This is the contest of a will. The testator died suddenly, while traveling in the east, June 5, 1895. The proponent, with the exception of two trifling bequests, is the sole beneficiary and appellant. She claims to have been the wife of the testator; but this is denied by the contestants, who claim that the relation between her and the testator was illicit. The contest was tried with the aid of a jury, to whom several questions were propounded, and the verdict was approved by the court, and judgment therein entered for the contestants.

*309 The jury found as follows:

After finding facts showing that the will was wholly written and signed by the testator, and also its proper execution as a will duly witnessed, the verdict continues as follows:

In the contest it was charged: 1. At the time of the execution of the will deceased was of unsound mind; 2. Deceased had been habitually intemperate, and his reason thereby unseated; 3. The will was not properly executed; 4. The will was executed through the undue influence of proponent, and, under this head, is specified: (a) The proponent cohabited with the deceased for many years, but was not his wife; (b) While so. living with him, she poisoned his mind as to con *310 testants, who were his sisters, by falsely asserting that they were inimical to him, and they were intent on exposing the relations between deceased and the proponent; that deceased believed these assertions, and was laboring under the delusion that they were true, but they were false; (c) Proponent took advantage of the unlawful relations and the confidence of the deceased, and caused him to make the will in question; (d) Proponent obtained such control over deceased while he was intoxicated as to unduly influence him; (e) Through such false assertions, and by reason of his weak mental condition, deceased was made to believe by proponent that the contestants were attempting to get the control of his property, and injure his business, and deprive him of his property, and by reason of the misrepresentations and fraud the testator was induced to make the alleged will.

All these allegations of fraud and undue influence were denied by the proponent.

The appeal is from an order denying a new trial. Many rulings of the court are objected to, and it is claimed that the evidence was insufficient to sustain the findings which are adverse to the appellant.

The proponent testified that she was married to the testator by contract, and that the contract was in writing, and read as follows: “Dated October 5,1883. We, the undersigned, hereby agree to be husband and wife. Signed, Louis J. Ruffino, Kate L. Staufer.” She also testified that they entered upon the marital relation in July or August, 1884. Upon this subject the court instructed the jury as follows:

This instruction was objected to, and I think it was erroneous in several respects: 1. In the first place section 76 of the Civil Code had no real bearing upon any issue in this case. It was not claimed that the document sworn to by proponent was intended to be the declaration provided for in section 76, and no such declaration was required. A jury could only have understood the instruction as meaning that when there is no solemnization this declaration must be made, or the marriage is void. Such is not the law, and the jury must have been misled. There was no occasion for any explanation of section 76, because compliance or noncompliance with it was wholly immaterial.

2. It was also error to tell the jury that they were not allowed to presume from the fact that long subsequent to the contract the parties cohabited as husband and wife, that such cohabitation was under a new contract. There was evidence tending to prove, and the jury found, that there had been no unlawful relation between the parties prior to the alleged assumption of marital rights and duties in 1884. At that time they commenced living together as husband and wife. They always represented that they were married, and were universally so regarded by their acquaintances. Under such circumstances there is a very strong presumption of marriage. Having held themselves out as husband ami wife, and having lived together as only married persons could lawfully do, this presumption, which prevails everywhere, of 'marriage, is especially strong here where marriage may be constituted by consent and subsequent assumption of marital rights and duties, and where such consent and assumption may be manifested in any form, and may be proved under the same general rules of evidence as facts in other *313 cases. (Civ. Code, sec. 57.) All intercourse in form matrimonial is presumed, until the contrary is shown, to be matrimonial.

But I think there is an implication in this instruction still more injurious to appellant. It is that the assumption of marital rights must be immediate, or, as counsel say, within a reasonable time after the contract constituting consent. There is nothing of the kind in the statute, and no authority for the proposition is cited. Of course there must be a contract for a present marriage. That is, the parties must stipulate that they are now husband and wife, and not that they will at some future day become such. But if at any length of time thereafter they assume the rights and duties of the marital relation, both understanding and intending thereby to consummate the marriage contract, it will be a lawful marriage under the statute. And it is not necessary to hold that consent is manifested only by the former contract. The very assumption of the relation, with the intention of executing such a contract, would of itself constitute the consent which is requisite, and the former contract would tend to characterize the act of the parties in the assumption of the relation, and complete the evidence of a present consent which need not be in writing. Perhaps we cannot go so far under our statute as some of the Scotch authorities, which hold that cohabitation and repute themselves prove a tacit consent which constitutes a lawful marriage, for it may be that evidence would be admissible to show nevertheless that the parties did not intend marriage; that is, that there was no consent to marriage. But where both parties do intend marriage, and assume the rights and duties of the relation in the face of the world, I do not see why it is not a legal marriage. Surely the mere assumption of the rights, duties, and obligations of the marital relation with the intention thereby to be married is as clear an indication of consent as there could be.

The next paragraph in the instruction, that marriage *314 is not proven by the declaration of the woman that it was agreed between her and the man, that they were to live together, was not justified by any evidence or by the contention of the proponent. The transcript does not show any such evidence, and it is a most injurious misstatement of the position of the proponent. It was a plain intimation that she had no other foundation for her claim of marriage, whereas the evidence shows without controversy that she based her claim upon a contract of marriage, followed by a mutual and public assumption of the rights, duties, and obligations of that relation.

