Bleidt v. Kantor

• Decision Date: 09 April 1982
• Citation: Bleidt v. Kantor, 412 So.2d 769 (Ala. 1982)
• Parties: Nell BLEIDT v. Carl KANTOR and Joseph G. Vath, Bishop of Birmingham in Alabama. 80-590.
• Court: Alabama Supreme Court

Page 769

412 So.2d 769

Nell BLEIDT v. Carl KANTOR and Joseph G. Vath, Bishop of Birmingham in Alabama.

80-590.

Supreme Court of Alabama.

April 9, 1982.

Grover S. McLeod, Birmingham, for appellant.

J. Clewis Trucks of Trucks, Parsons & Guyton, Fairfield, and W. J. Sullivan, Jr. of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellees.

BEATTY, Justice.

This appeal from the Circuit Court of Jefferson County concerns a will contest initiated by Nell Bleidt, contestant of the will of Pete James Finnen, deceased. The party defendants are Carl Kantor (the executor) and Joseph G. Vath, Bishop of Birmingham in Alabama, a corporation sole, proponents of the will. The contest is based upon the allegations of undue influence in the execution of the will and forgery of the will. The jury returned a verdict in favor of proponents. The trial court awarded attorneys' fees to proponents and denied contestant's motion for a new trial.

Contestant raises two issues on appeal:

I. Whether the trial court erred in refusing to give certain jury instructions submitted by contestant on the issues of undue influence and forgery and in giving an instruction requested by proponents on the issue of undue influence.

II. Whether the trial court erred in awarding attorneys' fees to proponents.

I.

The issue regarding the jury instructions was not properly preserved for our review. At the conclusion of the trial court's instruction to the jury, contestant offered general objections to the omission of each of her requested charges and to the giving of one of proponents' charges by reading those charges verbatim into the record.

Rule 51, ARCP, states:

No party may assign as error the giving or failing to give a written instruction ... unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.... (Emphasis added.)

The objections made by contestant in this case were not sufficiently specific (even if they can be viewed as objections). Contestant stated the matter to which she objected by reciting her charges; however, she offered no grounds for the objections. Rule 51 expressly requires that a party state the grounds for his objection and the failure to do so is fatal to appellate review. Burnett v. Martin, Ala., 405 So.2d 23 (1981).

We held in Gardner v. Dorsey, Ala., 331 So.2d 634 (1976), that the grounds requirement is excused only in the limited circumstance where the party makes a specific objection and the charge involves a misstatement of substantive law. Contestant claims that her objection to the giving of one of proponents' charges falls within the exception to Rule 51 as the charge involved a misstatement on the issue of undue influence. We disagree.

The charge in question reads as follows:

I charge you that the mere fact that Carl Kantor was a friend of Mr. Finnen and did chores for him and assisted him as a good friend would do does not create a confidential relationship between Mr. Finnen and Mr. Kantor nor does it constitute a dominance by Mr. Kantor over Mr. Finnen. If you are reasonably satisfied from the evidence that Mr. Kantor was merely a good friend of Mr. Finnen but did not stand in a confidential relationship to him as to dominate the relationship, then you cannot find in favor of Mrs. Bleidt, the contestant of the will, on the issue of undue influence.

The general rule is that a presumption of undue influence arises when a person stands in a confidential relation to the testator, dominates the relationship and procures the execution of the will by undue activity. Nottage v. Jones, Ala., 388 So.2d 923 (1980). Contestant argues that the charge above states, in effect, that being a friend and doing chores for Finnen were unimportant in establishing a confidential relationship. We find, however, that the charge in question, in accord with the entire charge, merely emphasizes that friendship alone does not indicate undue influence. Not all influence with respect to the execution of a will is undue. Pruitt v. Pruitt, Ala., 343 So.2d 495 (1976). We hold, therefore, that the trial court did not misstate the law on undue influence, and on that issue the trial court's order is affirmed.

II.

The trial court awarded $10,000.00 in attorneys' fees to proponents pursuant to Code of 1975, § 43-1-76, which provides, in part, that the costs of any will contest "must be paid by the party contesting if he fails." In so doing the record discloses that the trial court gave a literal interpretation to the language of the statute. The...