Clark v. Clark

• Decision Date: 16 February 1967
• Docket Number: 4 Div. 258
• Citation: 280 Ala. 644,197 So.2d 447
• Parties: Reba Turner CLARK et al. v. William Orester CLARK et al.
• Court: Alabama Supreme Court

Page 447

197 So.2d 447

280 Ala. 644

Reba Turner CLARK et al. v. William Orester CLARK et al.

4 Div. 258.

Supreme Court of Alabama.

Feb. 16, 1967.

Rehearing Denied April 13, 1967.

W. J. Williamson, Williamson & Taber, Greenville, Robt. B. Albritton, Albritton & Rankin and Hiram J. Brogden, Jr., Andalusia, for appellants.

Griffin Sikes, Jas. M. Prestwood and F. B. McGill, Andalusia, for appellees.

SIMPSON, Justice.

This is a will contest. The appellant are the widow of the decedent and the executor named in his will dated January 10, 1961, with a codicil dated August 27, 1963. The appellants are the proponents of the will. The appellees are the five children of decedent by a prior marriage. They are the contestants of the aforementioned will.

The appellees filed a bill contesting the will Dated January 10, 1961, on the ground of undue influence exerted over the testator by his widow, Mrs. Reba Turner Clark, and further contended that the codicil dated August 27, 1963 revoked the will dated January 10, 1961, and revived a prior will dated December 20, 1960.

After a lengthy trial the case went to the jury on the two issues raised, i.e. undue influence and the effect of the codicil revoking the January 10, 1961 will and reviving the December 20, 1960 will. The jury returned a general verdict in favor of the contestants. This appeal followed.

Briefly, the facts are:

Mr. Bury Clark was a resident of Covington County, Alabama, until he died in October, 1963. On December 27, 1957 he a widower, married Mrs. Reba Turner, a widow. They lived together as man and wife from the day of their marriage until the death of Mr. Clark. At the time of the marriage all of the five children of Mr. Clark were over twenty-one years of age and all were living away from Mr. Clark's home.

During the summer of 1960 Mr. Clark consulted Mr. Hiram Brogden, Jr., a member of the Andalusia bar, regarding the disposition of his estate. He was interested in disposing of his estate in a manner which would avoid unnecessary payment of federal estate tax. After several consultations, it was decided by Mr. Clark and his attorney that Mr. Clark would divide his real property by deed to his five children, retaining a life estate in the 120 acre home site to himself and his wife. He owned 840 acres of real estate, with 80 acres of this amount being held under a deed conveying the same to Clark and his first wife as tenants in common. To accomplish his plan to divide the entire 840 acres among his five children, his attorney drafted deeds from the five children to Clark releasing the interest of each in the 80 acres held by him and the mother (deceased) of the children as tenants in common. He further drew deeds from Clark to each of the five children dividing the entire 840 acres, reserving a life estate in 120 acres comprising the 'home place'.

After these deeds were drafted Mr. Clark asked each of his children to come to Andalusia and execute the deed to the 80 acre tract held as tenants in common by him and their deceased mother. One of his daughters refused to sign this deed, so that the five individual deeds to each of the children dividing the entire 840 acres were never signed.

Thereafter, Mr. Clark consulted with his attorney with regard to disposing of his estate by will. Mr. Brogden drafted several wills from time to time and Mr. Clark studied them and made suggestions and changes. On December 20, 1960 Mr. Clark executed a will in the presence of two witnesses and his executor therein named, Mr. Simmons, an officer of the Commercial Bank of Andalusia. The original was deposited with the bank for safekeeping. A receipt was given for the will dated December 20, 1960, and placed in Mr. Brogden's files. The evidence is that this will left to the children the parcels of property covered in the deeds which were never eecuted, retaining a life estate for the testator and his wife in either 120 acres or the entire 840 acres. The evidence is not entirely clear on this point.

Thereafter Mr. Clark returned to his attorney's office and requested that he prepare a new will so that a change might be made in the disposition of the remainder interest in a particular 40 acre tract. He wanted to take this 40 acres from the daughter named in the will of December 20 and give it to another child. Mr. Brogden drew up a new will making the requested change in the disposition of the remainder interest in this particular 40 acres.

The new will was taken to Mr. Simmons at the Commercial Bank of Andalusia. This new will was executed by Mr. Clark in the presence of two witnesses, employees of the bank and in the presence of Mr. Clark's attorney. At that time Mr. Simmons returned to Mr. Clark the December 20, 1960 will. Mr. Clark physically destroyed the will in the presence of Mr. Simmons and Mr. Brogden and after tearing it to some extent asked Mr. Brogden to finish destroying it. The destroyed will was placed in the trash basket at the bank. The new will was dated January 10, 1961. It remained in the vaults at the Commercial Bank until Mr. Clark's death.

There the matter rested until the summer of 1963, Mr. Clark's last summer. During that time his death was imminent. He called his attorney's office and asked that he come to see him about making some arrangements to have the 1963 crops gathered in the event he died before they were harvested. Mr. Brogden was out of town. His father, Mr. Brogden, Sr., called him and asked what should be done. He suggested a codicil to the will. Acting upon this suggestion the senior Mr. Brogden and the junior Mr. Brogden's secretary went to Mr. Clark's home where the following codicil was dictated:

'STATE OF ALABAMA

'COVINGTON COUNTY

'KNOW ALL MEN BY THESE PRESENTS, That I, Bury Clark, a resident of Covington County, Alabama, being over the age of twenty-one years and of sound mind and disposing memory, do make, publish and declare this to be a Codicil to my Last Will and Testament, executed by me on December 20, 1960, and deposited with the Commercial Bank, Andalusia, Alabama, for safekeeping. This Codicil is to be made a part of my Last Will and Testament and designated as the Ninth paragraph.

'NINTH

'Due to illness which prevents me from looking after my affairs, I have entered into an agreement with my son, William Orester Clark, to look after the harvesting and selling of the 1963 crops in which I have an interest. Under this agreement, William Orester Clark is to see that all crops are harvested and that Grover Willamson is to receive his one-half interest in the crops grown by him, after the amount he owes me is deducted, and that my share of the 1963 crops is to be sold and the money deposited to the credit of Bury Clark in the Commercial Bank, Andalusia, Alabama; William Orester Clark is to being all receipts for crops sold and deposit receipts to me, or in case of my death, to my heirs. In the event of my death before the 1963 crops are all harvested and sold, I direct my Executor to allow William Orester Clark to continue to look after the harvesting and selling of the crops until all 1963 crops are harvested.

'However, in the event there is disagreement among my heirs, my executor shall employ some person he deems capable to take over and look after harvesting and selling the 1963 crops.

'Witness my hand this 27th day of August, 1963.

'/s/ Bury Clark'

The record indicates without discrepancy that at the time of the execution of the aforementioned codicil that several of the contestants were present; that at no time did Mr. Clark mention any intention of revoking the January 10, 1961 will and no mention was made of reviving the December 20, 1960 will. At the time of the execution of the codicil the December 20, 1960 will had been destroyed. There was no copy of it in existence. The secretary of Mr. Brogden, Jr. who typed the codicil testified that she put the December 20, 1960 date in the codicil when she...