Publisher's Synopsis
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1874 edition. Excerpt: ... PART II. FKAUD OR UNDUE INFLUENCE IN THE PROCUREMENT OF WILLS. I. Borden Of Proof. The Massachusetts court, in Baldwin v. Parker, 99 Mass. 79, clearly hold that where the contestants attempt to defeat the will, on the ground that it was obtained by fraud and undue influence, the burden of proof is upon them; and they attempt to distinguish this case from that of insanity, or mental incapacity. One would suppose they were identical in regard to the burden of proof; and so, no doubt, would this court have held, were it not for the error into which it had fallen in requiring the executor to give evidence, in the first instance, of the mental competency of the testator to execute the will. But lest we should overstate the difficulty of distinguishing the burden of proof between insanity and undue influence, we give the opinion of the court upon the point. Baldwin v. Parker, 99 Massachusetts Reports, 79. 1868. Opinion of the court by--Hoar, J. The other question reserved upon the report is of more difficulty and importance. It is the question, Upon whom is the burden of proof upon the issue of undue influence? The claim on the part of the appellants is, that the party propounding the will is bound to prove that it is the will of the testator, and not of some other person operating upon and through him. On the other hand, the executors contend that when the execution of the instrument and testamentary capacity are established, nothing more is required by law to be shown affirmatively; and that, to avoid an instrument for fraud or duress, they must be proved by him who alleges them. In support of the former view it is argued that the issue upon the probate of a will is substantially a single one, to prove that the instrument was freely...
