Sharpe, J.
Abner Jackson died on July 31, 1919, leaving a last will and testament, executed on December 12, 1918, by the terms of which he bequeathed to his grandson, Franklin Jackson, $50, to his daughter, Sarah Josephine White, $5,000, and the residue of his estate to his wife, Nellie Jackson. Mrs. White and Franklin’s father were children of a former wife, a sister of proponent, then living but divorced from testator. Notice of contest was filed by Mrs. White and the guardian of Franklin, who was a minor. The will was admitted to probate and an appeal taken to the circuit court. The reasons for the contest were the alleged mental incompetency of the testator and the claim that the will was executed owing to the undue influence exercised over the testator by his wife. At the conclusion of the proofs, proponent’s counsel moved for a directed verdict. The trial court withdrew the question of mental incompetency from the consideration of the jury and submitted to them the [567]*567question of undue influence. They found against the will. Proponent reviews the judgment entered by writ of error.
At the outset it may be stated that the deceased went alone to his lawyer’s office, instructed him as to the disposition he desired to make of his property, and returned later in the day and executed the will in the presence of the lawyer and the cashier of the bank at which he did business, who was called in at his request to act as a witness. The circumstances surrounding the making of the will are not such as to lead to any inference that undue influence had been exercised in procuring its execution. He took the will with him and it was found by his attorney among his papers after his burial. The proofs submitted by contestants were offered to support the claim of mental incompetency as well as undue influence.
There was considerable testimony tending to show that proponent was in the habit of drinking intoxicating liquor to excess, to the mortification of the deceased. During the greater part of their married life of more than 20 years, the deceased was the proprietor of a hotel at Capac, in which a bar was maintained. He drank himself, though it is claimed not to excess. Witnesses for contestants testified that he served liquor to proponent and guests in the living rooms of the hotel. This testimony is said to show the improbability that deceased would confer upon his wife “full possession and control” over the residue of his estate “when he knew that she was a person who constantly indulged in intoxicating liquors, became intoxicated and irresponsible.” There is no testimony tending to show that proponent was wasteful of money when drinking, went on sprees or trips, or otherwise squandered or was likely to squander testator’s money or her own in the use of intoxicating liquor.
[568]*568A former will was executed by the deceased in 1917. It appears that it was kept by him until 1919. It was not found among his papers after his death. Attorney Watson, who prepared it, as well as the second will, testified to its contents from his notes used in its preparation. At that time, a daughter, Yonda, a child of the second marriage, about three years of age, was living. It appears that both the testator and the proponent were deeply attached to her. In this will, he gave to the proponent his residence in Yale and his hotel in Capac, with reversion to Vonda in the event of her death or marriage. Five thousand dollars was bequeathed in trust to his son Frank, the father of Franklin, to be so held until he reached the age of 37 years. In case of Frank’s death, $1,000 was to go to his children and the balance to proponent and the children of testator. Mrs. White was to get $1,000. Vonda was to have $1,000 stock in the Yale Woolen Mills and she and proponent the use of his 120-acre farm. In the event of their death or the marriage of his wife, the farm was to go to his children. Frank was to get outright two city lots in Detroit of no great value. All moneys after payment of his debts were to be divided between proponent and Vonda. It is insisted by contestants that the change made in the disposition of his property to proponent’s benefit in the second will is a strong indication of undue influence exercised by her over him in its making. If we apply the rules of law applicable to testamentary disposition, we do not think any such inference can be fairly drawn therefrom.
Counsel lose sight of another fact strongly indicative of the reason why the second will was made and why the provision for proponent was so much increased therein. Both the deceased and proponent were greatly affected by the death of Vonda, which occurred in 1918. They made several efforts to adopt a child [569]*569to take her place. In March, lt'19, they entered into a written agreement with Mrs. Milburne, of London, Ontario, by the terms of which she turned over to them her female child about two months old. They agreed to adopt this child and to “maintain, board, lodge, clothe and educate” her “in a manner suitable to the station of the parties of the second part to the same extent and in the same manner as if the said child was their own lawful child.” The deceased grew very fond of the little babe and it is apparent that he was impressed by the obligation as to its care, etc., which he and proponent had assumed. No legal adoption papers were executed.
The obligation primarily resting on him at the time the will in question was made was to provide for the proponent, with whom he had lived for about 20 years, who, aside from the claims made as to her drinking habits and to alleged trouble with his daughter, Mrs. White, had been a prudent, faithful, hardworking wife and mother. This obligation, at least to the extent for which the law makes provision for her, could not be avoided. The legal obligation which both deceased and proponent had assumed in the agreement with Mrs. Milburne must also be provided for. As this obligation was joint, we think no inference of undue influence can be drawn from the provision made for its fulfillment. There is testimony that after this will was made he talked with Mr. Watson about reviving his first will and making the provision made therein for Vonda applicable to this child. He was advised as to how this could be done. The fact that he did not do so is strongly suggestive that upon further reflection he was satisfied with the will as made.
