Bancroft v. Otis

• Decision Date: 05 November 1890
• Parties: BANKCROFT v. OTIS.
• Court: Alabama Supreme Court

8 So. 286

91 Ala. 279

BANKCROFT v. OTIS.

Supreme Court of Alabama

November 5, 1890

Appeal from probate court, Mobile county; PRICE WILLIAMS, Jr. Judge.

The appeal in this case is from the decree and rulings of the probate court, rejecting the probate of the will of William Otis, deceased, which was contested by William Otis and others, nephews and nieces of the testator.

L H. Faith and Hamiltons & Gaillard, for appellant.

G L. & H. T. Smith and Gaylord B. & Frank B. Clark, for appellee.

MCCLELLAN J.

The present appeal brings under review, inter alia, certain instructions, 13 in number, given by the judge below to the jury at the request in writing of the contestant. Of these, the first, second, twelfth, and thirteenth state substantially one and the same proposition, and will be considered together. That proposition is, in short, that if upon the contest of a will, it be shown that confidential relations existed between the proponent, he being also the principal beneficiary, and the testator, the law, without more, indulges the prima facie presumption that the testament was procured to be executed by him through the exercise of undue influence over the mind of the testator, and puts upon him the onus of rebutting this presumption by affirmative evidence that the testamentary act was not induced or produced by coercion or fraud on his part. For giving these instructions the trial judge had the very highest authority that could have obtained in the premises,-and adjudication of the supreme court of Alabama. The point was fairly presented and directly ruled in the case of Moore v. Spier, 80 Ala. 129, an opinion concurred in by the whole court. It appeared in that case that confidential relations, much of the character of those shown here between Bancroft and William Otis, deceased, existed between the proponent and principal devisee, one Spear, and the testatrix. "He was her trusted agent, having the general management of her property and business." He was related to her. He had by kindness acquired great influence over her. It did not appear that this influence was illegitimate, or that it had been unduly, or at all in fact, exercised in securing the large testamentary provisions which she made for him. Yet the court said: "Under the rule laid down by this court in Shipman v. Furniss, 69 Ala. 555, and Waddell v. Lanier, 62 Ala. 347, the burden of proof, in our opinion, was cast on the devisee, to show that the will in question was not superinduced by fraud or undue influence, but was the result of free volition on the part of the testatrix. We need not add anything more here by way of discussion to what is said in these cases, except that this rule as to the burden of proof is one of public policy, designed to prevent the abuse of certain confidential relationships, and to preserve them free from the taint of an overreaching selfishness." And, following this case, it was said in Lyons v. Campbell, 88 Ala. 469, 7 South. Rep. 250, that "whenever a confidential relation exists, such as principal and agent, during the life-time of the deceased, continuing to his death, and the agent is a favored legatee under the will, the presumption or inference is that, by improper acts or circumventions,-by the exercise of some undue influence,-the testator was induced to bestow the gift or legacy contrary to his desire and free will; and the burden of proof is cast on the legatee to show that the will was the result of his own volition and not procured by fraud or undue influence." And somewhat similar language is employed in the case of Daniel v. Hill, 52 Ala. 437, though when read in the connection in which it there occurs it can probably not be said to sustain the proposition of the charges we are considering as dicta even. It is at once apparent, therefore, that to the imputation of error to the lower court in the instructions referred to it is essential that one, at least, of the former decisions of this court must be overruled, another limited, and yet another explained. Before reaching such a conclusion, we ought, of course, to be very sure of our footing, not only on authority, but especially on reason and principle, for if the position taken by this court can find justification and support in logical deduction from recognized legal truths, it should, I apprehend, be now sustained, notwithstanding a conservative respect for the adjudged cases of other jurisdictions, and the opinions of text-writers, might incline us to another result if the question were a new one in this court.

