effect to by our probate courts, though it cannot be proved that the deceased thought he was making a valid disposition of his worldly goods.

II

A joint will or a joint and mutual will may be executed in accordance with a contract between the testators to leave their property to the survivor, or to the survivor and after his death to others. Such a will is now held not against public policy. And some courts find the contract from the mere provisions of the will itself. The better view is, however, that the contract should be clearly proved by other evidence than the mere execution of such an instrument. In Lewis v. Lewis a husband and wife by a joint and mutual will left their property to the survivor, and after the death of the survivor to their children. The wife died, the husband accepted benefits under the will, remarried, and died. The children of the first marriage brought a bill to quiet title to the husband's realty which the defendant, the second wife, claimed under the Statute of Distributions. The plaintiffs secured judgment, which was affirmed by the Supreme Court on the ground that there was a contract to leave the property as directed in the will, which after the receipt of the benefit was irrevocable by the second marriage or otherwise. Assuming, which is doubtful, the existence of a contract thus to dispose of the property, the result is correct, though the reasoning is not wholly satisfactory. If there is a will made in pursuance of a contract to devise, the will is indeed revocable, but the contract should be enforced in equity. And this view represents the weight of authority and the trend of the later cases. Indeed the California court has recently held that a second marriage revokes a will made in pursuance of a contract, but the agreement to devise is enforceable in equity. This is the neater handling of the matter, for the Probate Court in the old sense did not have

5 Frazier v. Patterson, 243 Ill. 80, 90 N. E. 216 (1909).

Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265 (1898). Compare Cooke v. Burlingham, 105 Misc. 675, 173 N. Y. Supp. 614 (1919).

7 104 Kan. 269, 178 Pac. 421 (1919).

8 Professor G. P. Costigan, "Constructive Trusts," 28 HARV. L. REV. 237, 250-251; Morgan v. Sanborn, 225 N. Y. 454, 122 N. E. 696 (1919).

• Rundell v. McDonald, 182 Pac. (Cal. App.) 450 (1919). Compare, however, Chase v. Stevens, 34 Cal. App. 98, 166 Pac. 1035 (1917).

equitable powers.10 In a modern probate court which by statute has full chancery powers, however, it may be expected that the short cut will be taken of probating a revoked will made in pursuance of a contract. It does not appear from the Kansas statutes that the Court of Probate has general equitable jurisdiction."

III

The burden of establishing that a will is the act of a sane testator is upon the proponent in England and in many, but not all, of the United States.12 The proponent, however, is often aided by the rule that if the will is rational on its face and appears to be duly executed, it will be held valid in the absence of evidence to the contrary.13 The burden of proving undue influence, i. e., coercion, however, is placed generally upon the contestant. This appears clear enough from the United States decisions; 14 but the English doctrine seems not wholly settled, though probably Baron Parke's remarks,

"the onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator," 15

would there be followed.

In Spradlin v. Adams 16 the court assumes that the burden of proving sanity is on the proponent, but declares that he has discharged the burden of going forward with evidence upon showing that the paper was not irrational in its provisions.1 That the burden is upon the proponent is laid down specifically in In re Dale's Estate 18 and in Johnson v. Shaver.19 Adams v. Cooper 20 puts the matter thus:

10 27 YALE L. J. 546–547.

11 GEN. STAT. (1915), chap. 27, art. 9.

12 I JARMAN, WILLS, 6 Eng. ed., 48; 1 WOERNER, AM. LAW ADM., 2 ed., § 26. 13 Ibid.

14

I WOERNER, AM. LAW ADM., 2 ed., § 31.

15 Barry v. Butlin, 2 Moo. P. C. 480, 482 (1838). And see I JARMAN, WILLS, 6 Eng. ed., 48. But compare Parfitt v. Lawless, L. R. 2 P. & D. 482 (1872), where it seemed to be assumed that the contestant had the burden of establishing coercion.

16 182 Ky. 716, 207 S. W. 471 (1919).

17 On this latter point see Keller v. Lawson, 261 Pa. 489, 104 Atl. 678, 679 (1918); In re King's Will, 172 N. Y. Supp. 869, 872 (1918); In re Dow's Estate, 183 Pac. (Cal). 794 (1919).

18

179 Pac. (Ore.) 274 (1919).

19

172 N. W. (S. D.) 676 (1919).

20 148 Ga. 339, 343, 96 S. E. 858 (1918).

"The burden is upon the propounder . . . to make out a prima facie case by showing the factum of the will, that is, to show that [the testatrix] executed the paper in the manner the law requires wills to be executed; that at the time of its execution the testatrix apparently had sufficient mental capacity to make it, and in executing the will she acted freely and voluntarily. . . . The burden is thereby shifted to the caveators to prove the validity of the objections they have made to the probate of the will."

