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public, and the viewers so found. The cost. The private crossing is not in the case. of erecting an overhead crossing will be at Pennsylvania Railroad Co. v. Bogert, supra. least $20,000, as found by the court; but one- The crossing in controversy is a new and half of this will be borne by the railroad public one, and not the perpetuation of an company. We cannot concur in the conclu- old, private one. It was, therefore, a forsion that the half to be paid by the county bidden one under the act of 1901, unless will be excessive and ought to be avoided, in those who asked for it were able to show view of the amount of traffic over the new that it ought to be permitted under the proroad. The only expense to the township, visions of the fourth section of that act. based upon the interest it will have to pay if This, in our judgment, the appellees failed it should make a loan to enable it to pay for to do, and the court below should have so one-half of the construction of an overhead concluded, in the exercise of the discretion bridge, will be but $500 or $600 a year. The vested in it. crossing authorized by the court below will, The order or decree appealed from is reunder the circumstances to which we have versed, at the costs of the appellees. referred, be a death trap to the public. Few or many may be caught in it, but, without regard to the number for which the appellees

(245 Pa. 113) would set it, it was not for the court below CUMBERLAND VALLEY R. CO. V. KOONS

et al. to compare and estimate the value of life and limb and weigh that value with a few thou

(Supreme Court of Pennsylvania. April 20,

1914.) sand dollars additional expense to be incurred in erecting an overhead crossing, and call lin County.

Appeal from Court of Common Pleas, Frankthat expense excessive. Pennsylvania Rail Bill by the Cumberland Valley Railroad Comroad Co. v. Bogert, 209 Pa. 589, 59 Atl. 100. pany against George W. Koons and others. The proposed public road will occupy junction, plaintiff appeals. Reversed.

From a decree dissolving a preliminary inthe bed of a private road at the point where Argued before FELL, C. J., and BROWN, it crosses the railroad, and this was given as ELKIN, STEWART, and MOSCHZISKER, JJ. an additional reason by the court below for Walter K. Sharpe and O. C. Bowers, both of permitting the public grade crossing. This Chambersburg, for appellant. A. J. W. Hutton private road was for the exclusive accommo- and W. J. Patton, both of Chambersburg, for

appellees. dation of two farmers, and was their only means of access to a public highway. The BROWN, J. This appeal is from a decree public had no rights in it, and could not use dissolving a preliminary injunction restraining it, but they need a road to enable them to the supervisors of the township of Antrim,

Franklin county, from constructing the grade get from one public thoroughfare to the oth- crossing involved in appeal No. 294, January er, paralleling the railroad, and such road term, 1913 (Cumberland Valley R. R. Co.'s Apnecessarily crosses the railroad tracks. The peal, 91 Atl. 254), in which we have this day route adopted by the viewers happened to of the court below. For the reason stated in

filed an opinion reversing the order or decree take in the private road used by the two farm- that opinion, this appeal is sustained. ers, which crossed the tracks at grade; but The decree of the court below is reversed that crossing, which accommodated but two and the preliminary injunction is reinstated,

the costs below to be disposed of on final defamilies, has been wiped out by the new road, cree, and those on this appeal to be paid by which is to accommodate the traveling public. the appellees.

(88 Conn. 394)

Proceedings for the probate of the will of HILLS v. HART et al.

Julia G. Hills, deceased. From a decree of (Supreme Court of Errors of Connecticut. July the probate court, an appeal was taken to 13, 1914.)

the superior court by Stuart F. Hills, where 1. WILLS (S. 163*)-CONTESTS-UNDUE INFLU- there was judgment setting aside parts of the ENCE-BURDEN OF PROOF.

will, and permitting the remainder to stand, One contesting a will on the ground of undue influence has the burden of proving the and A. Elijah Hart and another, executors, undue influence.

appeal. Reversed, and new trial ordered. [Ed. Note. For other cases, see Wills, Cent.

