UNDUE INFLUENCE. The use by one, in whom a confidence is reposed by another holds a real or apparent authority over him, of such confidence or authority for 'the pur pose of obtaining an unfair advantage of his weakness of mind, or of his necessities or ; Dolliver v. Dolliver, 94 Cal. 642, 3G Pac. 4; or to constrain him to do that which he would not have done without the exercise of such control. Bennett v. Bennett, 50 N. J. Eq. 439, 26 Atl. 573.
That influence which compels one to do that which is against his will from fear, the desire of peace, or some feeling which is tantamount to force or fear. Knox v. Knox, 95 Ala. 495, 11 South. 125, 36 Am. St. Rep. 235; Frush v. Green, 86 Md. 494, 39 Atl. 863.
That which compels the testator to do something against his will, from fear, the de sire of peace or some feeling which he is unable to resist. Sheppey v. Stevens, 185 Fed. 147.
Influence gained by kindness and affec tion will not be regarded as undue, if no imposition or fraud be practised, even though it induce one to make an unequal and unjust distribution of his property, if such disposi tion is voluntarily made ; Mackall v. Mackall, 135 U. S. 167, 10 Sup. Ct. 705, 34 L. Ed. 84 ; Marx v. McGlynn, 88 N. Y. 357 ; but the ques tion of the boundary of legitimate influence must be determined by the consideration of the relation between the parties, the char acter, strength, and condition of each of them, and the application of sound sense to each given case ; Elkinton v. Brick, 44 N. J. Eq. 154, 15 Atl. 391, 1 L. R. A. 161; Hartman v. Strickler, 82 Va. 225; the mental and phys ical condition of the testator, the provisions of the will 4tself ; Myers v. Hanger, 98 Mo. 433, 11 S. W. 974; Kimball v. Cuddy, 117 Ill. 214, 7 N. E. 589 ; In re Beach, 23 App. Div.
411, 48 N. Y. Supp. 437; German Savings & Loan Soc. v. De Lashmutt, 83 Fed. 33 ; and the conduct of the testator after its execu tion ; Boyd v. Boyd, 66 Pa. 283. The ques tions of capacity and undue influence are closely connected and must be considered to gether; Tobin v. Jenkins, 29 Ark. 151.
On principles of public policy, there is a presumption of undue influence in volun tary settlements between parent and child ; 1 Ves. 401; 34 Beay. 457; guardian and ward; 10 L. R. Eq. 405; trustee and cestui que trust; 30 Beay. 39; legal adviser and client ; 2 Atk. 25; or between one and his spiritual adviser ; 2 L. C. Eq. 597, n.; s. c. 14 Ves. 273 ; and so there is said to be a presumption of undue influence in case of wills made where these relations exist be tween the parties ; Thompson v. Hawks, 14 Fed. 905 ; Marx v. McGlynn, 88 N. Y. 371; but see In re Bernsee's Will, 71 Hun 27, 24 N. Y. Supp. 504, where it was held that un due influence could not be presumed from the fact that the beneficiary stood in a confi dential relation to the testator. See Maddox v. Maddox, 114 Mo. 35, 21 S. W. 499, 35 Am. St. Rep. 734; Bulger v. Ross, 98 Ala. 267, 12 South. 803.
Undue influence will not be established if at the time of making the will the testator's freedom of will was not overcome; Trost v. Dingier, 118 Pa. 259, 12 AtI. 296, 4 Am. St. Rep. 593; Ormsby v. Webb, 134 U. S. 47, 10 Sup. Ct. 478, 33 L. Ed. 805 ; but it is held that where it is exercised by any one, even if not a beneficiary, undue influence is ground for setting the will aside ; In re Cahill's Es tate, 74 Cal. 52, 15 Pac. 364. See DURESS ;