" (Italics supplied.) To the same effect are Powell v. Weld, 410 Ill. 198, 101 N.E.2d 581; Cunningham v. Dorwart, 317 Ill. 451, 148 N.E. 314. In Swaringen v. Swanstrom, 67 Idaho 245, 175 P.2d 692, it was held the evidence that beneficiary of a will had been attorney for testator for ten years did not establish undue influence in the absence of evidence disclosing any pressure or urging by the beneficiary on testator to effect a will in beneficiary's favor.
The presumption of undue influence arises not from the fact of the fiduciary relation, but from the participation of the fiduciary in procuring the execution of the will. Powell v. Bechtel, 340 Ill. 330; Cunningham v. Dorwart, 317 Ill. 451. A careful examination of all of the evidence fails to disclose any proof that Mary Weld caused the will to be prepared or was instrumental in its preparation to such extent that the giving of the requested instruction could be justified.
William Y. receives no greater share in the estate than his three sisters and his brother Gordon R. The undue influence which will void a will must be such as to deprive a testator of free agency. ( Grosh v. Acom, 325 Ill. 474; Cunningham v. Dorwart, 317 id. 451.) The undue influence which will invalidate a will must be directly connected with the execution of the instrument, be operating when the will was made, and thereby prevent the testator from exercising his own wish and will in the disposition of his estate.
Undue influence which justifies setting aside a will must be such as to deprive the testator of his free agency. It must be such as to destroy the freedom of his purpose and render the instrument more the will of another than of his own. It must be directly connected with the execution of the will and must operate at the time the will was made, producing a perversion of the testator's mind. Advice or persuasion will not vitiate a will freely and understandingly made. ( Flanigon v. Smith, 337 Ill. 572; Pollock v. Pollock, 328 id. 179; Grosh v. Acom, 325 id. 474; Jones v. Worth, 319 id. 235; Cunningham v. Dorwart, 317 id. 451.) Evidence merely tending to prove a fiduciary relation is not sufficient to entitle a contestant to have the matter of undue influence submitted to the jury.
The influence resulting from love or affection which does not seek to control the will of the testator is not undue influence. ( Pollock v. Pollock, 328 Ill. 179; Grosh v. Acom, 325 id. 474; Jones v. Worth, 319 id. 235; Cunningham v. Dorwart, 317 id. 451.) No presumption arises from the existence of a fiduciary relation that a will in favor of a fiduciary was executed as the result of the fiduciary's undue influence unless the person who occupied the confidential relation prepared the will or participated in the preparation and execution of it, in which case the burden is upon him to show that the execution of the will was the free and voluntary act of the testator.
The influence resulting from love and affection, which does not seek to control the will of the testator, is not undue influence. ( Grosh v. Acom, 325 Ill. 474; Cunningham v. Dorwart, 317 id. 451; Waterman v. Hall, 291 id. 304; Farmer v. Davis, 289 id. 392; Larabee v. Larabee, 240 id. 576; Snell v. Weldon, 239 id. 279; Kimball v. Cuddy, 117 id. 213; Rutherford v. Morris, 77 id. 397.) In the present case there is a total failure of evidence on the issue of undue influence, and the court was justified in withdrawing that issue from the jury's consideration.
The mere fact that a child is living with a parent does not establish a fiduciary relationship and the influence which is charged must be shown to have existed and was directly operative at the time of the execution of the instrument. A case somewhat similar to the one at bar is that of Cunningham v. Dorwart, 317 Ill. 451, wherein at page 452 it is stated: "Proponent, George F. Dorwart, and his sister, the testatrix, had for thirty or more years prior to the time the will was made, conducted a grocery store in Jacksonville, Illinois, as equal partners. For a long time they lived in the upper story of the building their grocery store was conducted in.