Joseph L. Barbour and Lewis Sperry, both Dig. $$ 388–402; Dec. Dig. $ 163.*]

of Hartford, for appellants. William M. 2. WILLS (8 163*)—UNDUE INFLUENCE-PRE

SUMPTIONS-EXISTENCE OF PERSONAL CONFI- Maltbie, Albert C. Bill, and Hugh M. Alcorn, DENCE BETWEEN PARENT AND CHILD.

all of Hartford, for appellee. The existence of a relation of personal confidence between a favored legatee and testatrix, WHEELER, J. Mrs. Hills died June 22, her mother, does not raise a legal presumption of 1912; her will was executed November 13, undue influence by the legatee, nor place on her the burden of proving that the will was not pro- 1911, and probated July 9, 1912. She was cured by undue influence, for a child may use a widow, 65 years of age, having three adult all fair and bonest methods to secure his par- children, Louis, Stuart, and Mrs. Hinkley. ent's confidence and obtain a sbare of his The will gave to Mrs. Hinkley her personal bounty.

[Ed. Note.--For other cases, see Wills, Cent. and household effects and a savings bank deDig. $$ 388–402; Dec. Dig. 8 163.*]

posit of about $680; to Stuart $2,000; to a 3. WILLS (8 82*)-TESTAMENTARY CAPACITY_long-time domestic servant $1,000; and in CONTESTS.

the fifth paragraph it disposed of the residue, One possessing testamentary capacity may giving in the second clause two-thirds thereof dispose of his property as he pleases, and neither judge nor jury, in proceedings to contest to Mrs. Hinkley, and in the third clause it the will, may make one for him, though they disposed of the remaining one-third, giving may think they could treat his family connec- $1,500 to Louis and his wife and daughter, tions with greater justice.

and the balance in trust, the income of [Ed Note.–For other cases, see Wills, Cent. which should go to Louis for life, with reDig. 8 203; Dec. Dig. § 82.*]

mainder to his daughter. 4. WILLS (8 166*)-CONTESTS-UNDUE INFLUENCE-EVIDENCE.

The jury found that the third clause of A finding that a will executed by a woman the will and the second paragraph of the of active mind, strong intelligence, and good fifth clause of the will had been procured ence of a favored legatee, a child, cannot be rest by the undue influence of Mr. and Mrs. ed on surmise, or suspicion, or inferences drawn Hinkley, and were not the will of Mrs. Hills. from inconsequential facts, but can be based From the decree entered upon this verdict, alone on material facts established, and infer- the defendant executors appeal. ences which fairly and convincingly lead to the conclusion of undue influence.

In our discussion we shall consider in the [Ed. Note.-For_other cases, see Wills, Cent. main the facts which are conceded and those Dig. $$ 421-437; Dec. Dig. § 166.*]

most favorable to the plaintiff which the 6. WILLS (8 166*)–CONTESTS-UNDUE INFLU- jury might reasonably have found upon the ENCE-EVIDENCE.

evidence. The existence of undue influence may be shown by direct proof, or by inferences from facts

[1] The burden of proving the issue of unproven which logically and reasonably lead to due influence was upon the contestant. He the conclusion of undue influence.

alleged it; he must prove it by a fair pre[Ed. Note.-For other cases, see Wills, Cent. ponderance of the evidence. Dig. 88 421-437; Dec. Dig. § 166.*]

[2] The fact that there existed a relation 6. Wills (8 166*)—UNDUE INFLUENCE—Evio of personal confidence between Mrs. Hinkley DENCE-SUFFICIENCY.

Evidence held not to justify a finding that a and her mother raised no legal presumption will was procured by undue influence of a fa- of undue influence, and did not place upon vored legatee.

her the burden of proving that the will had not [Ed. Note. For other cases, see Wills, Cent. been procured by undue influence as alleged. Dig. $$ 421-437; Dec. Dig. § 166.*] 7. Wills (8 155*)—UNDUE INFLUENCE-Evio ist between parent and child.

