Bulger v. Ross

• Decision Date: 05 April 1893
• Citation: 12 So. 803,98 Ala. 267
• Parties: BULGER ET AL. v. ROSS.
• Court: Alabama Supreme Court

12 So. 803

98 Ala. 267

BULGER ET AL. v. ROSS.

Supreme Court of Alabama

April 5, 1893

Appeal from probate court, Tallapoosa county; James H. Johnson Judge.

Proceeding to probate the will of Mrs. M. Frances Ross. The proponent was D. A. G. Ross, and the contestants were Amanda E. Bulger and others. The will was admitted to probate. Contestants appeal. Reversed.

The contestants asked the court to give the following written charges, and separately excepted to the court's refusal to give each of said charges as asked. (4) "It requires not only mind and memory, to make testamentary capacity, but sufficient mind and memory that the testatrix understands the nature of the business engaged in, and to comprehend the scope and extent thereof, and to understand the obligations of testatrix, if any is shown to exist, towards any person or persons; and if from all the evidence in this case the jury believes that Mrs. Ross, at the date of making the will, was incapable, because of the weakness of her mind, to so comprehend these subjects and obligations, then she had not testamentary capacity, and the jury will find for contestant." (7) "When the proponent takes a large benefit under the provisions of the will, and he stands in confidential relation of husband to the testatrix, and it appears that the proponent procured the services of the draughtsman and the attendance of the subscribing witnesses who were intimate friends of the proponent, and the instrument was executed in the absence of any near kindred of the testatrix, who were not advised of the making of the will, and who were as convenient to testatrix as the persons who were present, the jury are authorized to look upon the transaction with suspicion; and unless the evidence clearly and satisfactorily shows that no undue influence was brought to bear upon the testatrix in the execution of the instrument the same cannot be upheld, and the jury should so find by their verdict." (8) "Where the proponent takes a large benefit under the will, and occupies the confidential relation of husband to the testatrix, and it appears that he was active in procuring the attendance of the attesting witnesses, who are shown to be the intimate friends of the proponent, and it further appearing that the near kindred and more intimate friends of the testatrix were not advised of the transaction, although equally as convenient as the persons who were called as witnesses, and that by said will the testatrix disposes of the property largely for the benefit of the proponent, contrary to her previously declared purposes, these circumstances cast suspicions upon the transaction; and unless the proponent shows, by clear and satisfactory evidence, that no undue influence was brought to bear upon the testatrix, the will cannot be upheld, and the jury will so find." (9) "If the jury believes from the evidence that the making of the will was not the free act of Mrs. Ross, but was an act growing out of fraud perpetrated on her, in procuring the will to be made in violation of her promise to, and obligation growing out of Mrs. Ross' contract with, Mr. Holley, then the jury will find for the defendant." (10) "While the promise made to Mr Holley by Mrs. Holley to will Mrs. Bulger the property-also, its violation by her-is not sufficient, within itself, to destroy the will, yet if the jury believes such promise was made the jury will consider it, along with the other testimony, in determining the issues in this case."

W. D. Bulger and Watts & Son, for appellants.

W. J. Samford and H. A. Garrett, for appellee.

STONE C.J.

The questions presented by this record arose on the application to probate and establish a paper as the last will and testament of M. Frances Ross, late the wife of D. A. G. Ross, the proponent. Mrs. Ross died without descendants. The probate was contested by some of the next of kin, who would share in the distribution if there was an intestacy. The grounds relied on to set aside the will, as we learned from the record, were-First, that decedent had not, at the time of its execution, sufficient mind and memory to make a valid will; and, second, that it was procured to be executed through undue influence exercised by the husband, D. A. G. Ross, who is a beneficiary under it. Fraud in procuring the execution of the will was also assigned as a reason why it should not be admitted to probate, but the record contains no testimony raising that question. The verdict and judgment sustained the validity of the will, and the contestants appeal.

We will first consider the question of undue influence. The undue influence which will overturn or defeat a testamentary disposition of property must be of such a character as to overpower the will of the testator, and substitute another's will in its place. It must amount to controlling, mental restraint and coercion, destroying the free agency of the testator. In fact, to constitute such undue influence, the will and wish of the testator must be subordinated and displaced by the superior, dominating will of another. Affection or a desire to gratify another's wishes is not that sort of coercion which defeats attempted testamentary disposition. All the better instincts and emotions are left in full play, and are harmless unless the will itself-the power of independent action-is overcome. It ceases to be the will of the ostensible testator only when it is shown to have been brought about by another's superior will. Bancroft v. Otis, 91 Ala. 279, 8 South. Rep. 286; Moore v. Spier, 80 Ala. 129; Leeper v. Taylor, 47 Ala. 221; Taylor v. Kelly, 31 Ala. 59. And the fact that the testator is the wife of the legatee does not, per se, raise the presumption of fraud or undue influence, so as to shift the burden of proof on the beneficiary. Bancroft v. Otis, supra; Eastis v. Montgomery, 93 Ala. 293, 9 South. Rep. 311; Lyons v. Campbell, 88 Ala. 462, 7 South. Rep. 250; Johnson v. Armstrong, (Ala.) 12 South. Rep. 72. Testamentary capacity does not necessarily imply a mind wholly unimpaired. If the testator recollects the property he or she is about to bequeath, the persons to whom there is a wish to bequeath it, the manner in which he or she desires to dispose of it, and understands the business engaged in, this is testamentary capacity. If these mental qualities are found to have existed when the will was executed, then great age, bodily infirmity, or impaired mind,-one or all,-will not vitiate the will. The disposing mind and memory which the law declares are the tests of testamentary capacity are all embodied and expressed in the one power to collect and retain the elements of the business to be performed for a sufficient length of time to perceive and comprehend their relation to each other. O'Donnell v. Rodiger, 76 Ala. 222; Leeper v. Taylor, supra; Bates v. Bates, 27 Iowa, 110.

We have now stated the two controlling inquiries which were submitted to the jury for their...