William Burnham Woods

“ The charge that Nailor was intoxicated when the deeds were executed is without support in the evidence. So far, therefore, as it concerns the deed executed on November 27, 1872, the case must fail for want of proof; for if Nailor was then competent to make a deed when sober, the plaintiffs, to succeed in overthrowing that conveyance, must show that when he executed it he was not sober, and this they have not attempted to do. In respect to the three deeds of March 29, 1878, the proof of sobriety and mental capacity of Nailor when he executed them is positive and satisfactory. ”

“ Much of the real estate which he owned in the city of Washington he let to be used as houses of ill fame and for sale by retail of spiritous liquors. For many years prior to 1869, and at least as early as the year 1854, he had led a dissolute and intemperate life. In 1869 he made the acquaintance of the defendant, who was then about 21 years of age. There is no averment or proof that prior to that time she was not a virtuous woman. In November or December of that year Nailor left his family, took up his residence with the defendant, and lived with her in concubinage until his death. ”

“ On the contrary, the deeds recite a valuable consideration, and the averment of the bill is flatly denied by the answer of the defendant made under oath. The answer, though not called for under oath, is evidence in behalf of the defendant; for if a plaintiff in equity is unwilling that the answer should be evidence against him, he must expressly waive the oath of the defendant in his bill. ”

“ That degree, therefore, of importunity or undue influence which deprives a testator of his free agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act, is sufficient to invalidate it.' Tested by these rules, the charge that the deeds in question were procured by the fraud and undue influence of the defendant is without support. On this branch of the case the plaintiffs have taken pains to prove that the defendant treated Nailor with great kindness, and with unremitting attention to his wants and comforts ”

“ It may be either through threats or fraud, but, however, exercised, it must, in order to avoid a will, destroy the free agency of the testator at the time when the instrument is made.' The rule upon this subject was thus stated in Davis v. Calvert, 5 Gill. & J. 302: 'A testator shall enjoy full liberty and freedom in the making of his will, and possess the power to withstand all contradiction and control. ”