Alexander v. Alexander
| Decision Date | 26 October 1922 |
| Docket Number | 8 Div. 363. |
| Citation | 208 Ala. 291,94 So. 53 |
| Parties | ALEXANDER v. ALEXANDER. |
| Court | Alabama Supreme Court |
Appeal from Probate Court, Lawrence County; J. E. Kumpe, Judge.
Proceeding by W. A. Alexander to probate the last will and testament of L. A. Alexander, deceased, with contest by Myrtle Alexander. From a judgment denying probate proponent appeals. Reversed and remanded.
G. O Chenault, of Albany, for appellant.
William L. Chenault, of Russellville, for appellee.
Appellant propounded for probate a paper writing purporting to the last will and testament of L. A. Alexander, deceased, wherein he was named as sole beneficiary and executor. Appellee's contest was framed in several aspects, but the course of the trial indicated very clearly contestant's contention to be twofold; that deceased had not executed the paper; and that its execution had resulted from undue influence exercised by proponent. Jury and verdict went for contestant and from the judgment denying probate proponent has appealed.
There is no need to consider in detail the several assignments of error since the court is clear to the conclusion that the evidence offered to sustain the two aspects of appellee's contest was wholly insufficient to that end and should not have been allowed to prevail against proponent's motion for a venire de novo.
The evidence of the two witnesses to the will was direct positive, and unclouded, save by some testimony tending to show vagrant general statements by testator to the effect that he did not intend ever to make a will, but would let the law dispose of his estate, and some dubiously established expressions on the part of proponent after the death of deceased, indicating his lack of knowledge that deceased had disposed of his property by will, or even, it may be conceded, that he intended to deny the existence of a will. The evidence, besides being clear to the effect already stated, discloses ample reason why deceased should have made just the will in dispute, and the court is of opinion that the verdict should not have been allowed to stand.
As for the other ground of contest, viz, that the will was the result of undue influence, proponent was entitled to the general charge. Let it be assumed for the argument that there was some evidence of confidential relations in fact between testator and proponent, and that proponent exercised in general a dominating influence over testator, there...
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...... charge 1 and the oral charge. Ritchey v. Jones et. al., 210 Ala. 204, 97 So. 736; Alexander v. Alexander, 208 Ala. 291, 94 So. 53; Scarbrough et. al. v. Scarbrough et al., 185 Ala. 468, 64 So. 105. See. given charges 1, 2, 15, and 23. . ......
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