be motive and opportunity, as the evidence undoubtedly tends to show there were in this case, but the influence must be exercised and take effect so as to destroy the free agency of the testator, and control the disposition of the property under the will when it is made. Unless the influence of these beneficiaries was unfairly and unlawfully executed, so as to dominate his will at the time, it is not material that they were interested in the will, or had [512]*512better opportunities for solicitation or persuasion than the contestants. Nor is it surprising that a testator should favor those who are nearest to him in respect and affection, or by reason of intimate social or domestic relations. The influences growing out of such causes must be allowed to have their natural and legitimate effect upon the mind of the testator, so that, if he chooses to make unwise and apparently unjust discrimination among those who are the natural objects of his bounty, he is at liberty to do so; for, when he comes to make his will, he is entitled to distribute his property as he pleases, provided, only, that, in the exercise of this right, his mind is under no such constraint or moral coercion as to interfere with his free agency. Mitchell v. Mitchell, 43 Minn. 73, (44 N. W. Rep. 885.) The principal actors in this contest are Mrs. Dearborn and Mrs. Foster, who is the chief contestant. The record shows, we think, quite clearly, that the testator was previously dissatisfied with the conduct and social relations of Mrs. Eyan and Mrs. Foster. And though he had not forgotten that Mrs. Foster, had, years before, rendered him valuable service in his household after the decease of his wife, yet he was displeased at her marriage, and feared and believed that any property which she might receive would be squandered. And we gather from the record sufficient evidence, we think, to warrant the belief that there were grounds for such dissatisfaction on the part of the testator.
As respects the specific charge of fraud growing out of the alleged representations of Mrs. Dearborn, we dismiss it by saying that it is not sustained by the evidence; nor does the record present a much stronger case of undue influence. The testator had made it his home with his son James, on the farm of the latter, in Winona county, for several years before his death. Mrs. Dearborn lived in Chicago. A few days before the will was executed Mrs. Dearborn came on a visit to her father, and remained till after its execution, when her father went with her to Chicago, but afterwards returned to Minnesota, and, before his death, visited Mrs. Foster in Wisconsin. As respects James, the evidence shows that he brought his father and sister to.the magistrate when the will was made. His father also left with him the key to his box in a safety vault, [513]*513where the testator had deposited it before he went to Chicago. A witness also testifies that Mrs. Dearborn said, in presence of the magistrate and her father, that James did not want the contestants to be allowed any more than a nominal sum each, in the will; “just enough to prevent breaking the will. ” There is no other evidence connecting him with the will. But Mrs. Dearborn was present when the will was made, and talked with other persons present, including the testator, about Its provisions. The testator was of sound mind, and unquestionably competent to make a will, and- a man of resolute and determined purpose. Searl (who drew the will) and his wife were the principal witnesses in the case. Searl swears that Mrs. Dearborn said, when they came in, that her father had come to have a will made, and she came to tell him how they wanted it made, or how their father wanted it made. Then he says the testator said he “wanted to make his will, and told him how he wanted it made.” Searl was greatly surprised at the inequality of the bequests in the will, and so expressed himself. This led to more or less conversation, particularly in respect to further provision for Mrs. Foster. It seems that the testator was not very communicative, but said, in substance, in reference to Mrs. Foster, that he would like to give her more, but her husband would squander it. The witness stated that the testator was not satisfied, and was uneasy and restless; but it distinctly appears that after all the suggestions were made, and notwithstanding all that was said, he firmly adhered to his purpose to make his will as he had at first indicated. The witness Searl states, on his cross-examination: “Mrs. Dearborn did not dictate the will to me. I drew the will as he dictated it. Question. And- drew it just as he told you, I suppose? Answer. Yes, sir. Q. Now, then, you state that Mr. Hess appeared to be thoughtful, very silent, peculiar in his manner, do you? A. I did not see anything peculiar about him at that time. I may have expressed it in that way. I don’t remember. Q. Do you now state, that when you were talking over the will, he was decided in making it as he dictated it? A. Yes, sir; he was decided. Q. That the will should be as he dictated? A. Yes, sir; he did not want it changed, as he had arranged it in his mind.” [514]*514So that it is quite apparent that the testator was not influenced to change the nature of the bequests or the frame of the will by anything that occurred at the office of the magistrate where it was drawn and executed. It was already “arranged in his mind.” And there is nothing to show either that in forming his purpose, or in adhering to it, he was unduly influenced, or that the instrument was not his will, as he understood and declared it to be. The witness further states that, “after it was completed, he said it might not amount to anything.” He knew that he could alter it after-wards if. he desired to do so, and he was advised by some of the witnesses to do so, but did not. He visited his daughter, Mrs. Foster, during the summer before he died, and it appears that she understood that he had made his will, and knew that she was not favored, and she endeavored afterwards to induce him to change it, but could not prevail on him to do so.
The more closely the case is examined,-in the light of all the testimony, the more clearly it appears that there is no sufficient proof of facts from which undue influence can be inferred. The testator was a man of strongly marked characteristics, of sound mind and determined will, abundantly able to protect himself, — a matter not to be overlooked in considering a case of this kind; and, as long as the law permits a disposition of property by will different from that which the statute makes in case of intestacy, the mere fact that the testator makes an unequal, partial, or seemingly unjust division of his property is no ground for setting it aside. The provisions of the will may be considered, in connection with other evidence, in trying the question of undue influence, but is not itself evidence of such influence; and the court cannot assume to judge of the justice of the provisions of the will, or to question the motives of the testator in making it. Cudney v. Cudney, 68 N. Y. 152; Nelson’s Will, 39 Minn. 205, (39 N. W. Rep. 143;) Latham v. Udell, 38 Mich. 238.
Order reversed.
(Opinion published 51 N. W. Rep. 614.)