Arrington v. Working Woman's Home

• Decision Date: 23 February 1979
• Parties: Robert P. ARRINGTON et al. v. WORKING WOMAN'S HOME et al. 77-680.
• Court: Alabama Supreme Court

Page 851

368 So.2d 851

Robert P. ARRINGTON et al. v. WORKING WOMAN'S HOME et al.

77-680.

Supreme Court of Alabama.

Feb. 23, 1979.

Rehearing Denied March 23, 1979.

J. Paul Lowery, Montgomery, for appellants.

William I. Hill, II, Montgomery, for appellee, Working Woman's Home.

Robert A. Huffaker, Montgomery, for appellees, Miss Sylvia T. Bauer, Mary Ethel Williamson Gross, Mary Whetstone Williamson, William A. Williamson, Jr., and the Alabama National Bank.

M. R. Nachman, Jr. and Walter R. Byars, for Steiner, Crum & Baker, Montgomery, for appellees, Ernest E. Armstrong and Montgomery Museum of Fine Arts.

BLOODWORTH, Justice.

Contestants in a will contest appeal from summary judgments granted the proponents. We affirm.

The testator, William P. Arrington, executed the will in contest on July 14, 1966, and the codicil in contest on September 14, 1966. Testator was an only child, his parents predeceased him, and he had never married. He died on June 7, 1977, and the will and codicil were admitted to probate on July 19, 1977. This contest then followed.

Contestants are all of testator's first cousins on his father's side of the family (Arringtons), including two who are beneficiaries under the will. Proponents are his two first cousins on his mother's side of the family (Pelzers); two children of one of these cousins; a Mrs. Bauer, who was testator's 85-year-old nurse and housekeeper; Alabama National Bank (executor and co-trustee); testator's butler-chauffeur; Ernest Armstrong, testator's friend and financial advisor (beneficiary and co-trustee); and several charities. All of the proponents except Alabama National Bank are beneficiaries under the will.

The will provides for certain specific bequests and cash gifts. The remainder of the estate is then placed in trust, with Alabama National Bank and Ernest Armstrong as co-trustees, income to be distributed in equal parts to Mrs. Bauer and Mr. Armstrong during their lives, with the survivor receiving all of the income for the remainder of his or her life. At the death of the survivor, the trust is to terminate and the property is to be distributed as follows: certain stock to the two children of one of the Pelzer first cousins; $100,000 each to Archie and Alfred Goldthwaite, first cousins on the Arrington side of the family and contestants; $100,000 each to five charitable organizations; and the remainder to the two children of one of the Pelzer cousins.

The codicil devised some real estate to Armstrong and cancelled all debts owed to the testator, including $40,000 owed by Armstrong.

In their petition for contest, the Arrington cousins alleged as grounds (1) defective execution; (2) undue influence; (3) fraud; (4) duress and coercion; and (5) unsound mind. The contestants have abandoned grounds (1) and (5), stating that they have no facts to support these two grounds.

Proponents filed motions for summary judgment, supported by depositions of five of the contestants, pleadings and exhibits filed with the pleadings, interrogatories to the contestants and their attorney, and depositions of other persons. Contestants were given two extensions of time in which to respond to the motions, and submitted Armstrong's divorce proceedings, Armstrong's deposition, and several affidavits. The trial court granted summary judgments in favor of all proponents, upholding the will and codicil in their entirety.

The contestants argue on appeal that summary judgment was inappropriate because there is a scintilla of evidence which creates a question of fact regarding undue influence, fraud, and duress. Even judging the appropriateness of summary judgment by the standard of the scintilla rule, however, we must agree with the proponents that there are no genuine issues as to any material facts and that, therefore, the proponents are entitled to judgment as a matter of law.

In the petition for contest, the grounds of undue influence and fraud are specifically directed toward Armstrong. It is apparent from the depositions and other evidence that the charge of duress is also directed toward Armstrong and those portions of the will and codicil which benefit him. Therefore, we need go no further in order to affirm the summary judgments in favor of all those proponents except Armstrong, since only those portions of the will which are the result of undue influence, fraud, or duress will be set aside. Shelton v. Gordon, 252 Ala. 187, 40 So.2d 95 (1949).

Proponent Armstrong contends that his grant of summary judgment is also due to be affirmed. In order for him to prevail, he must show that there is no genuine issue of material fact and that the contestants have failed to present a scintilla of evidence to support their position. See Mims v. Louisville Title Insurance Co., 358 So.2d 1028 (Ala.1978).

The evidence in support of Armstrong's motion for summary judgment discloses that he had no knowledge of the will or the codicil until after they were executed, that he did not participate in their preparation or execution, and that he made no threats or other attempts to coerce or defraud the testator. Unless the contestants' evidence establishes some question of fact regarding these matters, Armstrong's summary judgment should be affirmed.

We would unduly lengthen this opinion to give a detailed recitation of the testimony presented by contestants and proponents in their respective efforts to oppose and to uphold...