Recurring then to Moore v. Spier, it is to be noted that the doctrine there announced is made to rest on the cases of Shipman v Furniss and Waddell v. Lanier. An examination of those cases discloses that each of them involves a contract and not a will,-a transaction between living persons by which, while both are in esse, one claims some advantage of the other, and not a transaction out of which property is received by one as a gift on the death of the other. Those cases are authority for the doctrine of Moore v. Spier, therefore, only on the assumption that the same rule in this respect applies to devises, bequests, and wills as obtains in regard to gifts, conveyances, and contracts inter vivos. The same may be said of that part of the opinion in Lyons v. Campbell which is quoted above, so far as it is rested on Shipman v. Furniss and Waddell v. Lanier. And, moreover, it is to be noted that in Lyons v. Campbell the decision turned, not upon the existence of confidential relations alone, but in connection with the further facts that the proponent was not only active in procuring the will to be written, but gave the directions as to its contents to his own son who wrote it, and induced its execution by fraudulent misrepresentations as to the value of the residuary estate which was bequeathed and devised to him, so that the language quoted from that case was essentially a mere dictum, and gives no additional force to the opinion in Moore v. Spier. Similarly, what is said in Daniel v. Hill, apparently in line with Moore v. Spier, is not so when reference is had to the facts of the case; and that part of the opinion relied on is read in connection with that which precedes and follows it. There is no other case in Alabama which, either in the terms of the opinion, or in the matter decided, can be construed or contorted into support of the proposition that confidential relations alone infect a will with the taint of prima facie in validity, and shift the burden of proving that it is the result of the testator's free agency on the proponent. In other jurisdictions we find but two adjudged cases which in any degree support that doctrine. One of these is St. Leger's Appeal, 34 Conn. 434, 450, which contains a dictum to the effect that "the law presumes undue influence from confidential relations between the testator and principal legatees or devisees, and that the burden is upon them to show by satisfactory proof that such presumed influence did not in fact, or in any degree, induce" the making of the will in their favor. The other is the case of Meek v. Perry, 36 Miss. 190, in which it was held by a divided court "that the principles of law which protect the interests of wards in transactions with their guardians extend to wills made by them in favor of their guardian; and hence a testament made by a ward in favor of his guardian will be held void for want of capacity in the ward, unless the legal presumption is rebutted by proof." On the other hand, the authorities to the converse of the proposition declared in Moore v. Spier as to wills, and embodied in the charges under consideration, are almost too numerous to be cited. The position taken by them is that the reasons of the rule which impute undue influence to confidential relations in respect of contracts and transactions inter vivos do not apply to wills, and that, before testamentary disposition can be presumed to have been unduly influenced, something in addition to the mere existence of confidential relations must be shown, as that the proponent initiated the preparation of the instrument, or wrote it himself, or gave directions as to its contents to the draughtsman, or selected the witnesses to be present at its execution, and the like; or, in short, that the beneficiary, whose interest under the paper is attacked, was, as matter of fact,-aside from mere presumption of law,-active in respect to, or in some way connected with, the preparation and execution of the alleged will. According to this line of authority, confidential relations, coupled with some act done in the premises, raise the presumption of undue influence against the proponent in a case like the present one, but no manner or degree of confidential relationship, of and by itself, will suffice to thus cast the burden of proving that the testamentary act was not unduly influenced upon him. Schouler, Wills,§ 246, 1 Jarm. Wills, 35, 36, and notes; 1 Redf. Wills, 537; Gardiner v. Gardiner, 34 N.Y. 155, 163; Tyler v. Gardiner, 35 N.Y. 559; Post v. Mason, 91 N.Y. 539; Cudney v. Cudney, 68 N.Y. 148; Hagan v. Yates, 1 Dem. Sur. 584; Elliott's Will, 2 J. J. Marsh. 341; Bleecker v. Lynch, 1 Bradf. Sur. 458; Tyson v. Tyson, 37 Md. 567; Rutherford v. Morris, 77 Ill. 397; Sechrest v. Edwards, 4 Metc. (Ky.) 163, 174; Baldwin v. Parker, 99 Mass. 79, 85; McKeone v. Barnes, 108 Mass. 344; Waddington v. Buzby, 10 A. 862; Dale's Appeal, 17 A. 757; Wheeler v. Whipple, 44 N. J. Eq. 141, 145, 14 A. 275; Boyse v. Rossborough, 6 H. L. Cas. 2, 48; Parfitt v. Lawless, L. R. 2 Prob. & Div. 462; Mackall v. Mackall, 10 S.Ct. 705. None of these texts or cases impugn the doctrine of Shipman v. Furniss and Waddell v. Lanier, supra, but they make a distinction as to...