Abrams v. Abrams

• Decision Date: 08 December 1932
• Docket Number: 5 Div. 115.
• Citation: 225 Ala. 622,144 So. 828
• Parties: ABRAMS v. ABRAMS ET AL.
• Court: Alabama Supreme Court

144 So. 828

225 Ala. 622

ABRAMS v. ABRAMS ET AL.

5 Div. 115.

Supreme Court of Alabama

December 8, 1932

Appeal from Circuit Court, Chilton County; Geo. F. Smoot, Judge.

Bill to cancel deeds by Julia A. Abrams against M. M. Abrams and others. From a decree dismissing the bill, complainant appeals.

Affirmed.

J. B Atkinson and Lawrence F. Gerald, both of Clanton, for appellant.

Reynolds & Reynolds, of Clanton, for appellees.

KNIGHT J.

Bill by Julia A. Abrams against M. M. Abrams and others to declare two certain conveyances executed by J. M. Abrams null and void, upon the ground of undue influence and for partition. We say upon the ground of undue influence, for, while the bill charges that the deeds were executed "at a time when the grantor had become greatly weakened, mentally and physically, and did not know or understand the nature or consequences of the act he was about to perform," yet the only ground here seriously argued, and relied upon, is that of undue influence. Of course, the weakened condition of the grantor's mind is a pertinent fact to be considered along and in connection with the allegation and proof of undue influence. Naturally a mind in a weakened condition whether from physical infirmities or from other cause, would be more susceptible to undue influence than if there were no such impairment.

The charge that the deeds were executed at a time when the grantor had become greatly weakened, mentally and physically and did not know or understand the nature or consequences of the act he was about to perform, presented an issue as to the soundness of mind of the grantor. This charge may now, and here, as an independent ground for relief, be dismissed from further consideration, as the evidence does not support it.

The respondents M. M. Abrams, Guy W. Abrams and Effie Abrams demurred to the bill, assigning the thirty different grounds of demurrer. The demurrer was to "the bill of complaint in this cause, and to each paragraph thereof separately and severally." This, of course, was a demurrer to the bill as a whole, and not to any particular aspects of the same. National Union Fire Ins. Co. v. Lassetter, 224 Ala 649, 141 So. 645. The bill contained equity, and, under our uniform rulings, the demurrer should have been overruled, even if defective in some one of its aspects. Oden v. King et al., 216 Ala. 504, 113 So. 609, 54 A. L. R. 1413; Kelly v. Carmichael, 217 Ala. 534, 117 So. 67; Wood v. Estes, 224 Ala. 140, 139 So. 331; National Union Fire Ins. Co. v. Lassetter, 224 Ala. 649, 141 So. 645. The court by its decree sustained the demurrer to paragraph 10 and the relief prayed for thereunder, and overruled the demurrer to the remaining portion of the bill. The effect of the court's ruling was to strike section 10 from the bill, thus leaving the bill before the court in all other respects. No amendment was filed, and the cause was heard on the bill as it then stood. This was permissible. Pollak v. Stouts Mountain C. & C. Co. et al., 184 Ala. 331, 63 So. 531; Sandlin v. Anders, 210 Ala. 398, 98 So. 299.

The decree of the court in sustaining respondents' demurrer to paragraph 10 of the complaint is here assigned for error. However, for the reasons hereinafter alluded to, the error in sustaining the demurrer to paragraph 10 involved no injury to the complainant.

The court, on final submission on the pleadings and proof, dismissed complainant's bill, thereby sustaining the validity of the two deeds, which were assailed by the bill, as having been procured by undue influence, and from this decree the present appeal is prosecuted by the complainant.

The record shows that the said J. M. Abrams, late a citizen of Chilton county, died intestate in that county during the month of February, 1928, that he was then about the age of seventy-six years, and that he left surviving him as his only heirs at law and next of kin the complaint, Julia A. Abrams, M. M. Abrams, Charlie W. Abrams, and Mary A. Moseley (if living, but if not her children), who were brothers and sisters of the deceased.

The evidence shows that, for several months prior to his death, the said J. M. Abrams was a sick man, and at times suffered considerable pain. This illness dated from about November 1, 1928. At the time of the execution of the deeds in question-one to M. M. Abrams, and the other to Guy W. Abrams and his wife, Effie Abrams-the said J. M. Abrams owned one hundred ninety-two and one-half acres of land, but according to the testimony this land was of small value, and was all the land owned by him.

J. M. Abrams, for a long while prior to his death, lived alone; his wife having died some years before. During his illness, and possibly for some time prior thereto, his brother, M. M. Abrams, and the said Guy W. Abrams, who was a nephew, were the only ones of his relatives who took any interest in the said J. M. Abrams, or ministered in the least to his comfort. The complainant visited him only once or twice during his last illness, though she resided all the while within two or three miles of the deceased.

We will first address our attention to the conveyance made by the said J. M. Abrams to Guy W. and Effie Abrams, husband and wife. The recited consideration of this conveyance is "one hundred dollars to the undersigned J. M. Abrams in hand paid by Guy W. Abrams and wife Effie Abrams, the receipt whereof is acknowledged." And the deed contains this further recital of consideration, "It is understood and agreed that the said Guy W. Abrams and Effie Abrams are to care for and support the said J. M. Abrams as long as he lives." The agreement to support the grantor "as long as he lives" was a valuable consideration, and it abundantly appears from the evidence in the cause that the respondents Guy W. and Effie Abrams lived up to the letter of their agreement to care for and support the said grantor as long as he lived. He died at their home, and the evidence shows conclusively to our minds that these respondents Guy W. and Effie Abrams, along with the respondent M. M. Abrams, were the only ones of his blood relations who concerned themselves in the least about the welfare and comfort of the said J. M. Abrams.

The evidence fails to show the slightest undue influence exerted by either the said Guy W. Abrams, or by his wife, to induce their uncle to execute the deed to them. So far as the evidence shows to the contrary, it was J. M. Abrams who offered to make the conveyance, and the evidence wholly fails to show that he was moved to make the conveyance by any word or act on the part of the respondents Guy W. and Effie Abrams, or of either of them. The relation between the said Guy W. Abrams and J. M. Abrams was that of uncle and nephew and there is nothing in this relationship of itself to create a confidential relation. 12 Corpus Juris, 421; 18 Corpus Juris, 240; Noel v. Noel et al. (Ala. Sup.) 143 So. 469. Nor does the evidence show that either of the grantees in this deed had exercised dominance over the will of the grantor; nor does it appear that any fraud, artifice, or imposition was practiced upon, or any overreaching and unconscionable advantage taken of, the grantor by the said grantees to bring about the execution of the deed. We therefore conclude that the chancellor correctly decreed against...