Croft v. Alder

• Decision Date: 16 November 1959
• Docket Number: No. 41278,41278
• Citation: 115 So.2d 683,237 Miss. 713
• Parties: Mary Ann CROFT, Hubert Hines, Andy Hines and Billy Hines, Minors, by Wirt A. Hines, Next Friend, v. Barney L. ALDER, Mary Ann Alder, Henry Alder, Marks Methodist Church, and Citizens Bank & Trust Company and Barney L. Alder, Executors of the Estate of John J. Alder, Deceased.
• Court: Mississippi Supreme Court

Page 683

115 So.2d 683

237 Miss. 713

Mary Ann CROFT, Hubert Hines, Andy Hines and Billy Hines, Minors, by Wirt A. Hines, Next Friend, v. Barney L. ALDER, Mary Ann Alder, Henry Alder, Marks

Methodist Church, and Citizens Bank & Trust

Company and Barney L. Alder, Executors

of the Estate of John J.

Alder, Deceased.

No. 41278.

Supreme Court of Mississippi.

Nov. 16, 1959.

Holcomb & Curtis, Clarksdale, Ben M. Caldwell, Marks, for appellant.

E. C. Black, Lomax B. Lamb, Jr., Blanchard S. Tual, Memphis, Tenn., G. Howard Nevils, Tazewell, Tenn., for appellee.

ETHRIDGE, Justice.

This is a will contest, in which for purposes of disposition of the case we consider two issues: (1) Whether the evidence shows that the principal beneficiary was in a confidential and fiduciary relationship with testator at the time of execution of the will; and (2) if so, whether proponents met their burden of proof of showing by clear and convincing evidence that the will was not the product of undue influence upon testator as a consequence of such confidential relationship. The Chancery Court of Quitman County upheld the will. However, we have concluded that the undisputed evidence shows that the confidential relationship existed, and proponents-appellees wholly failed to show that the will was not the result of undue influence in the confidential relationship. Hence the decree of the trial court is reversed, and judgment is rendered here for appellants, adjudicating that the 1957 will is invalid and void.

I.

John J. Alder had lived in Quitman County many years, and since 1932 lived upon his 110-acre farm. He was exceptionally devoted to and dependent upon his wife, Mrs. Flora Hines Alder. They had no children. She died on September 1, 1954. Mr. Alder was then 85 years of age and in poor health. In addition to the normal effects of old age, he had had several major operations and illnesses. Apparently, his next of kin were a sister, Mary Ann Alder of Sneedville, Tennessee, a brother, Henry Alder of Blue Ridge, Texas, and a nephew, Barney L. Alder of Chattanooga, Tennessee. John J. Alder was reared as a child in Tennessee, but moved to Mississippi when he was a young man. He was fond of his wife's nephews, the appellants Hubert, Andy and Billy Hines, minors, the sons of Dr. Wirt A. Hines of Starkville, Mississippi, and of his wife's grandniece, Mary Ann Croft, a minor appellant, all of whom were complainants in the trial court, contesting the validity of John J. Alder's will of March 18, 1957. Mr. Alder had told Dr. Hines and his wife on several occasions that he and his deceased wife during her lifetime had jointly accumulated their properties, consisting of the farm, a bank account, stocks and bonds, and that he wanted the four children referred to above, the appellants, to have for their education some of his estate when he died.

On June 4, 1955, John J. Alder executed a will which left all of his property to the Citizens Bank & Trust Company of Marks, Mississippi, as trustee, with directions that the trustee sell and convert into cash his property, and thereafter distribute the proceeds as follows: To his sister Mary Ann Alder, 20 per cent; to his nephew Barney L. Alder, 20 per cent; to each of the minor appellants, 10 per cent; and to the Marks Methodist Church, 20 per cent. This will was placed by John J. Alder in his safety deposit box in the Citizens Bank & Trust Company of Marks. No one else had access to this box. The 1955 will was found there after his death.

The will which is the subject of contest in this case was executed by testator, John J. Alder, on March 18, 1957, while in bed and a patient at the Coahoma County Hospital at Clarksdale. It bequeathed and devised to the Citizens Bank & Trust Company of Marks and Barney L. Alder, as trustees, all of testator's real and personal property, with directions to sell the same and distribute the proceeds as follows: $500 to the Marks Methodist Episcopal Church; 25 per cent to Mary Ann Alder; 25 per cent to his brother Henry Alder; and 50 per cent to Barney L. Alder. Item IV of the will stated: 'I have directed that 50 per cent of the proceeds of my estate be paid to my nephew, Barney Alder, and my reason for so doing is that he has assisted me in my business affairs for several years past, and has recently been looking after me personally, and has made several trips from his home in Chattanooga to Marks, Mississippi, to look after me and to assist me in my business affairs, and is now taking care of me, and I feel that he is entitled to a larger share of my estate than my brother and sister.' The will was witnessed and attested by E. C. Black, an attorney of Marks, and by Johnie Burdine.