Confidence, close and continuing, should ex

It is the DENCE.

Where a will represents the wishes of testa-child's privilege to anticipate some share of trix, and is such a disposition of her estate as the parent's estate. He may use all fair and she desires, and she has not done anything honest methods to secure his parent's confiagainst her will, and her discretion has not been controlled, or her free agency overcome, the dence and obtain a share of his bounty. mere fact that a favored legatee had succeeded From such a relationship alone, the law will in poisoning testatrix's mind against a child prac-never presume confidence has been abused tically disinherited does not alone justify an inference that the will was the result of undue in. and undue influence exercised. Lockwood v. fluence.

Lockwood, 80 Conn. 513, 523, 69 Atl. 8; [Ed. Note.--For_other cases, see Wills, Cent. Mooney v. Mooney, 80 Conn. 446, 452, 68 Atl. Dig. $8 375–381; Dec. Dig. § 155.*]

985; Dale's Appeal, 57 Conn. 127, 144, 17 Appeal from Superior Court, Hartford Atl. 757. County; William S. Case, Judge.

The distinction between a legatee who is a •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexed

91 A.-17

child and one who is a stranger, being the under which, assuming the estate was then religious adviser, business agent, attorney, as much as 'at the decease of Mrs. Iills, or physician of the testatrix, is marked. The Mrs. Hinkley would have received about law casts the burden of showing the absence $27,000, and Stuart and Louis about $15,000 of undue influence upon the legatee holding each. such fiduciary relation; otherwise it remains Under a former will admittedly made in with the party alleging it.

January, 1911, Stuart received $5,000; Louis Mrs. Hills was, at the time she executed and Mrs. Hinkley about $28,000 each. her will on November 11, 1911, and long Under the will before us Stuart received prior thereto, in good physical and mental | $2,000, Louis about $19,000, or $9,000 less health, and so continued until a few days than by the January will, and Mrs. Hinkley of her death, which occurred June 22, 1912. about $40,000, or $12,000 more than by the She was a woman of quick and active mind, January will. of strong intelligence, fair education, broad If the verdict stands, Louis would get over information, widely traveled, keenly observ- $32,000, and $13,000 of this would be free ant, of retentive memory, and deeply in- from a trust, Mrs. Hinkley would get nearly terested in all current events. She possessed $15,000, and Stuart would get over $13,000. good reasoning powers and reached her con It is conceded that Mrs. Hills never de clusions by a logical sequence of reasoning; parted from her setttled purpose to leave the she was a strong thinker, very independent in body of Louis' share in trust, and to give her judgment and positive in her opinions; Mrs. Hinkley a larger share than either of she had had unusual business experience for the sons. a woman, and held religious views, liberal The verdict reverses her intention and and catholic. She regulated her own life, gives Louis over twice as much as Mrs. Hinkdomipated her household, and managed her ley, and gives him about $13,000 free from business affairs with such sagacity, courage, the trust. and success that the competency her husband In the first will Stuart receives substanleft her had more than doubled, although she tially the same share as Louis; in the Janhad provided for her children and self gen- uary will he only receives a $5,000 bequest; erously.

and in the November will he receives only [3] She had the legal right to make her $2,000. Were these changes in her disposiown will as she pleased. Neither judge nortion of her property due to a natural increase jury have the power to wake one for her, in her love for her daughter and a decrease even though they may think they can treat in her feeling for Stuart, or were they due her family connections with greater justice. to other causes? Sturdevant's Appeal, 71 Conn. 392, 397, 42

[5] The existence of undue influence may Atl. 70.

be shown by direct proof, and none such [4] It is not inconceivable that a testatrix is here claimed, or by inferences from proven of this character, even in the strength of her facts which logically and reasonably lead to vigor, may have been unduly influenced; it such conclusion; and it is from such proof

the contestant insists the jury might have is, however, certain such a conclusion, so foreign to her true character, should not be drawn the inference of undue influence.

