Cunninghame v. Herring

• Decision Date: 04 November 1915
• Docket Number: 2 Div. 605
• Citation: 70 So. 148,195 Ala. 469
• Parties: CUNNINGHAME v. HERRING.
• Court: Alabama Supreme Court

70 So. 148

195 Ala. 469

CUNNINGHAME v. HERRING.

2 Div. 605

Supreme Court of Alabama

November 4, 1915

Appeal from Law and Equity Court, Marengo County; Edward J. Gilder Judge.

Bill by Emma Pearl Herring against William Cunninghame, as executor etc., to declare the probate of a will invalid and for an accounting. Decree for complainant, and respondent appeals. Reversed and remanded.

William Cunninghame, of Linden, pro se.

Howard J. Clark, and Ben F. Elmore, both of Demopolis, for appellee.

GARDNER J.

The bill in this case was filed by the appellee, an heir at law of one Mrs. Mary E. Crane, deceased, for the purpose of contesting the will of the said Mary E. Crane; the will having been previously admitted to probate in the probate court of Marengo county without contest. A jury was demanded and the cause proceeded to trial upon two issues presented by the bill: (1) That the said Mary E. Crane, at the time of the execution of the will, was of unsound mind; and (2) that the execution of said will was obtained by undue influence on the part of William Cunninghame, executor named in said will. The ground of contest of undue influence is stated in still another manner in the bill as follows "That the said William Cunninghame exercised undue influence over the said Mary E. Crane in having the said will executed, and of which he was the sole executor without bond for a term of 30 years."

The will, the subject-matter of this suit, bears date of September 24, 1902. The testatrix died January 26, 1912. The verdict of the jury was as follows:

"We, the jury, find the instrument propounded not to be the last will and testament of Mary E. Crane."

There are two questions treated by counsel for appellant as of prime importance on this appeal. The first relates to the action of the court below in overruling a demurrer to the bill, or, rather, to that feature of the bill alleging undue influence as a ground of contest. The insistence is that this ground of contest is stated in too broad and general a manner, and does not sufficiently set forth the facts. This question of pleading was given consideration in the recent case of Alexander v. Gibson, 176 Ala. 258, 57 So. 760, wherein is found the following quotation from Letohatichie Church v. Bullock. 133 Ala. 548, 32 So. 58:

"We have never understood it to be necessary to allege with particularity the quo modo the result complained of was accomplished, *** but only that it was accomplished by undue influence exerted by named persons. *** Hence it is that the averment should be rather of the result than of the particular and special acts and modes of causation."

See, also, to the same effect, Phillips v. Bradford, 147 Ala. 352, 41 So. 657; and McLeod v. McLeod, 137 Ala. 267, 34 So. 228.

The averments of the bill in the instant case come within the rule recognized by these decisions, and there was, therefore, no error in the ruling of the court in that respect.

As previously stated, the cause proceeded to trial before the jury upon two grounds of contest, one of a testamentary capacity, and the other of undue influence. The verdict of the jury is general in its terms. Counsel for appellant requested affirmative instruction in his favor as to the ground of contest of undue influence, practically the same question being presented in several different charges, all of which were refused. It is therefore urged that there was not sufficient evidence upon which the question of undue influence should be submitted to the jury, and, such being the case, that the refusal of said charges must work a reversal, as there is nothing to indicate upon which ground of contest the verdict of the jury rested. Cash v. Lust, 142 Mo. 630, 44 S.W. 724, 64 Am.St.Rep. 576.

The record shows that Cunninghame, the appellant, was a practicing attorney in Marengo county, and had represented testatrix from time to time in such legal matters as she had although he was not retained by her. It also appears on the record that testatrix had confidence in him as her attorney as to matters intrusted to his care. At the time of the execution of the will she was about 70 years of age, and it was shown that she used morphine to some extent, and that she was easily influenced by those in whom she had confidence. Evidence was also offered to show mental weakness. Testatrix had executed a will in the year 1900, but it was not prepared by the appellant, though it is shown that the will in controversy...