Adair v. Craig

• Decision Date: 11 February 1902
• Citation: 33 So. 902,135 Ala. 332
• Parties: ADAIR ET AL. v. CRAIG ET AL. [a1]
• Court: Alabama Supreme Court

33 So. 902

135 Ala. 332

ADAIR ET AL. v. CRAIG ET AL. ^[a1]

Supreme Court of Alabama

February 11, 1902

Appeal from Chancery Court, Tallapoosa County; Richard B. Kelly Chancellor.

Bill in chancery by George B. Adair and another against Virginia A Craig and another. From a decree dismissing the bill complainants appeal. Affirmed.

J. A Terrell and J. M. Chilton, for appellants.

Thos. L. Bulger and Sorrell & Sorrell, for appellees.

The following authorities clearly show the said instrument to be a deed and not a will: Griffith v. Marsh, 86 Ala. 302, 5 So. 569; Sharp v. Hall, 86 Ala. 110, 5 So. 497, 11 Am. St. Rep. 28; Jordan v. Jordan's Adm'r, 65 Ala. 301; Hall v. Burkham, 59 Ala. 349; Golding v. Golding's Adm'r, 24 Ala. 122; Elmore v. Mustin, 28 Ala. 309; Abney v. Moore, 106 Ala. 131, 18 So. 60; Crocker v. Smith, 94 Ala. 295, 10 So. 258, 16 L. R. A. 576.

SHARPE J.

By their bill complainants seek the cancellation of a conveyance of lands executed July 5, 1888, by their ancestor, Margaret Craig, who died in September, 1899, to her son, Samuel Craig, and his wife, Virginia A. Craig. Samuel Craig died about July 7, 1888, and complainants, as heirs of Margaret Craig, claim a half interest in the lands as against Samuel Craig's widow and heirs. The bill avers "said instrument is posthumous in its character, and cannot operate as a deed, and, not having two attesting witnesses, does not have the effect of a will, and therefore is void; yet orators aver that it is a cloud upon their joint title to an undivided half interest therein." The instrument is in form a conveyance of a fee-simple title using words importing a present transfer of title and the statutory warranty, reserving to the grantor no power to defeat or jeopardize the same, but only a right to use the land for her own benefit during her life. Characterized by these features, the instrument is not a will, but a deed. See Whitten v. McFall, 122 Ala. 619, 26 So. 131, and other authorities cited in briefs for appellees.

It is alleged in the bill that the instrument "was obtained by fraud and undue influence exercised by the said grantees named in said deed." It is also alleged, in substance that Samuel Craig was the grantor's agent in the conduct of her business, and that she reposed in him great confidence, and also, about 10 days before his death, "he visited his mother, and, as orators are informed, requested his mother, the said Margaret Craig, to make him a deed to all of her property, and that she refused to do the same, and that on his return home that day he was stricken down with paralysis, and from which time he was unconscious up to the time he died, on the 7th day of July, 1888." It is further alleged, in substance, that on the 5th of July the respondent Virginia A. Craig sent for the grantor, and employed a lawyer, who prepared the deed in question, and induced her to sign it, without reading it to her, or advising her of its contents; and that the grantor was at that time so mentally infirm that she did not understand the character and import of the instrument. These averments are put in issue by the answer. It may be assumed as a proven fact that prior to his last illness Samuel Craig was the manager of the grantor's business, and that as such manager, as well as by reason of his blood relationship, he stood in a confidential relation to her. But there is no legal evidence to show he ever used any influence acquired by that relation to procure the execution of the conveyance. To prove he requested the grantor to make the deed, there was offered in evidence only declarations of the grantor, made after the full execution of the deed. These subsequent declarations are not evidence which can be looked to for the...