GILBERT vs. GILBERT, 22 Ala. 529

GOLDTH WAITE, J. Tbe ruling of the court below in refusing to allow the plaintiff in error to become a witness to sustain the validity of the will, was correct. He was incompetent, not because he was named as executor, but for the reason that he was the proponent of the will. He offered it for probate, and in the coniest which arose in relation to its validity, occupied the position of the plaintiff in the suit. If the issue was determined against him, under the operation of the statute, (Clay’s Dig. 316, § 26,) he was responsible for costs.

His renouncing as executor could have had no effect in exonerating him from this liability, for the reason that he would still have remained the proponent, and the liability for - costs attached to him in that capacity. The declarations of the son at the time he was met by the testator, in the road, going from the house of his grandmother, were, however, improperly admitted, as the act which the declarations were offered to explain would not itself have been evidence; and this testimony derived no support whatever from the subsequent declarations of the grand-mother in relation to the same matter.

She was a competent witness, and her declarations to explain a previous act could not, under any circumstances, have been received, unless so immediately succeeding it as to become part of the res gestee. To determine correctly the questions which arise upon the admissions of the other portions of the evidence which were received against the objections of the proponent, it may be necessary to consider the character of the issue which the testimony was offered to support.

The question was, whether the will was obtained by undue influence; and undue influence, legally speaking, must be such as, in some measure, destroys the free agency of the testator; it must be sufficient to prevent the exercise of that discretion which the law requires in relation to every testamentary disposition.

It is hot enough that the testator is dissuaded by solicitations or argument from disposing of his property as he had previously intended; he may yield to the persuasions of affection or attachment, and allow their sway to be exerted over his mind; and in neither of these cases, would the law regard the influence as undue. To amount to this, it must be equivalent to moral coercion' — it must constrain its subject to do what is against bis will, but which from fear, the desire of peace, or some other feeling, he is unable to resist; and when this is so, the act which is the result of that influence, is vitiated.

Small v. Small, 4 Green. 220; Mountain v. Bennett, 1 Cox 355; Woodward v. James, 3 Strobh. 552; Potts v. House, 6 Geo. 324; Kinleside v. Harrison, 2 Phil. 449. It will be readily seen that, in order to determine whether the will is the result of influence of this character, great latitude must necessarily be given to the evidence.

The fact that the will makes an unnatural disposition of the property, the physical and mental condition of the testator at the time the influence is exerted, the relative position of the testator and the person exerting it to each other, and the motives of the latter, as deducible from interest to himself, or from affection or animosity to others, may all be circumstances proper to be taken into consideration, in the determination of this issue. Applying these principles to the other portions of the evidence which were excepted to, we have but little difficulty in arriving at a correct conclusion.

The declarations of the testator made before the will, in favor of the contestant, were competent, (Smith v. Fenner, 1 Gal. 170; Roberts v. Trawick, 13 Ala. 68;) and upon the same principle, the acts and declarations of the testator before the will, and his expressions at the time of its execution, tending to show a father’s feeling and affection towards a child for whom the will made no provision. All evidence of this character was legitimate, and was correctly admitted.

So, also, acts of officious intermeddling, harrassing and annoying to a dying man, or evincing a purpose to hurry him on to the act, without giving him time to deliberate. While on the other hand, testimony showing that two of the relatives of the decedent, who lived and were acquainted in the neighborhood, had not heard of the will until a short time before the same was offered for probate, could not properly be taken into consideration, either as tending to show that undue influence had been exerted, or that no such will was in fact made. This evidence, therefore, should not have been received.

The refusal of the court to hear the evidence in relation to the declarations of the grand-mother of the contestant, was in all respects proper. As we have already said, she was a competent witness, and her own declarations as to her feelings towards the contestant, not in any way forming • part of the res gesto, should not have been received. If, however, the testimony had been legal, as it appears from the bill of exceptions that the evidence on both sides had closed, its admission would have been purely a matter of discretion in the court below, and not revisable here’.

For the errors we have referred to, the judgment is reversed and the cause remanded.