Opinion,
Mr. Chief Justice Gordon:
When Gottlieb Weiss made his will his soundness of mind and testamentary capacity were undoubted. Whilst his body was partially paralyzed, so that he was not able to help himself, mentally he appears to have been as active, determined, and vigorous as any of those by whom he was surrounded. The circumstances under which that will was drawn and signed were as favorable and as free from extraneous influence as could well be. It was drawn up on his own dictation by Alderman B. A. Hartman, and in the absence of the proponents ; it was regularly signed and delivered to the executor. Here, then, is a man of undoubted mental capacity, having a full knowledge of every dollar’s worth of property he has in the world, and of all obligations resting upon him, in the presence of his scrivener and the witnesses selected by himself, and in the presence of no one else, disposing of his worldly estate according to the dictates of his own untrammeled will; and yet a jury has been allowed to treat this last solemn expression of the testator, so formally, deliberately, and carefully made, as though it were the work of a driveling imbecile, and thus, in effect, to take his property from his own donees and pass it over to those for whom he certainly never intended it. The prim* facies are all against a conclusion of this kind; hence it becomes our business to inquire what were the circumstances and processes of reasoning which led to such a result.
The contestants urge that he left his property to strangers to the exclusion of those of his own blood. This, however, [269]*269of itself amounts to nothing, for no one will contend that a man may not lawfully disinherit even his own children, much more those not so nearly related to him. Had Weiss been of weak mind or memory, the circumstance here mentioned might be worthy of consideration; but as he was neither, it cannot be legitimately considered. . Moreover, he had, and repeatedly gave, his reasons for the exclusion of his relatives. Before the will was drawn one of the first questions asked of him by Alderman Hartman was, whether he had “ any relations- — brothers or sistershis reply was that he had sisters, “but they didn’t care for him and he didn’t care for them, and he wouldn’t give them anything at all.” It is thus obvious that whatever else he may have intended, he. did not intend that his relations should have any of his property. If, then, these were not to enjoy his accumulations, clearly natural affection for his own blood is out of the question, and the proponent’s case is relieved of this argument against it. The next of kin being thus passed over, and, under the circumstances, not to be considered, what was there in the nature of things to prevent his preference for Trost and wife ? They were persons with whom he preferred to live; Trost was a fellow soldier for whom he professed great affection, and together they had nursed him as well as they knew how, and that, for him at least, Weiss should have some kindly regard was certainly not unnatural.
But it is alleged that over the testator the proponents exercised an undue influence, and that through that influence they procured the legacies in controversy. Undoubtedly undue influence may so operate as to destroy, a will, for in such case the testator is not a free agent; he becomes the mere implement of another’s craft, and his testament that of the superior will. But influence short of this is not what is technically known as “undue influence.” This term has been carefully defined and its effect considered in many of our own cases; among others, Thompson v. Kyner, 65 Pa. 368; Eckert v. Flowry, 43 Pa. 46; McMahon v. Ryon, 20 Pa. 329, and Tawney v. Long, 76 Pa. 106. According to these cases, undue influence may be exercised either through threats or fraud; but however used it must, in order to avoid a will, destroy the free agency of the testator at the time and in the very act [270]*270of making the testament. Solicitations, however importunate, cannot of themselves constitute undue influence; for though these may have a constraining effect, they do not destroy the testator’s power to freely dispose of his estate.
Applying the rule here stated to the case in hand, and it seems almost ludicrous to allege that Trost and his wife exercised over Weiss such an influence as to absolutely destroy his free agency. Every fact and circumstance of the case forbid a conclusion such as this. At the time of the making of the will he was certainly under no constraint, unless it was through the influence of some previous threat or fear made or produced by the proponents : but of this there is not one word of evidence. Weiss .was a soldier; his intellectual powers were vigorous; his neighbors and the members of the societies to which he belonged had free access to him; he had an abundance of money and used it as he pleased; Trost and his wife were his tenants and servants, whom he could have dismissed or abandoned when he pleased; and to say that these persons, who were intellectually and pecuniarily his inferiors and dependents, should be able so to constrain his will as to deprive him of his free agency, seems scarcely less than absurd.