There is testimony tending to show that soon after the marriage of proponent and deceased she had trouble with his daughter, Mrs. White, and that the [570]*570latter was compelled to leave the home. This disagreement is, we 'think, magnified. It occurred a long time before either will was made. For several years before testator’s death, Mrs. White was frequently at his home and, as she says, “my relations with her were outwardly friendly.” The claim is made that the testator was in error as to the financial condition of Mr. and Mrs. White at the time he made the will in question. Counsel say that “the influence of Mrs. Jackson over him was so strong that she impressed him with the idea that the Whites were financially well fixed.” Counsel fail to point out anything in the record even tending to show that the matter was ever discussed between them, and we have found none. If we concede that he was mistaken in the respect claimed, it has no bearing whatever on the claim of undue influence.
The fact that but a small bequest was made to his grandson is commented on. No legal obligation rested on him to make any provision for this child.
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Sharpe, J.
Abner Jackson died on July 31, 1919, leaving a last will and testament, executed on December 12, 1918, by the terms of which he bequeathed to his grandson, Franklin Jackson, $50, to his daughter, Sarah Josephine White, $5,000, and the residue of his estate to his wife, Nellie Jackson. Mrs. White and Franklin’s father were children of a former wife, a sister of proponent, then living but divorced from testator. Notice of contest was filed by Mrs. White and the guardian of Franklin, who was a minor. The will was admitted to probate and an appeal taken to the circuit court. The reasons for the contest were the alleged mental incompetency of the testator and the claim that the will was executed owing to the undue influence exercised over the testator by his wife. At the conclusion of the proofs, proponent’s counsel moved for a directed verdict. The trial court withdrew the question of mental incompetency from the consideration of the jury and submitted to them the [567]*567question of undue influence. They found against the will. Proponent reviews the judgment entered by writ of error.
At the outset it may be stated that the deceased went alone to his lawyer’s office, instructed him as to the disposition he desired to make of his property, and returned later in the day and executed the will in the presence of the lawyer and the cashier of the bank at which he did business, who was called in at his request to act as a witness. The circumstances surrounding the making of the will are not such as to lead to any inference that undue influence had been exercised in procuring its execution. He took the will with him and it was found by his attorney among his papers after his burial. The proofs submitted by contestants were offered to support the claim of mental incompetency as well as undue influence.
There was considerable testimony tending to show that proponent was in the habit of drinking intoxicating liquor to excess, to the mortification of the deceased. During the greater part of their married life of more than 20 years, the deceased was the proprietor of a hotel at Capac, in which a bar was maintained. He drank himself, though it is claimed not to excess. Witnesses for contestants testified that he served liquor to proponent and guests in the living rooms of the hotel. This testimony is said to show the improbability that deceased would confer upon his wife “full possession and control” over the residue of his estate “when he knew that she was a person who constantly indulged in intoxicating liquors, became intoxicated and irresponsible.” There is no testimony tending to show that proponent was wasteful of money when drinking, went on sprees or trips, or otherwise squandered or was likely to squander testator’s money or her own in the use of intoxicating liquor.
[568]*568A former will was executed by the deceased in 1917. It appears that it was kept by him until 1919. It was not found among his papers after his death. Attorney Watson, who prepared it, as well as the second will, testified to its contents from his notes used in its preparation. At that time, a daughter, Yonda, a child of the second marriage, about three years of age, was living. It appears that both the testator and the proponent were deeply attached to her. In this will, he gave to the proponent his residence in Yale and his hotel in Capac, with reversion to Vonda in the event of her death or marriage. Five thousand dollars was bequeathed in trust to his son Frank, the father of Franklin, to be so held until he reached the age of 37 years. In case of Frank’s death, $1,000 was to go to his children and the balance to proponent and the children of testator. Mrs. White was to get $1,000. Vonda was to have $1,000 stock in the Yale Woolen Mills and she and proponent the use of his 120-acre farm. In the event of their death or the marriage of his wife, the farm was to go to his children. Frank was to get outright two city lots in Detroit of no great value. All moneys after payment of his debts were to be divided between proponent and Vonda. It is insisted by contestants that the change made in the disposition of his property to proponent’s benefit in the second will is a strong indication of undue influence exercised by her over him in its making. If we apply the rules of law applicable to testamentary disposition, we do not think any such inference can be fairly drawn therefrom.