[6,7] The ultimate question is: Upon the reached upon surmise, or suspicion, or inferences drawn from inconsequential facts, evidence could the jury reasonably have but should rest on the safe foundation of drawn the inference of undue influence?

The contestant bases his claim of undue material facts proven, and inferences which fairly and convincingly lead to that conclu- tions: That there existed on the part of

influence, in general, upon these considerasion.

Mrs. Hills toward her son Stuart so great The circumstances surrounding the making and execution of Mrs. Hills' will furnish love as to make him her favorite child; that ing and execution of Mrs. Hills' will furnish this manifested itself in the will made prior no evidence whatever of undue influence.

to January, 1911, which gave him about oneThe will makes an unequal distribution third of her estate; that her affection for among the children, yet one which is neither him began to abate in the year 1909, and her unnatural nor in dissonance with the testa association with him ceased in December, trix's expressed intent.

1910, but that in reality her love for him There were special reasons for leaving never died; that there was no adequate cause Louis' share in trust. Mrs. Hinkley was an in his conduct or in their relations to each only daughter, who had always lived with other to account for her change in affection her mother, and her mother had frequently or for the diminished share in her bounty declared her purpose of giving her the larg. shown by the wills of January and Novemest share of her estate. Stuart had inberit-ber, 1911; that Mr. and Mrs. Hinkley, living ed and still retained a share of his father's as they did with Mrs. Hills, had the fullest estate, and was capable of earning and did opportunity to have not only gained her conearn a fair living.

fidence, but to have influenced her testamenThe jury might have found from the testi- tary treatment of Stuart to the advantage of mony of Stuart that some time prior to Janu. Mrs. Hinkley; that Mrs. Hinkley was of a ary, 1911, a former will of Mrs. Hills existed hard and domineering character, and on sev.

eral occasions indicated her control over her, undue influence. If the will represented her mother and her own purpose to bend her wishes, and was such a disposition of her esmother to her will; that both Mr. and Mrs. tate as she desired, and she was then of Hinkley were keenly alive to bettering their sound and disposing mind, it is her will, and own financial prospects; that through ad- not another's. She has not done something vancing years Mrs. Hills must have become against her will, and contrary to her wishes. more or less dependent upon her daughter; Her discretion and judgment have not been that Mrs. Hinkley was a woman capable of controlled, and her free agency has not been intense feeling and loved her brother deeply, overcome. This is our test.