Much stress has been laid on the declarations of Weiss as supporting the contention of the contestants, but an examination proves that they really amount to very little. Of these declarations I select an example from the testimony of Emil Henck, who, from the manner in which he testifies, may be trusted to make out the best case possible for the contestants. He says : “ By his own free will he stated to me to take him back to the home again; that he couldn’t stand such a hechs [hag] and snake in the house; that she bothered him day and night to make a will and sign everything over to her. This has occurred frequently, and a very particular time was on Friday before the.will was made. I was standing there and he called me; he was at the window and wanted me. I went across the street and he says through the window — I was outside— 4 Henck, for God’s sake, take me to the home. I can’t stand it here any longer, because I get bothered till I do sign it.’ This was on Friday before the will was made; the dates I don’t know.”
[271]*271Obviously this was nothing but a bit of petulant scolding which amounted to very little. Admitting, however, that what he said was strictly true, it reveals neither force, fraud, nor undue constraint, but simply a persistent and irritating solicitation which he could at any time have avoided by discharging these people. In the case of Tawney v. Long the testator had complained of similar solicitations; nevertheless, we held that they did not avail to destroy his will, and that, “ even importunate persuasion, from which a delicate mind would shrink, will not invalidate a devise.” On the other hand, some two days after the execution of the will, we have the following as extracted from the evidence of Peter Segur:
“ Well, after I sat down and he called Mrs. Trost; Maggie, says he, go and get me my pocket-book under my pillow there, and get us some paper, and she went and bought five cents’ worth of paper; and so, when she was gone, he says, Why, Segur, they want to make me crazy. Says I, Who is going to make you crazy ? He says, This Henck; there were two doctors here to examine me. Says I, I don’t see nothing crazy about you. Says he, Yes my lodge brothers want to make me crazy. Oh, says I, they want just the money they will get off you; you ought to give them that money back what they gave you to help you along.
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Opinion,
Mr. Chief Justice Gordon:
When Gottlieb Weiss made his will his soundness of mind and testamentary capacity were undoubted. Whilst his body was partially paralyzed, so that he was not able to help himself, mentally he appears to have been as active, determined, and vigorous as any of those by whom he was surrounded. The circumstances under which that will was drawn and signed were as favorable and as free from extraneous influence as could well be. It was drawn up on his own dictation by Alderman B. A. Hartman, and in the absence of the proponents ; it was regularly signed and delivered to the executor. Here, then, is a man of undoubted mental capacity, having a full knowledge of every dollar’s worth of property he has in the world, and of all obligations resting upon him, in the presence of his scrivener and the witnesses selected by himself, and in the presence of no one else, disposing of his worldly estate according to the dictates of his own untrammeled will; and yet a jury has been allowed to treat this last solemn expression of the testator, so formally, deliberately, and carefully made, as though it were the work of a driveling imbecile, and thus, in effect, to take his property from his own donees and pass it over to those for whom he certainly never intended it. The prim* facies are all against a conclusion of this kind; hence it becomes our business to inquire what were the circumstances and processes of reasoning which led to such a result.
The contestants urge that he left his property to strangers to the exclusion of those of his own blood. This, however, [269]*269of itself amounts to nothing, for no one will contend that a man may not lawfully disinherit even his own children, much more those not so nearly related to him. Had Weiss been of weak mind or memory, the circumstance here mentioned might be worthy of consideration; but as he was neither, it cannot be legitimately considered. . Moreover, he had, and repeatedly gave, his reasons for the exclusion of his relatives. Before the will was drawn one of the first questions asked of him by Alderman Hartman was, whether he had “ any relations- — brothers or sistershis reply was that he had sisters, “but they didn’t care for him and he didn’t care for them, and he wouldn’t give them anything at all.” It is thus obvious that whatever else he may have intended, he. did not intend that his relations should have any of his property. If, then, these were not to enjoy his accumulations, clearly natural affection for his own blood is out of the question, and the proponent’s case is relieved of this argument against it. The next of kin being thus passed over, and, under the circumstances, not to be considered, what was there in the nature of things to prevent his preference for Trost and wife ? They were persons with whom he preferred to live; Trost was a fellow soldier for whom he professed great affection, and together they had nursed him as well as they knew how, and that, for him at least, Weiss should have some kindly regard was certainly not unnatural.