Counsel lose sight of another fact strongly indicative of the reason why the second will was made and why the provision for proponent was so much increased therein. Both the deceased and proponent were greatly affected by the death of Vonda, which occurred in 1918. They made several efforts to adopt a child [569]*569to take her place. In March, lt'19, they entered into a written agreement with Mrs. Milburne, of London, Ontario, by the terms of which she turned over to them her female child about two months old. They agreed to adopt this child and to “maintain, board, lodge, clothe and educate” her “in a manner suitable to the station of the parties of the second part to the same extent and in the same manner as if the said child was their own lawful child.” The deceased grew very fond of the little babe and it is apparent that he was impressed by the obligation as to its care, etc., which he and proponent had assumed. No legal adoption papers were executed.
The obligation primarily resting on him at the time the will in question was made was to provide for the proponent, with whom he had lived for about 20 years, who, aside from the claims made as to her drinking habits and to alleged trouble with his daughter, Mrs. White, had been a prudent, faithful, hardworking wife and mother. This obligation, at least to the extent for which the law makes provision for her, could not be avoided. The legal obligation which both deceased and proponent had assumed in the agreement with Mrs. Milburne must also be provided for. As this obligation was joint, we think no inference of undue influence can be drawn from the provision made for its fulfillment. There is testimony that after this will was made he talked with Mr. Watson about reviving his first will and making the provision made therein for Vonda applicable to this child. He was advised as to how this could be done. The fact that he did not do so is strongly suggestive that upon further reflection he was satisfied with the will as made.
There is testimony tending to show that soon after the marriage of proponent and deceased she had trouble with his daughter, Mrs. White, and that the [570]*570latter was compelled to leave the home. This disagreement is, we 'think, magnified. It occurred a long time before either will was made. For several years before testator’s death, Mrs. White was frequently at his home and, as she says, “my relations with her were outwardly friendly.” The claim is made that the testator was in error as to the financial condition of Mr. and Mrs. White at the time he made the will in question. Counsel say that “the influence of Mrs. Jackson over him was so strong that she impressed him with the idea that the Whites were financially well fixed.” Counsel fail to point out anything in the record even tending to show that the matter was ever discussed between them, and we have found none. If we concede that he was mistaken in the respect claimed, it has no bearing whatever on the claim of undue influence.
The fact that but a small bequest was made to his grandson is commented on. No legal obligation rested on him to make any provision for this child. It appears that his mother had procured a divorce from Frank before his death and was awarded the custody of the child. While it appears that deceased was fond of the boy, it also appears that he discussed the bequest to him with his attorney at the time the will was prepared. We think no inference of undue influence can be drawn from the provision made.
It seems apparent to us that the facts stated did not justify the submission of this question to the jury. It is, however, claimed that there was direct evidence of undue influence which, when considered in connection with such facts, justified the action taken. This claim is based on the testimony of Ethel Jackson, the widow of testator’s son Frank. We quote it, so far as applicable, in full:
“It was between 2 and 3 years (weeks) after Frank’s death. My father, William Harrison, Mrs. [571]*571Abner Jackson and myself were present. This talk took place in the sitting room occupied by the Jacksons as their own living quarters, in the hotel at Capac. My father, Mrs. Jackson and myself had been over to Yale visiting my husband’s grave. My father was speaking about how that they had settled up things when my husband died, and I didn’t have very much trouble, that everything was fixed jointly that we had.
“Q. What did he say about it?
“Mr. Avery: Objected to as immaterial and irrelevant.
“The Court: I assume it is leading up to other matters that may be more material.
“A. He said if he had died before my mother died that things would have been fixed the same way for her and she wouldn’t have had no trouble and Mrs. Jackson spoke up and said she was trying to get Abner to fix things up and she was going to raise hell until he did so.”
This incident occurred about a month before the will in question was made. If the language of proponent be construed into an intention on her part to secure the execution of a joint deed of their property, as was intimated, she did not succeed. If from it we infer that she importuned her husband to make such a deed or to provide for her in a will in the manner in which provision was made, such action on her part would not in itself be evidence of undue influence. A wife has a right, she owes the duty to herself, to advise, to persuade, to entreat and to importune her husband to malee proper provision for her support and maintenance after his death either by deed or by will. There is no proof even remotely tending to show that she carried out her intention as expressed, but had she done so, under the rules of law applicable to conveyances or wills from husband to wife, her act would not, in itself, be sufficient to sustain the claim of contestants. It must further appear by proof or by fair inference to be drawn from facts established that [572]*572the influence exercised by her destroyed the free agency of the testator at the time the will was executed; that it expresses her mind and intent and not his. Mere suspicion is not sufficient. Beyer v. LeFevre, 186 U. S. 114 (22 Sup. Ct. 765).