The part of the instruction which has been most discussed by counsel is to the effect that the law prescribes that no one shall profit by an unlawful relation, and that the influence of an unlawful relation is unlawful, and, if the proponent was not married and exercised any influence over the deceased, it was unlawful. Taken by itself this part of the instruction is unintelligible. Taken in connection with the facts of the case, however, it could only mean one thing, to wit: If the proponent was not married to the deceased, and he was induced by the illicit relation to make his will in her favor, it was unlawful and the will void; and, further, if she exercised any influence as to the will, such influence was unlawful and rendered the will void. There was no issue in the case as to any unlawful influence other than undue influence. And in this instruction the phrase seems to be used as though it was something other than undue influence—as though, like an illegal consideration, it rendered void everything that could flow from it, and without reference to the degree of it, or whether it had the effect of subjecting and controlling the will of the testator, or not. And so I have no doubt the jury understood it. While I cannot doubt that the jury must have understood the instruction as above, I do not think the learned trial judge intended to so instruct the jury. The intention undoubtedly was to follow the line of decision commencing with Dean v. *315 Negley, 41 Pa. St. 312, 80 Am. Dec. 620 . That was a contest of a will, and in that case it appeared that the testator was taken from his family by an adulteress, and when weakened by disease was made to execute a will in favor of the adulteress. The court, after quoting a few Latin maxims, such as ex turpi causa non oritur actio, says they may all be summed up in one sentence. “ No one shall derive any profit through the law by the influence of an unlawful act or relation.” The court then proceeds to say: “ The ordinary influence of a lawful relation must be lawful, even where it affects testamentary dispositions, for this is its natural tendency. The natural and ordinary influence of an unlawful relation must be unlawful, in so far as it affects testamentary dispositions favorably to the unlawful relation, and unfavorably to the lawful heirs.”

Here, too, the word “ unlawful ” is used and naturally produces great confusion. But in this opinion the unlawful influence is plainly put upon the same plane as an unlawful consideration, from which no action can arise. Therefore such influence is unlawful, whether it has destroyed the free will of the testator or not. Under this rule there could be no valid bequest to one who has had illicit relations with the testator, if it was induced by the relation. If one had seduced a woman theretofore virtuous, he could neither provide for her or her offspring by Ins will, for such bequest would be induced by the natural and ordinary influence of the relation, although not by any actual attempt to influence the testator by the beneficiary. The case of Dean v. Negley, supra, has been followed in Ohio, Iowa, and in several cases, but in each case the facts were such as would have warranted a finding of undue influence, as well as of unlawful influence in the sense in which the phrase is used in that case; and certainly if this unlawful influence must be such as has deprived the testator of his free will, there is no room for this strange doctrine. The question, in the absence of *316 fraud, always is whether the proposed will is the spontaneous act of a competent testator. If not, it makes no difference what the moral qualities of the influence may be which has overcome the will of the testator. If the importunities of a wife have destroyed the free will of a testator, the will is void. If the importunities of a mistress have not overcome the will of a testator, the will is not void, though made in favor of the mistress. Influence which has prevented an unnatural, an unjust, and a vicious will, by overcoming and controlling the testator to the extent that the will is not the spontaneous act of the testator, is unlawful—as much so as the same influence would be if exerted in the opposite direction. The question is as to the effect of the influence upon the testator’s mind, not as to its moral character or its source, although in some cases the character of the person exerting the influence may be an important factor in determining its effect.

I do not see how a will can be said to be unnatural which is in favor of a person for whom a sane testator entertained a strong affection. That a will is what would be called undutiful is only material when the circumstances are such as to show that the testator, if uninfluenced, would most likely have made what is called a dutiful will.

The line of authorities alluded to have not been generally followed. The cases upon the subject are collected in a note to the case In re Hess’ Will, 31 Am. St. Rep. 665 , and this opinion need not be extended by a citation and discussion of them. The remark in In re Flint, 100 Cal. 391 , is obiter.

There is no evidence in the record to show of what the estate consisted, or its value, but it seems that a portion of it consisted of property which the testator’s sisters, contestants here, conveyed indirectly to him, without consideration, to give him the necessary credit to enable him to carry on business. At the time the conveyance was made there was no understanding as to *317 a reconveyance. The appellant objected to evidence of these facts as immaterial. I think, however, that the court properly admitted the evidence. If some of the property morally belonged to the contestants, and was really only loaned to their brother through their affection for him, such fact would make the will seem more unnatural, and, although it would not prove undue influence, it would be a proper circumstance to be considered in connection with other facts tending to prove such influence.

Appellant objects to the finding as to delusion, on the ground that the contest does not aver that the testator was subject to any insane delusion, and also on the ground that no insane delusion is found to have existed. I think this contention must be sustained. A mere mistake on such a subject will not invalidate a will. No will would be past attack, if it could be set aside merely upon the testimony of interested parties that the testator believed the heir hostile to him, and that such was not the case. The jury found that the testator was not insane.

There is also no evidence of an insane delusion. The allegation is that proponent persuaded testator that his sisters were hostile to him, and that they would expose their relations—the relations existing between the proponent and the testator—and interfere with his property, and injure his business. The evidence shows that the testator had long been very hostile to his sisters, but beyond that there is no evidence whatever that he thought his sisters hostile to him. It is not shown that proponent ever spoke an unkind word with regard to the sisters, but, to the contrary, that she always sided with the sisters in their controversy with their brother. The contestants themselves seemed to have believed that the proponent and the testator were actually married. There is not a syllable of testimony tending to show that the testator thought they intended to expose the relation, or that he ever doubted that he was lawfully married to the proponent. These facts, how *318 ever, would constitute fraud if they existed, and the jury found that there was no fraud.

The order is reversed and the cause remanded.

McFarland, J., and Henshaw, J., concurred.