But it is alleged that over the testator the proponents exercised an undue influence, and that through that influence they procured the legacies in controversy. Undoubtedly undue influence may so operate as to destroy, a will, for in such case the testator is not a free agent; he becomes the mere implement of another’s craft, and his testament that of the superior will. But influence short of this is not what is technically known as “undue influence.” This term has been carefully defined and its effect considered in many of our own cases; among others, Thompson v. Kyner, 65 Pa. 368; Eckert v. Flowry, 43 Pa. 46; McMahon v. Ryon, 20 Pa. 329, and Tawney v. Long, 76 Pa. 106. According to these cases, undue influence may be exercised either through threats or fraud; but however used it must, in order to avoid a will, destroy the free agency of the testator at the time and in the very act [270]*270of making the testament. Solicitations, however importunate, cannot of themselves constitute undue influence; for though these may have a constraining effect, they do not destroy the testator’s power to freely dispose of his estate.
Applying the rule here stated to the case in hand, and it seems almost ludicrous to allege that Trost and his wife exercised over Weiss such an influence as to absolutely destroy his free agency. Every fact and circumstance of the case forbid a conclusion such as this. At the time of the making of the will he was certainly under no constraint, unless it was through the influence of some previous threat or fear made or produced by the proponents : but of this there is not one word of evidence. Weiss .was a soldier; his intellectual powers were vigorous; his neighbors and the members of the societies to which he belonged had free access to him; he had an abundance of money and used it as he pleased; Trost and his wife were his tenants and servants, whom he could have dismissed or abandoned when he pleased; and to say that these persons, who were intellectually and pecuniarily his inferiors and dependents, should be able so to constrain his will as to deprive him of his free agency, seems scarcely less than absurd.
Much stress has been laid on the declarations of Weiss as supporting the contention of the contestants, but an examination proves that they really amount to very little. Of these declarations I select an example from the testimony of Emil Henck, who, from the manner in which he testifies, may be trusted to make out the best case possible for the contestants. He says : “ By his own free will he stated to me to take him back to the home again; that he couldn’t stand such a hechs [hag] and snake in the house; that she bothered him day and night to make a will and sign everything over to her. This has occurred frequently, and a very particular time was on Friday before the.will was made. I was standing there and he called me; he was at the window and wanted me. I went across the street and he says through the window — I was outside— 4 Henck, for God’s sake, take me to the home. I can’t stand it here any longer, because I get bothered till I do sign it.’ This was on Friday before the will was made; the dates I don’t know.”
[271]*271Obviously this was nothing but a bit of petulant scolding which amounted to very little. Admitting, however, that what he said was strictly true, it reveals neither force, fraud, nor undue constraint, but simply a persistent and irritating solicitation which he could at any time have avoided by discharging these people. In the case of Tawney v. Long the testator had complained of similar solicitations; nevertheless, we held that they did not avail to destroy his will, and that, “ even importunate persuasion, from which a delicate mind would shrink, will not invalidate a devise.” On the other hand, some two days after the execution of the will, we have the following as extracted from the evidence of Peter Segur:
“ Well, after I sat down and he called Mrs. Trost; Maggie, says he, go and get me my pocket-book under my pillow there, and get us some paper, and she went and bought five cents’ worth of paper; and so, when she was gone, he says, Why, Segur, they want to make me crazy. Says I, Who is going to make you crazy ? He says, This Henck; there were two doctors here to examine me. Says I, I don’t see nothing crazy about you. Says he, Yes my lodge brothers want to make me crazy. Oh, says I, they want just the money they will get off you; you ought to give them that money back what they gave you to help you along. He says, I paid in eight years and I don’t belong to the lodge two years no more; I have nothing to do with it. And then he turned round and says, Segur what would you do ? I have sisters— one sister here and one in the state of New York, I don’t know where — and neither one come here and ask me, Gottlieb, you want a drink of water, or how you getting along, or do you get anything to eat? or, in fact, do anything for you, and these people do all for me what théy can, and see I get to eat and drink. What would you do. if you were going to make your will out? Says I, Leave it to them. And he says, I have done so; they shall have all what I own after I am dead.”
Here is another piece of scolding, but this time it falls upon Henck, the witness first above named, and upon the brethren of his lodge; their solicitations are now setting him crazy. We have now a commendation of the Trosts, and the statement that he had left to them his entire property in preference to [272]*272his next of kin; and clearly, if he had ever felt any ill will towards Mrs. Trost, it has now evaporated, and Henck is the one who has in turn to bear the smiting of the rod of his mouth. But beyond these declarations, which, as we have seen, balance each other, and which are, in any event, of little consequence, there is no evidence that these proponents did not do their duty to the testator fairly and well, or that they adopted any improper or unlawful means to induce the devise in their favor.
The judgment is reversed.