It is apparent from a careful reading of this record that a great change occurred in the testator’s manner of life after the death of Vonda. This is given expression to by many of his neighbors and friends of long standing. More than a dozen were called as witnesses. All testified to facts from which it unquestionably appears that though weakened in body, due to a fall and an attack of influenza, his mind continued normal until shortly before his death. He was interested in the sale of Liberty bonds, the work of the Red Cross and other war time activities, and subscribed liberally therefor. Men with whom he did business testified to his keen perception and shrewdness in such matters and his careful management of his affairs. Rev. John McCue, the Methodist clergyman at Capac, visited him frequently after his attack of influenza. He was out riding with him. on several occasions. Testator and proponent talked with him about securing a child “to take the place of Vonda in the home.” After the child came, it was baptized by witness and deceased said to him “that it seemed to fill the aching void that was in the heart, it seemed to pacify his feelings.” That on one occasion the deceased said to him, “Elder, I have been thinking some of my spiritual welfare, or my soul’s welfare,” and that they conversed about such things.
The claim of counsel for contestants is thus summarized in the concluding paragraph of their brief:
“We have the direct evidence that she was doing everything in her power to coerce him. She 'was-raising hell’ with him until he did it. He was a broken man. He made a will that he had refused for many, years to make. He made an unreasonable [573]*573and unnatural will. He did so under the impression that his only daughter was well off. He showed that his mind was poisoned against his only grandson. Even up to the last, he wanted to restore the first will. The facts show that this was not his will.”
In our opinion, there is no competent evidence to support the facts claimed. The will, instead of being “unreasonable and unnatural,” is just such a one as a normal man, having in mind his moral obligation to his wife and the legal obligation assumed by him and her to care for, etc., the child they had taken into their home, might well make.
The law in .this State applicable when undue influence is claimed is well settled. We must, however, in reading the decisions, bear in mind the distinction between cases where the claim is made that such influence is exercised by a wife, the natural object of a testator’s bounty, and by those not bearing such relation. The following quotations are illustrative:
“It would be monstrous to deny to a woman who is generally an important agent in building up domestic prosperity, the right to express her wishes concerning its disposal. And there is no legal presumption against the validity of any provision which a husband may make in his wife’s favor. * * * There can be no fatally undue influence without a person incapable of protecting himself, as well as a wrongdoer to be resisted.” Latham v. Udell, 38 Mich. 238, 241, 242.
“Unless she either defrauds him or' has secured a mastery over his will, which puts him under her control, he cannot be said to have been deprived of his disposing capacity.” Pierce v. Pierce, 38 Mich. 412, 420.
“Undue influence will not be inferred from opportunity.” Leffingwell v. Bettinghouse, 151 Mich. 513, 517.
In Re Williams’ Estate, 185 Mich. 97, the opinion of [574]*574this court, written by Chief Justice Brooke, is illuminating of the question here presented. He discusses at length the character of evidence which must be produced to sustain such a claim. Many Michigan cases are cited. He quotes freely from Ginter v. Ginter, 79 Kan. 721 (101 Pac. 634, 22 L. R. A. [N. S.] 1024). This last citation is accessible to most practicing attorneys. The holdings of many courts are therein quoted from, and it appears that there is practically unanimity in adhering to the rule therein stated:
“To vitiate a will there must be more than influence. It must be undue influence. To be classed as ‘undue/ influence must place the testator in the attitude of saying: ‘It is not my will, but I must do it/ ”
Without further discussion, we content ourselves with a few quotations from some of the cases there cited and quoted from:
“It must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act.”
“The influence must overpower the volition without convincing the judgment.”
It “must be used directly to procure the will.”
“A testator may be led but not driven.”
“Persuasion and advice * * * are perfectly legal.”
“Suspicion, conjecture, possibility or guess * * * not sufficient.”
See, also, the language of Mr. Justice Brewer in Beyer v. LeFevre, supra; Meyer v. Jacobs, 123 Fed. 900, 908.
In Potter’s Appeal, 53 Mich. 106, 113, it was said:
“Manifestly, to establish undue influence in persons occupying the relation of husband and wife, the facts [575]*575and circumstances shown must not only be consistent with the hypothesis of the will having been obtained by undue influence, but it must be shown that they are inconsistent with a contrary hypothesis.”
Applying these rules to the proof here submitted, we are of the opinion that the motion of the proponent for a directed verdict should have been granted. The verdict and judgment are set aside and a new trial granted, with costs to appellant.
Wiest, Bird, and Steere, JJ., concurred with Sharpe, J.