Pennsylvania Railroad Co. v. Bogert, supra. The crossing in controversy is a new and public one, and not the perpetuation of an old, private one. It was, therefore, a forbidden one under the act of 1901, unless those who asked for it were able to show that it ought to be permitted under the provisions of the fourth section of that act. This, in our judgment, the appellees failed to do, and the court below should have so concluded, in the exercise of the discretion vested in it. public, and the viewers so found. The cost The private crossing is not in the case. of erecting an overhead crossing will be at least $20,000, as found by the court; but onehalf of this will be borne by the railroad company. We cannot concur in the conclusion that the half to be paid by the county will be excessive and ought to be avoided, in view of the amount of traffic over the new road. The only expense to the township, based upon the interest it will have to pay if it should make a loan to enable it to pay for one-half of the construction of an overhead bridge, will be but $500 or $600 a year. The crossing authorized by the court below will, under the circumstances to which we have 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 would set it, it was not for the court below to compare and estimate the value of life and limb and weigh that value with a few thousand dollars additional expense to be incurred in erecting an overhead crossing, and call that expense excessive. Pennsylvania Railroad Co. v. Bogert, 209 Pa. 589, 59 Atl. 100. The proposed public road will occupy the bed of a private road at the point where it crosses the railroad, and this was given as an additional reason by the court below for permitting the public grade crossing. This private road was for the exclusive accommodation of two farmers, and was their only means of access to a public highway. The public had no rights in it, and could not use it, but they need a road to enable them to get from one public thoroughfare to the other, paralleling the railroad, and such road necessarily crosses the railroad tracks. The route adopted by the viewers happened to take in the private road used by the two farmers, which crossed the tracks at grade; but that crossing, which accommodated but two families, has been wiped out by the new road, which is to accommodate the traveling public. The order or decree appealed from is reversed, at the costs of the appellees. (245 Pa. 113) CUMBERLAND VALLEY R. CO. v. KOONS et al. (Supreme Court of Pennsylvania. April 20, lin County. Bill by the Cumberland Valley Railroad Com- Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHZISKER, JJ. Walter K. Sharpe and O. C. Bowers, both of Chambersburg, for appellant. A. J. W. Hutton and W. J. Patton, both of Chambersburg, for appellees. BROWN, J. This appeal is from a decree dissolving a preliminary injunction restraining Franklin county, from constructing the grade the supervisors of the township of Antrim, crossing involved in appeal No. 294, January term, 1913 (Cumberland Valley R. R. Co.'s Appeal, 91 Atl. 254), in which we have this day of the court below. For the reason stated in filed an opinion reversing the order or decree that opinion, this appeal is sustained. The decree of the court below is reversed and the preliminary injunction is reinstated, the costs below to be disposed of on final decree, and those on this appeal to be paid by the appellees. (88 Conn. 394) HILLS v. HART et al. Proceedings for the probate of the will of Julia G. Hills, deceased. From a decree of (Supreme Court of Errors of Connecticut. July the probate court, an appeal was taken to [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 388-402; Dec. Dig. § 163.*] the superior court by Stuart F. Hills, where there was judgment setting aside parts of the will, and permitting the remainder to stand, and A. Elijah Hart and another, executors, appeal. Reversed, and new trial ordered. Joseph L. Barbour and Lewis Sperry, both of Hartford, for appellants. William M. 2. WILLS (§ 163*)-UNDUE INFLUENCE PRE- Maltbie, Albert C. Bill, and Hugh M. Alcorn, SUMPTIONS-EXISTENCE OF PERSONAL CONFIDENCE BETWEEN PARENT AND CHILD. The existence of a relation of personal confidence between a favored legatee and testatrix, her mother, does not raise a legal presumption of undue influence by the legatee, nor place on her the burden of proving that the will was not procured by undue influence, for a child may use all fair and honest methods to secure his parent's confidence and obtain a share of his bounty. [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 388-402; Dec. Dig. § 163.*] 3. WILLS (§ 82*)-TESTAMENTARY CAPACITYCONTESTS. One possessing testamentary capacity may dispose of his property as he pleases, and neither judge nor jury, in proceedings to contest the will, may make one for him, though they may think they could treat his family connections with greater justice. [Ed Note.-For other cases, see Wills, Cent. Dig. § 203; Dec. Dig. § 82.*] 4. WILLS (§ 166*)-CONTESTS-UNDUE INFLU ENCE EVIDENCE. all of Hartford, for appellee. WHEELER, J. Mrs. Hills died June 22, 1912; her will was executed November 13, 1911, and probated July 9, 1912. She was a widow, 65 years of age, having three adult children, Louis, Stuart, and Mrs. Hinkley. The will gave to Mrs. Hinkley her personal and household effects and a savings bank deposit of about $680; to Stuart $2,000; to a long-time domestic servant $1,000; and in the fifth paragraph it disposed of the residue, giving in the second clause two-thirds thereof to Mrs. Hinkley, and in the third clause it disposed of the remaining one-third, giving $1,500 to Louis and his wife and daughter, and the balance in trust, the income of which should go to Louis for life, with remainder to his daughter. 