After testator's death on February 3, 1958, the will of March 18, 1957, was probated in common form upon the affidavit of E. C. Black as attesting witness. Thereafter the appellants filed in the Chancery Court of Quitman County their bill of complaint attacking the validity of the will of March 18, 1957. The bill alleged that it was invalid because (1) it was not properly executed, since testator at the time was not of sound and disposing mind; (2) it was not attested by two or more credible witnesses in the presence of the testator, as required by Miss.Code Sec. 657; (3) it was the result of undue influence imposed upon testator by Barney L. Alder; and (4) it was the result of fraud, deceit and duress perpetrated upon testator by Barney L. Alder. The bill further averred that the true last will and testament of John J. Alder was the one dated June 4, 1955, and it would be offered for probate when the court declared the 1957 will void.

The defendants Barney L. Alder, individually and as co-executor and co-trustee of the will, Mary Ann Alder, and Henry Alder by their answers denied the allegations in the bill of complaint. Defendant Citizens Bank & Trust Co. of Marks, as co-executor and co-trustee, in its answer neither admitted nor denied the grounds of the suit, but denied complainants were entitled to any relief. The answer of the Marks Methodist Church admitted the allegations of the bill. All parties waived a jury trial and agreed for the issues to be tried by the chancery court. After the trial, the chancellor rendered an oral opinion, in which he found that testator was of sound mind, and the will was properly attested and was not void because of undue influence or fraud by Barney L. Alder. The chancellor stated that he could not 'find any testimony in the evidence that's been introduced' to indicate that John J. Alder's will was executed while he was under the undue influence of Barney L. Alder; that one might imagine it as a possibility, 'but there is no where in the testimony that he exercised any undue influence so far as the court can see * * * We've got to have positive proof and we don't have it here.' With reference to fraud and deceit by Barney, there must be 'strict proof and positive proof,' and there is no evidence 'to substantiate those charges.' The final decree adjudicated that complainants were not entitled to the relief sought in their bill and contest, dismissed the bill with prejudice, and held valid the will of March 18, 1957.

II.

After careful consideration of the record, we have concluded that the learned trial court was in error in upholding the will. The apparent reason for this was the failure of the chancery court to apply to the undisputed facts the well-established principle of law that, where a confidential relation exists between a testator and a beneficiary under his will, and the beneficiary has been actively concerned in some way with the preparation or execution of it, the law raises a presumption that the beneficiary has exercised undue influence over the testator, and casts upon the beneficiary the burden of disproving undue influence by clear and convincing evidence.

94 C.J.S. Wills Sec. 239, pp. 1091-1096, states the rules as to a presumption of undue influence arising from the existence of a confidential relation between a testator and beneficiary under a will: '* * * the generally accepted rule is that a presumption of undue influence is not raised and the burden of proof is not shifted by the mere fact that a beneficiary occupies, with respect to the testator, a confidential or fiduciary relation, such as that which exists with respect to a doctor or a physician, guardian, religious and spiritual adviser, employer, landlord, or a close business relation, such as that of partner, principal, or confidential business manager, although the existence of such a relationship may demand a close judicial scrutiny.

'On the other hand, it is the general rule in practically all jurisdictions that undue influence is presumed and the burden of proof shifted so as to require the beneficiary to produce evidence which at least balances that of the contestant, when, in addition to the confidential relation, there exists suspicious circumstances, such as the fact that the beneficiary or person who benefits by the will took part or participated in the preparation or procuring of the will, or actually drafted it or assisted in its execution.'

57 Am.Jur., Wills, Secs. 389, 390 state that, although the mere existence of confidential relations between a testator and a beneficiary under his will does not raise a presumption that the beneficiary exercised undue influence over the testator, as it does with gifts inter vivos, such consequence follows where the beneficiary 'has been actively concerned in some way with the preparation or execution of the will, or where the relationship is coupled with some suspicious circumstances, such as mental infirmity of the testator;' or where the beneficiary in the confidential relation was active directly in preparing the will or procuring its execution, and obtained under it a substantial benefit. 2 Page on Wills (3d ed., 1941), Sec. 818, discusses in detail these two rules with reference to gifts inter vivos...