In re Estate of Cunningham

argued that the Court should have left the facts to the J ury.

J. G. Severance and J. F. Sullivan, for the Respondent.

One of the questions submitted to the J ury was as follows: “ Was the execution of this will” (meaning the will filed July, *466 18T6) “ obtained by undue influence ? ” This will was executed, if at all, April 29th, 1874, and there was evidence to the effect that the testatrix was unfit to transact business when under the influence of liquor, and that she was “ on a spree ” and scarcely drew a sober breath during the last three weeks of April, 1874. Under these circumstances the Court below first instructed the J ury that they should find that the will was not obtained by undue influence. The circumstance, if true, that the testatrix was in this condition when she executed the will was pertinent evidence, in connection with other circumstances in proof upon the question of undue influence; inasmuch as a person in that condition might be more readily influenced than if sober at the time. In this view the instruction as given was erroneous.

Subsequently the Court instructed the Jury that the question of “ undue influence, menace, duress, and fraud ” in the…