This is our test. St. Leger's Apnever became reconciled to his marriage, al- peal, 34 Conn. 434, 442, 91 Am. Dec. 735. ways disliked his wife, and toward the end All the evidence points to the uncontradictof their association the relation between Mrs. ed fact that the will of November, 1911, repHinkley and Mrs. Stuart Hills reached a resented fairly and fully Mrs. Hills' desires point of armed neutrality until in February, and feelings at that time toward her chil1910, the estrangement, through a quarrel, dren. She went about its making, as she did developed into an open rupture of all associ- about all of her business, alone; she instructation; that the root of the trouble lay in a ed her lawyer as to her desires, and she did feeling of jealousy engendered in her because not ask him for advice as to how she should of her brother's marriage; that Mrs. Hinkley dispose of her estate. Neither Mr. nor Mrs. was the instigator of the February quarrel Hinkley were present at the interviews reand the one at fault; that Mrs. Hills' knowl- garding the will, and, so far as this record edge of it must have come through her, and shows, they never knew nor made a request that in consequence of it the relations be- or a suggestion about its contents, and never tween her brother Stuart's family and her made a request of Mrs. Hills as to the dismother's almost ceased, and her mother's position of her estate. feeling for Stuart began to change; that the If they could be held responsible for havcessation of all family relations ceased at ing poisoned the mind of Mrs. Hills against Christmas, 1910, when Stuart returned the Stuart, they cannot be found guilty of havChristmas gifts sent by Mrs. Hills', Louis' ing controlled the provisions of her will, in and Mrs. Hinkley's families to Stuart and his the absence of proof that they had ever comchildren because no present had been sent his municated with her about it, or she with wife; that the recital of the reasons for his them, and in the face of the fact that the course in returning the presents must have will represented her feelings and wishes, come to Mrs. Hills through Mrs. Hinkley, and and was made in their absence, and that they could not have been fairly presented in view were and remained ignorant of its contents. of the immediate making by Mrs. Hills of the In addition to this, we do not think the eviJanuary will; that on several occasions Mr. dence fairly susceptible of the inference that Hinkley had made false statements of Stuart either Mr. or Mrs. Hinkley designedly sought to his mother, and after her decease had ex- to poison the mother's mind against the son. pressed deep regret at his course; that all It was an unhappy family difference. The the circumstances indicate Mr. and Mrs. mother had changed in her feeling for her Hinkley poisoned the mind of Mrs. Hills son. Its beginnings came through the family against Stuart, and as a consequence she de- dislike for Stuart's wife. The February, termined to deprive him of the great part of 1910, difference between Mrs. Hinkley and her bounty as given him by the earliest will, Mrs. Stuart Hills—and the jury might very and in November, 1911, as her prejudices reasonably have found that Mrs. Hinkley was grew, she further decreased his share.

the one at fault at this time-greatly agAside from the conduct of Mr. and Mrs. gravated the strained relations. When Hinkley toward Stuart in the last sickness Stuart returned the Christmas presents beof Mrs. Hills, and after her decease, and the cause his wife had been overlooked, his loyalinferences to be drawn from the demeanor of ty toward his wife deeply offended his mothwitnesses and the conduct of the appellees' er, and was the occasion for a cessation of case, these are the considerations from which family relations between the families. It the contestants maintain that the jury might was not what Mrs. Hinkley told her mother reasonably have found undue influence on of this incident, but the fact of the return of the part of Mr. and Mrs. Hinkley.

the presents which led to the breach between Assuming that the jury might have found mother and son. The will of January, 1911, the substantial elements of these considera- | immediately followed. Mother and son failtions proven, it would still be necessary to ed to greet each other when they met. Each inquire where is there any evidence that Mrs. side claims the other was at fault; but it is Hills was unduly influenced in making her clear the mother believed it was her son's will?

fault, and she grieved greatly over it. If Mr. and Mrs. Hinkley had systematical The testimony is abundant and unimpeachly sought to poison the mother's mind against able that the November will did express Mrs. her son and had succeeded, and under the Hills' wishes, and continued to express them influences of the prejudices so generated she to the last. made her will, it does not follow as an infer If the jury did find that Mrs. Hinkley had ence that the will was the product of their a motive for desiring a change in her moth

er's will, and found that she had abundant, so that a larger first mortgage might be obmeans and opportunity for influencing her tained and to pay interest on the first mortgage, mother, this is very far from furnishing evi- and the defendant executed a note payable on dence that the opportunity was used and began repairing the premises on the underused for an improper purpose.

standing that the second mortgage should not All of the statements Mr. Hinkley is said be demanded until the repairs were made and a to have made to Mrs. Hills of Stuart—and ment to forbear demand of interest of defend

larger first mortgage secured. Held, an agreethey appear to be confined to three subjects—ant if he made the repairs, and that an assignee were made quite a time before the breach of the note with notice was affected by the bet'een mother and son; the son subsequent-agreement, so that his demand of interest and ly had an opportunity to explain them; two the six months was premature.

his action to foreclose before the expiration of of the subjects were founded on fact; the [Ed. Note.-For other cases, see Mortgages, relations between the mother and son continu-Cent. Dig. $ 1262; Dec. Dig. § 423.*] ed until long after cordial and affectionate; and no change in her will was made until County; Joseph P. Tuttle, Judge.