In Oilar v. Oilar 21 the contestant failed to sustain the burden put upon him by the court to establish the invalidity of the will and the codicil for undue influence and insanity.22 This general doctrine as to undue influence has been reaffirmed in In re Dale's Estate, supra, and in Re Fenstermacher's Estate; 23 but observe the statement to the contrary in' the extract from Adams v. Cooper, supra. A series of Illinois cases has reiterated the doctrine already enunciated in Illinois that the mere fact that a beneficiary is in a confidential relation to the testator does not shift to him the burden of proof that he did not coerce the deceased,24 and that presumption of coercion only arises when the beneficiary prepares the will.25 A person not a blood relation to the testator, but whom he treated as a sister, is not in a confidential relation to him within the meaning of this rule.26

The burden of establishing sanity and freedom from undue influence should be upon the proponent. A will, unlike a contract, is a unilateral transaction, upon which other parties do not act until the court passes upon it. It may well be said that insanity and coercion are not affirmative defenses to be alleged and proved by the heir, but must be negatived by those who insist on the will. The slight recognition of this in undue influence by Adams v. Cooper is gratifying in view of the great weight of authority to the contrary. The current decisions in general fall into the common error of failing to distinguish clearly between the burden of going forward with evidence and the burden of establishing the issue.

21 120 N. E. (Ind.) 705 (1918).

22 See accord as to insanity, Gilmore v. Griffith, 174 N. W. (Iowa) 273 (1919).

23

102 Neb. 560, 168 N. W. 101 (1918).

24 McCune v. Reynolds, 123 N. E. (Ill.) 317 (1919).

25 Wunderlich v. Buerger, 287 Ill. 440, 122 N. E. 827 (1919); Snyder v. Steele, 287 Ill. 159, 122 N. E. 520 (1919).

26 Gager v. Mathewson, 107 Atl. (Conn.) 1 (1919).

The Illinois cases on beneficiaries in a confidential relation to the testator represent a compromise between those decisions which follow the rule as to transactions inter vivos and those which reject it.27 On principle the analogy of deeds should not be followed. Such advisers are the natural objects of the testator's bounty. Each case should be dealt with on its own facts; in each the question being: has, on all the evidence, the propounder of the will sustained the burden of establishing that the deceased acted freely? The relation to the testator is merely one of the facts of more or less importance depending upon the circumstances.28

IV

Mistakes in a will conceivably might be remedied by either (a) construction or (b) reformation. By the first method the court finds that though the testator has made a mistake, the rest of the will has enough in it to express poorly yet sufficiently the testator's meaning. In all jurisdictions this power, of course, lies in the courts. By the second method the mistake might be remedied by striking out in the Probate Court, and in the court exercising similar jurisdiction, words inserted by mistake, as has occasionably been done in recent English decisions, but rarely, if at all, in the United States; or by inserting words erroneously omitted, which has never been allowed in any common-law jurisdiction.

In Stevenson v. Stevenson,29 the testator owned land in township 6 north, range 7, west of the fourth principal meridian, in Hancock County. He devised land in township seven (7) north of the base line, and range six (6) west of the fourth principal meridian, situated in the county of Hancock, which described an existing lot never owned by him. There was nothing in the will indicating that he intended to devise land he owned. The court, following Kurtz v. Hibner,30 declined to allow the lots in township 6 north to pass under the will. Three judges dissented.

A similar result on similar facts was reached in Rivard v. Rivard,31

27 See Parfitt v. Lawless, L. R. 2 P. & D. 482 (1872); Ginter v. Ginter, 79 Kan. 721, 743, 101 Pac. 634 (1909); St. Leger's Appeals, 34 Conn. 434 (1867); Morris v. Stokes, 21 Ga. 552, 575 (1857).

28 See Barry v. Butlin, 2 Moo. P. C. 480 (1838).

29 285 Ill. 486, 121 N. E. 202 (1918).

30 55 Ill. 514 (1870).

31 285 Ill. 564, 121 N. E. 212 (1918).

decided on the same day; but the contrary was held last fall in Iowa in Wilmes v. Tiernay.32 In Perkins v. O'Donald 33 the facts were the same, except that the will recited, at the beginning that the testatrix was desirous of settling her worldly affairs and of "directing how the estate with which it has pleased God" to bless her should be disposed of after her death; and under item 5 (the device in question being numbered "Item 3") she settled the "rest and residue" of her estate in trust. The court refused to allow the lot actually owned by the testatrix to pass under the will.

The case of Stevenson v. Stevenson caused Mr. H. Clay Horner to propose last spring to a committee of the Illinois Legislature the following amendment to the Chancery Act, Section 50:

'50. 'The court may hear and determine bills to construe wills, notwithstanding no trust or questions of trust, or other questions are involved therein; and in so construing wills, the court shall, in all cases, take into consideration the material facts and circumstances surrounding the testator at the time the will construed was executed, and at the time the testator died and if such facts and circumstance show that a mistake was made in writing the will, and also show the actual intent of the testator, the court may correct such mistake and give effect to the actual intent of the testator.""

He has also supported the bill in three editorials in the Illinois Law Bulletin.34 Mr. Albert M. Kales has written notes opposing it.35 The bill was later narrowed by its proposer to limit its terms strictly to descriptions of property in wills. Mr. Kales suggested as a substitute the following:

"that the court may find by implication in a will the words 'belonging to me' in connection with any description of real estate devised, provided it is satisfied from the context of the instrument, and evidence admissible under the existing rules of law, that the intent of the testator's inducement was to devise land belonging to himself."

Mr. Horner finds necessity for his legislation in the narrow doctrine of Kurtz v. Hibner, which has in effect been overruled in Illinois, and in a desire to extend to wills the jurisdiction in equity to reform transactions inter vivos, and adds that "the highest court