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 reasoning powers was procured by undue influence 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. [Ed. Note.-For_other cases, see Wills, Cent. Dig. §§ 421-437; Dec. Dig. § 166.*] 5. WILLS (§ 166*)-CONTESTS-UNDUE INFLUENCE EVIDENCE. The existence of undue influence may be shown by direct proof, or by inferences from facts proven which logically and reasonably lead to the conclusion of undue influence. [Ed. Note. For other cases, see Wills, Cent. Dig. 88 421-437; Dec. Dig. § 166.*] 6. WILLS (§ 166*)-UNDUE INFLUENCE-EVI DENCE-SUFFICIENCY. Where a will represents the wishes of testatrix, and is such a disposition of her estate as she desires, and she has not done anything against her will, and her discretion has not been controlled, or her free agency overcome, the mere fact that a favored legatee had succeeded in poisoning testatrix's mind against a child practically disinherited does not alone justify an inference that the will was the result of undue influence. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 375-381; Dec. Dig. § 155.*] In our discussion we shall consider in the main the facts which are conceded and those most favorable to the plaintiff which the jury might reasonably have found upon the evidence. [1] The burden of proving the issue of undue influence was upon the contestant. He alleged it; he must prove it by a fair preponderance of the evidence. [2] The fact that there existed a relation of personal confidence between Mrs. Hinkley and her mother raised no legal presumption of undue influence, and did not place upon her the burden of proving that the will had not been procured by undue influence as alleged. Confidence, close and continuing, should exist between parent and child. It is the child's privilege to anticipate some share of the parent's estate. He may use all fair and honest methods to secure his parent's confidence and obtain a share of his bounty. From such a relationship alone, the law will never presume confidence has been abused and undue influence exercised. Lockwood v. Lockwood, 80 Conn. 513, 523, 69 Atl. 8; Mooney v. Mooney, 80 Conn. 446, 452, 68 Atl. 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 Indexes 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. Hills, 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 with the party alleging it. Mrs. Hills was, at the time she executed her will on November 11, 1911, and long prior thereto, in good physical and mental health, and so continued until a few days of her death, which occurred June 22, 1912. She was a woman of quick and active mind, of strong intelligence, fair education, broad information, widely traveled, keenly observant, of retentive memory, and deeply interested in all current events. She possessed good reasoning powers and reached her conclusions by a logical sequence of reasoning; she was a strong thinker, very independent in her judgment and positive in her opinions; she had had unusual business experience for a woman, and held religious views, liberal and catholic. She regulated her own life, dominated her household, and managed her business affairs with such sagacity, courage, and success that the competency her husband left her had more than doubled, although she had provided for her children and self generously. [3] She had the legal right to make her own will as she pleased. Neither judge nor jury have the power to make one for her, even though they may think they can treat her family connections with greater justice. Sturdevant's Appeal, 71 Conn. 392, 397, 42 Atl. 70. [4] It is not inconceivable that a testatrix of this character, even in the strength of her vigor, may have been unduly influenced; it is, however, certain such a conclusion, so foreign to her true character, should not be reached upon surmise, or suspicion, or inferences drawn from inconsequential facts, but should rest on the safe foundation of material facts proven, and inferences which fairly and convincingly lead to that conclu sion. The circumstances surrounding the making and execution of Mrs. Hills' will furnish ing and execution of Mrs. Hills' will furnish no evidence whatever of undue influence. Under a former will admittedly made in January, 1911, Stuart received $5,000; Louis and Mrs. Hinkley about $28,000 each. Under the will before us Stuart received $2,000, Louis about $19,000, or $9,000 less than by the January will, and Mrs. Hinkley about $40,000, or $12,000 more than by the January will. If the verdict stands, Louis would get over $32,000, and $13,000 of this would be free from a trust, Mrs. Hinkley would get nearly $15,000, and Stuart would get over $13,000. It is conceded that Mrs. Hills never departed from her setttled purpose to leave the body of Louis' share in trust, and to give Mrs. Hinkley a larger share than either of the sons. The verdict reverses her intention and gives Louis over twice as much as Mrs. Hinkley, and gives him about $13,000 free from the trust. In the first will Stuart receives substantially the same share as Louis; in the January will he only receives a $5,000 bequest; and in the November will he receives only $2,000. Were these changes in her disposition of her property due to a natural increase in her love for her daughter and a decrease in her feeling for Stuart, or were they due to other causes? [5] The existence of undue influence may be shown by direct proof, and none such is here claimed, or by inferences from proven facts which logically and reasonably lead to such conclusion; and it is from such proof the contestant insists the jury might have drawn the inference of undue influence. [6,7] The ultimate question is: Upon the evidence could the jury reasonably have drawn the inference of undue influence? The contestant bases his claim of undue influence, in general, upon these considerations: That there existed on the part of Mrs. Hills toward her son Stuart