The question whether a certain testamentary disposition was the result of the exercise of "undue influence" upon the testator is the subject of frequent litigation. The courts have not been very successful in defining what constitutes undue important consideration in determining the question of undue influence.22

Influence sufficient to defeat a testamentary provision, but it is stated, in a general way, that it must be such persuasion or importunity as to overpower the will of the testator, without convincing his judgment,17 that is, it involves a substitution of another person's will for that of testator.18 But the mere fact that one persuades the testator to make a will in his favor, or induces him to do so by argument or flattery, does not, of itself, show undue influence,19 and so " appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like," are legitimate, and do not affect the validity of the will.20

15. 1 Stimson's Am. St. Law, Sec. 2645. See Page, Wills, Sec.Sec. 229-231; Schouler, Wills (5th Ed.), Sec.'255.

16. Bigelow, Wills, 63 et seq.; Page, Wills, Sec.Sec. 232-240; 1 Stimson's Am. St. Law, Sec.Sec. 2700-2705; Schouler, Wills, Sec. 359, et ,seq.

The question of undue influence is entirely distinct from that of the mental capacity of the testator to make a will, which will hereafter be considered;21 but the fact that, though mentally capable of making a will, he is wanting in physical and mental vigor, is usually an

17. Hall v. Hall, L. R. 1 Prob. & Div. 481; Coghill v. Kennedy, 119 Ala. 641, 24 So. 459; In re Clark's Estate, (Cal.), 149 Pac. 828; Wiley v. Gordan, 181 Ind. 252, 104 N. E. 500; Kennedy v. Kennedy. 124 Md. 38, 91 Atl. 759; Gay v. Gillilan, 92 Mo. 250, 1 Am. St. Rep. 712; In re Tuni-son's Will, (N. J.), 93 Atl. 1087; In re Diggins' Estate, 76 Ore. 341, 149 Pac. 73; Herster v. Her-ster 122 Pa. 239, 9 Am. St. Rep. 95; Scott v. Townsend, 106 Tex. 322, 166 S. W. 1138.

18. Wingrove v. Wingrove, 11 Prob. Div. 81; Phillips v. Gaither, 191 Ala. 87, 67 So. 1001; May-nard v. Vinton, 59 Mich. 139, 60 Am. Rep. 276; Schmidt v. Schmidt, 47 Minn. 451, 50 N. W. 598; Riley v. Sherwood, 144 Mo. 354, 45 S. W. 1077; Wadding-ton v. Buzby, 45 N. J. Eq. 173,

14 Am. St. Rep. 706; In re Mueller's Will, 170 N. C. 28, 86 S. E. 719; Cook v. Bolduc, 24 Wyo. 281, 157 Pac. 580, 158 Pac. 266.

19. 1 Woerner, Administration, Sec. 31; Mcdaniel, v. Crosby, 19 Ark. 533; Yoe v. Mccord, 74 111. 33; Bush v. Lisle, 89 Ky. 393, 12 S. W. 762; In re Mclntyre's Estate, 193 Mich. 257, 159 N. W. 517; Hughes v. Murtha, 32 N. J. Eq. 288; Trost v. Dingier, 118 Pa. St. 259, 4 Am. St. Rep. 593.

20. Hall v. Hall, L. R. 1 Prob. & Div. 481; Bevelot v. Lestrade, 153 111. 625, 38 N. E. 1056; Gay v. Gillilan, 92 Mo. 250, 1 Am. St. Rep. 712; In re Mondorf's Will, 110 N. Y. 450, 18 N. E. 256; In re Craven's Will, 169 N. C. 561, 86 S. E. 587.

21. See post, Sec. 595.

The fact that a beneficiary under the will sustains a confidential relation towards testator, such as that of attorney or guardian, does not of itself, according to some authorities, raise a presumption of undue influence sufficient to overthrow the will, though, under such circumstances, much slighter evidence of improper acts on the part of the beneficiary will be required than ordinarily.23 By some decisions, however, the mere existence of the confidential relation raises a presumption that the will is invalid.24 That a beneficiary who is not a near relative himself prepared the instrument is usually regarded as tending to show undue influence.27