Burke v. Thomas

• Decision Date: 13 June 1968
• Docket Number: 3 Div. 254
• Citation: 211 So.2d 903,282 Ala. 412
• Parties: Lee BURKE and Tom Sanders v. May THOMAS, as Executrix.
• Court: Alabama Supreme Court

Page 903

211 So.2d 903

282 Ala. 412

Lee BURKE and Tom Sanders v. May THOMAS, as Executrix.

3 Div. 254.

Supreme Court of Alabama.

June 13, 1968.

Gray & Seay, Montgomery, for appellants.

Hill, Robison & Belser, Montgomery, for appellee.

PER CURIAM.

Jury and verdict, followed by judgment, in the circuit court of Montgomery County, sustaining validity of the last will and testament of Lucy Jackson. Appellants contested the will on the ground of mental incapacity of testatrix to make the will, and on the further ground that the sole beneficiaries of said will, Mary Thomas and Robert Thomas, exerted undue and improper influence on said testatrix that induced her to make the will.

There are thirteen assignments that assert error on the part of the trial court when the contest was tried. Not all of these assignments are insisted on, or are properly argued to invite this court's review. Bates v. Rentz, 262 Ala. 681, 81 So.2d 349(7). We will address our review to those assignments that are properly argued, and will omit consideration of the others.

It appears from the evidence that testatrix was approximately seventy-three years of age and bedridden with paralysis when she signed the will here in question. Her signature was impressed by mark on January 27, 1965, in the presence of Judge D. Eugene Loe and his wife, both of whom signed as witnesses to the instrument.

We will not set forth or summarize all of the testimony of Judge and Mrs. Loe as to the circumstances attending the execution of the will at the home of the testatrix, but will recite some of the salient observations of the witnesses when they testified.

It appears that Judge Loe had known the testatrix over a period of many years prior to the execution of the will. The decedent had been a faithful and acceptable client for many years and had befriended Judge Loe many times. He had drawn a prior will or two for her. She frequently sought his legal advice on business transactions pertinent to her frugal and limited income.

It appears that a few days prior to January 27, 1965, when testatrix signed the will, Judge Loe received a telephonic request to prepare a will for this client. He delayed doing so, but on the date the will was executed, Juge Loe received a telephone call from Mary Thomas, one of the beneficiaries, to prepare a will for his client. Judge Loe elicited from Mary Thomas such information as would enable him to prepare the will in his office, and avoid its preparation at the home of his client without the aid of a secretary or typewriter. He left blank spaces in the will for insertion of the names of the beneficiaries and of the executrix. These spaces he filled in when he got to the home of his client.

Judge Loe left his wife in the automobile and went into his client's home alone. Mary Thomas was standing in the hallway near the door leading into the room of his client who was in bed and physically handicapped with a stroke of paralysis. He ascertained from his client the name of the person to be nominated as executrix. The beneficiaries were to be Mary Thomas and Robert Thomas, with the former to be nominated as executrix. These names were inserted in the will (in the handwriting of Judge Loe) at the proper places.

There was no person present in the house who was eligible to witness the will, other than Judge Loe. Rather than wait thirty minutes for a witness to reach the residence, Judge Loe invited his wife to come in and sign as a witness. Both Judge Loe and his wife were present when testatrix signed the will by mark. Her hand was too feeble to write her signature.

We are impressed from the testimony of Judge and Mrs. Loe that, in their judgment, the testatrix appeared fully competent mentally to appreciate and understand the contents of the will which Judge Loe read to her and made pertinent explanations of the provisions thereof.

On direct examination, Judge Loe testified:

'Q. And could you tell the jury when it (the will) was filed for probate, Sir?

'A. On the 16th day of March, 1965. I might say in addition to your question, that Lucy was over twenty-one years of age and of sound mind in my opinion at the time she executed the will, and the will was executed in the presence of Mrs. Loe and myself and in the presence of Lucy Jackson, each at the same time.

'Q. Judge, could you tell us whether or not Lucy was able to talk and converse with you at the time she executed the will?

'A. Yes.

'Q. Did she appear to be mentally alert?

'A. Yes, of course, she had a stroke. In other words, that was the purpose that I went out there, the will was executed at her house, and I went out for the purpose of, that was my purpose in going there.

'Q. But at the time she signed the will, you noted no abnormal defection in her mind or her ability to talk?