so great love as to make him her favorite child; that this manifested itself in the will made prior 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. There were special reasons for leaving Louis' share in trust. Mrs. Hinkley was an only daughter, who had always lived with her mother, and her mother had frequently declared her purpose of giving her the largest share of her estate. Stuart had inherited and still retained a share of his father's estate, and was capable of earning and did earn a fair living. The jury might have found from the testimony of Stuart that some time prior to January, 1911, a former will of Mrs. Hills existed 1910, but that in reality her love for him never died; that there was no adequate cause in his conduct or in their relations to each other to account for her change in affection or for the diminished share in her bounty shown by the wills of January and November, 1911; that Mr. and Mrs. Hinkley, living as they did with Mrs. Hills, had the fullest opportunity to have not only gained her confidence, but to have influenced her testamentary treatment of Stuart to the advantage of Mrs. Hinkley; that Mrs. Hinkley was of a hard and domineering character, and on sev All the evidence points to the uncontradicted fact that the will of November, 1911, represented fairly and fully Mrs. Hills' desires and feelings at that time toward her children. She went about its making, as she did about all of her business, alone; she instructed her lawyer as to her desires, and she did not ask him for advice as to how she should dispose of her estate. Neither Mr. nor Mrs. Hinkley were present at the interviews regarding the will, and, so far as this record shows, they never knew nor made a request or a suggestion about its contents, and never made a request of Mrs. Hills as to the disposition of her estate. 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. 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 of their association the relation between Mrs. Hinkley and Mrs. Stuart Hills reached a point of armed neutrality until in February, 1910, the estrangement, through a quarrel, developed into an open rupture of all association; that the root of the trouble lay in a feeling of jealousy engendered in her because of her brother's marriage; that Mrs. Hinkley was the instigator of the February quarrel and the one at fault; that Mrs. Hills' knowledge of it must have come through her, and that in consequence of it the relations between her brother Stuart's family and her mother's almost ceased, and her mother's feeling for Stuart began to change; that the cessation of all family relations ceased at Christmas, 1910, when Stuart returned the Christmas gifts sent by Mrs. Hills', Louis' and Mrs. Hinkley's families to Stuart and his children because no present had been sent his wife; that the recital of the reasons for his course in returning the presents must have come to Mrs. Hills through Mrs. Hinkley, and could not have been fairly presented in view of the immediate making by Mrs. Hills of the January will; that on several occasions Mr. Hinkley had made false statements of Stuart to his mother, and after her decease had expressed deep regret at his course; that all the circumstances indicate Mr. and Mrs. Hinkley poisoned the mind of Mrs. Hills against Stuart, and as a consequence she determined to deprive him of the great part of her bounty as given him by the earliest will, and in November, 1911, as her prejudices grew, she further decreased his share. Aside from the conduct of Mr. and Mrs. Hinkley toward Stuart in the last sickness of Mrs. Hills, and after her decease, and the inferences to be drawn from the demeanor of witnesses and the conduct of the appellees' case, these are the considerations from which the contestants maintain that the jury might reasonably have found undue influence on the part of Mr. and Mrs. Hinkley. Assuming that the jury might have found the substantial elements of these considerations proven, it would still be necessary to inquire where is there any evidence that Mrs. Hills was unduly influenced in making her will? If Mr. and Mrs. Hinkley had systematically sought to poison the mother's mind against her son and had succeeded, and under the influences of the prejudices so generated she made her will, it does not follow as an inference that the will was the product of their If they could be held responsible for having poisoned the mind of Mrs. Hills against Stuart, they cannot be found guilty of having controlled the provisions of her will, in the absence of proof that they had ever communicated with her about it, or she with them, and in the face of the fact that the will represented her feelings and wishes, and was made in their absence, and that they were and remained ignorant of its contents. In addition to this, we do not think the evidence fairly susceptible of the inference that either Mr. or Mrs. Hinkley designedly sought to poison the mother's mind against the son. It was an unhappy family difference. The mother had changed in her feeling for her son. Its beginnings came through the family dislike for Stuart's wife. The February, 1910, difference between Mrs. Hinkley and Mrs. Stuart Hills-and the jury might very reasonably have found that Mrs. Hinkley was the one at fault at this time-greatly aggravated the strained relations. Stuart returned the Christmas presents because his wife had been overlooked, his loyalty toward his wife deeply offended his mother, and was the occasion for a cessation of family relations between the families. It was not what Mrs. Hinkley told her mother of this incident, but the fact of the return of the presents which led to the breach between mother and son. The will of January, 1911, immediately followed. Mother and son failed to greet each other when they met. Each side claims the other was at fault; but