Error from Superior Court, New Haven much later. Under these circumstances we regard the statements, if made, as of very seph Risley and another. Judgment for de

Action by Edward E. Stevens against Jolittle weight in tending to prove the undue

fendants, and plaintiff brings error. Writ influence charged.

of error dismissed. There is no reasonable basis, when all the evidence is considered, for the argument that George E. Beers, of New Haven, and L. Mrs. Hills was dependent upon Mrs. Hinkley. Russell Carter, of Waterbury, for plaintiff The character and characteristics of Mrs. in error. Walter J. Walsh and Charles J. Hills show the reverse to be the truth. Martin, both of New Haven, for defendants

So, too, it could not be reasonably found in error. that Mrs. Hills was under the dominion of her daughter. She appears to have been as THAYER, J. [1] The plaintiff in error, as little likely to be a subject for undue influence assignee of a note and mortgage given by as any reasoning woman, and to have pos- the defendant in error to one Cables, brought sessed and retained a positive, even aggres- his action to the superior court to foreclose sive, and independent mind.

the mortgage. It was not denied upon the To take up, one by one, and analyze in de trial that the note and mortgage were given tail the several matters which the contestants by the defendant to Cables, or that they had assert furnish ground for the inference of been assigned to the plaintiff, or that they undue influence would prolong the opinion to had not been paid. Admitting by not deunseemly lengths. It is sufficient to say that nying these facts, the defendant as a second we have examined the evidence with care, and defense alleged that the plaintiff had reare satisfied that the verdict is manifestlyceived the interest on the mortgage note to a against its weight, and should not stand. date subsequent to the date of bringing the We reach this conclusion after giving due action for foreclosure without reserving the consideration to the court's refusal to set right to bring suit upon the note prior to aside this verdict, and with a full apprecia- the date to which interest was paid, and also tion of the work of the court throughout the that the plaintiff took the assignment with presentation of the evidence, and in its ad- full knowledge of an agreement, which apmirable charge to the jury. We know of no pears in the record, between the defendant subtantial error which the record shows and Cables, the mortgagee, and that the dethe trial court committed save only in its fendant was at work carrying out the agreefailure to set aside the verdict.

ment at the time the suit was brought. The There is error, the judgment is reversed, reply admitted that the plaintiff had knowland a new trial ordered. In this opinion the edge of the agreement at the time he purother judges concurred.

chased the assignment. The agreement, of

the same date as the note and mortgage, pro(88 Conn. 442)

vides that: STEVENS v. RISLEY et al.

If Risley “shall overhaul the Grand avenue (Supreme Court of Errors of Connecticut.

property, this day deeded by Cables to Risley, July 13, 1914.)

converting the main building situated on said 1. PLEADING (8 129*)-PLEA OR ANSWER-AD- Grand avenue, at the corner of South Front

street, in said New Haven, converting to conMISSIONS

In an action by the assignee of a note and sist of putting the stores in order, and making mortgage to foreclose the mortgage, defendant, tenement rooms on second and third floors, and by not denying that the note and mortgage generally repairing what is necessary in both were given by him

to another or that they had buildings to make them rentable, that he, the þeen assigned to the plaintiff or that they had said Cables will, assist the said Risley to obbeen made, admitted such facts.

tain credit for some of the material for the [Ed. Note.-For other cases, see Pleading, second mortgage so that a larger first mort

said repairs when necessary, and to release the Cent. Dig. 88 270-275; Dec. Dig. & 129.*]

gage can be obtained on said premises, Risley 2. MORTGAGES (8 423*)-TIME TO FORECLOSE. to receive up to $2,500 of the increase of the first

Defendant purchased an equity of redemp- mortgage, and the balance of the said increase tion in property which he was to repair, and to be applied to his credit on the second mortthe seller agreed to release a second mortgage'gage, Cables to pay the interest on first mort*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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