'A. No, none other than the fact she, of course, had had the stroke, it was just a known fact that she had a stroke and she was unable to actually sign her name to the will. In other words, she, her stroke had affected her in a way it would have been practically impossible for her to have written her name on out, as she had been able to do in the past, and for that reason I did let her make a cross-mark.

'Q. Did she appear frightened or coerced at the time she executed the will?

'A. No. If you wish me to, I will tell you what took place when I went there.

'Q. If you could, please.

'A. It happened that I had been called several times, a couple of times at least, to, Lucy wanted me to come out and change her will. And actually I had represented Lucy over a period of time, well, and she was one of my faithful colored friends, in other words, over all the years that I had been practicing, probably, at least many, many years, and I felt that it was my duty to go out if she really wanted to change her will. And I did get information from the party who called me (Mary Thomas), * * * the woman sitting there at the table, as to what she proposed to put in her will. This will, this will, was typed, written up at my office, with the blanks, in order that I wouldn't have to write it out in longhand as some of the lawyers have to do, provided that was what she really wished. When I first got there, the front door was open, some children were in the hall, and I just walked on in. I asked where Lucy's room was, and I was directed to Lucy's room, and she was in bed in her room. I went in there and talked with her for some few minutes. I asked if she knew why I was out there, in effect, of course, without remembering the exact details on each, and she told me she sent for me to change her will, in fact, I actually also knew Lee Burke had been in the office with her on occasion himself, and--

'Q. (Interrupting) And Lee Burke is the contestant, is that right?

'A. One of them, yes. And I asked her why she wanted it changed and so forth, and she explained to me that her reason for change was they wanted to put her in a nursing home and she didn't want to go to a nursing home, and that this woman was looking after her, taking care of her, and that she wanted it changed so that she could be the beneficiary along with this other beneficiary. And it clearly appeared to me that Lucy was of lucid mind and knew what she was doing and she had capacity to make a will even though she was under this incapacity of a stroke. * * *'

Mrs. Loe, testifying prior to her husband, stated as follows:

'Q. Now, at the time Judge Loe read this will to Lucy, both you and Lucy and Judge were in the room together?

'A. Yes.

'Q. Was there anyone else in the room?

'A. Mary was standing in the door.

'Q. There was no one else in the room that you recall?

'A. No, no, not that I recall.

'Q. Now, when Judge read the will and asked her if that's what she wanted to do, you said she stated that it was?

'A. That's right.

'Q. Was she able to talk?

'A. Oh, yes.

'Q. Did you have any conversation with her?

'A. No, when I went in, when Judge Loe came out to the car and got me and said that he wanted me to come in and witness the will, he said, 'Lucy, this is Mrs. Loe,' and she said, 'I have seen Mrs. Loe down at your office,' and that's the only conversation.

'Q. That's the only conversation?

'A. That's the only conversation. I didn't enter into that.

'Q. Well, she was clear in her talk, is that right?

'A. Oh, yes, she was clear.'

Mary Thomas, one of the beneficiaries and executrix, testified as to her presence in the home of testatrix when the will was signed, when she came, and the circumstances leading to her arrival on January 24, 1965. It appears that she came there to take care of testatrix during her illness; and that testatrix did not want to go to a nursing home, but wanted to remain in her own home. That none of her relatives was looking after her--Mary Thomas was perhaps distantly related to testatrix and had known her since she, Mary Thomas, was a child. It further appears that testatrix wanted to compensate Mary by making her a beneficiary of her will. It further appears that testatrix owned about 33 acres of land that she inherited, and a cow or two when Mary arrived. The State Welfare Department began providing $100 per month for the maintenance of the patient and Mary Thomas. The decedent was also drawing $40 a month social security. Mary Thomas testified:

'Q. Do you recall when Judge Loe and Mrs. Loe came out to Lucy's house?

'A. Well, she, I didn't know her lawyer. I had heard no talk of him. She, she was talking about a will, she said, she used to tell my mother all the time, if she always wanted me to live with her, but I didn't, and she always said if I come and take care of her, she wanted me to have everything she had. And so I went down, I stayed there awhile, and she started talkin', you know, about the will, and she wanted me to call Judge Loe, and so I called him.'

On cross-examination the witness testified:

'Q. Tell me exactly what she said the first time that she said anything about it?

'A. She said 'May', she...