it is clear the mother believed it was her son's fault, and she grieved greatly over it. When The testimony is abundant and unimpeachable that the November will did express Mrs. Hills' wishes, and continued to express them to the last. If the jury did find that Mrs. Hinkley had 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 evidence that the opportunity was used and used for an improper purpose. and the defendant executed a note payable on demand with interest after six months and began repairing the premises on the understanding that the second mortgage should not be demanded until the repairs were made and a ment to forbear demand of interest of defendlarger first mortgage secured. Held, an agree All of the statements Mr. Hinkley is said to have made to Mrs. Hills of Stuart-and they 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 between mother and son; the son subsequent- agreement, so that his demand of interest and his action to foreclose before the expiration of the six months was premature. ly had an opportunity to explain them; two of the subjects were founded on fact; the relations between the mother and son continued until long after cordial and affectionate; and no change in her will was made until much later. Under these circumstances we regard the statements, if made, as of very little weight in tending to prove the undue influence charged. There is no reasonable basis, when all the evidence is considered, for the argument that Mrs. Hills was dependent upon Mrs. Hinkley. The character and characteristics of Mrs. Hills show the reverse to be the truth. So, too, it could not be reasonably found that Mrs. Hills was under the dominion of her daughter. She appears to have been as little likely to be a subject for undue influence as any reasoning woman, and to have possessed and retained a positive, even aggressive, and independent mind. To take up, one by one, and analyze in detail the several matters which the contestants assert furnish ground for the inference of undue influence would prolong the opinion to unseemly lengths. It is sufficient to say that we have examined the evidence with care, and are satisfied that the verdict is manifestly against its weight, and should not stand. We reach this conclusion after giving due consideration to the court's refusal to set aside this verdict, and with a full appreciation of the work of the court throughout the presentation of the evidence, and in its admirable charge to the jury. We know of no subtantial error which the record shows the trial court committed save only in its failure to set aside the verdict. There is error, the judgment is reversed, and a new trial ordered. In this opinion the other judges concurred. (88 Conn. 442) STEVENS v. RISLEY et al. (Supreme Court of Errors of Connecticut. July 13, 1914.) 1. PLEADING (§ 129*)-PLEA OR ANSWER-AD MISSIONS. In an action by the assignee of a note and mortgage to foreclose the mortgage, defendant, by not denying that the note and mortgage were given by him to another or that they had been assigned to the plaintiff or that they had been made, admitted such facts. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 270-275; Dec. Dig. § 129.*] 2. MORTGAGES (§ 423*)-TIME TO FORECLOSE. Defendant purchased an equity of redemption in property which he was to repair, and the seller agreed to release a second mortgage [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1262; Dec. Dig. § 423.*] County; Joseph P. Tuttle, Judge. Action by Edward E. Stevens against Joseph Risley and another. Judgment for defendants, and plaintiff brings error. Writ of error dismissed. George E. Beers, of New Haven, and L. Russell Carter, of Waterbury, for plaintiff in error. Walter J. Walsh and Charles J. Martin, both of New Haven, for defendants in error. THAYER, J. [1] The plaintiff in error, as assignee of a note and mortgage given by the defendant in error to one Cables, brought his action to the superior court to foreclose the mortgage. It was not denied upon the trial that the note and mortgage were given by the defendant to Cables, or that they had been assigned to the plaintiff, or that they had not been paid. Admitting by not denying these facts, the defendant as a second defense alleged that the plaintiff had received the interest on the mortgage note to a date subsequent to the date of bringing the action for foreclosure without reserving the right to bring suit upon the note prior to the date to which interest was paid, and also that the plaintiff took the assignment with full knowledge of an agreement, which appears in the record, between the defendant and Cables, the mortgagee, and that the defendant was at work carrying out the agreement at the time the suit was brought. The reply admitted that the plaintiff had knowledge of the agreement at the time he purchased the assignment. The agreement, of the same date as the note and mortgage, provides that: If Risley "shall overhaul the Grand avenue property, this day deeded by Cables to Risley, converting the main building situated on said Grand avenue, at the corner of South Front street, in said New Haven, converting to consist of putting the stores in order, and making tenement rooms on second and third floors, and generally repairing what is necessary in both buildings to make them rentable, that he, the said Cables will, assist the said Risley to obtain credit for some of the material for the second mortgage so that a larger first mortsaid repairs when necessary, and to release the gage can be obtained on said premises, Risley to receive up to $2,500 of the increase of the first mortgage, and the balance of the said increase to be applied to his credit on the second mortgage, Cables to pay the interest on first mort For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. 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