Dees v. Metts

• Decision Date: 03 February 1944
• Docket Number: 1 Div. 186.
• Parties: DEES et al. v. METTS et al.
• Court: Alabama Supreme Court

17 So.2d 137

245 Ala. 370

DEES et al. v. METTS et al.

1 Div. 186.

Supreme Court of Alabama

February 3, 1944

Rehearing Denied March 23, 1944.

J.D Ratcliffe and John M. Coxwell, both of Monroeville, for appellants.

C.L. Hybart, of Monroeville, for appellees.

GARDNER Chief Justice.

This cause was originally assigned to Mr. Justice BOULDIN. Upon consideration of his opinion by the Court in Division consultation, the writer prepared the following opinion in dissent thereto. And upon further consideration of the cause by the whole Court, the conclusion reached by this dissenting opinion met the approval of the majority and here controls the result. Justice STAKELY concurs in the following opinion in its entirety. Justices BROWN and LIVINGSTON limit their concurrence as indicated in the separate concurring view written by Justice BROWN and found stated below.

The unnumbered charge, given at the request of contestants, and forming the basis of the fourth assignment of error, reads as follows: "The court charges the jury that if the consideration in the deed is so extremely inadequate as to satisfy the conscience of the jury that there must have been imposition, or undue influence, which in the opinion of the jury amounted to oppression, the jury should return a verdict for the contestant."

The deed to which the charge referred recited the consideration as follows: "That for and in consideration of 1 and 00/100ths dollars to the undersigned grantor J.B. Watts in hand paid by Nazarine Parker the receipt whereof is acknowledged."

The principle attempted to be brought forward by this charge could have reference only to a transaction regarding bargain and sale--a vendor and purchaser--such as was considered in Kirby v. Arnold, 191 Ala. 263, 68 So. 17. But it has no application whatever to the deed here in question. There was no bargain and sale. Confessedly, it was a deed of gift and nothing more. The action of the trial court in giving this charge cannot be sustained upon the theory that it was abstract. To do so would be to permit the application of legal principles to a given case which are entirely foreign thereto, and leading to a definite result. We must assume that the jury gave some consideration to this charge. They had it with them in the jury room. Doubtless they had also with them the deed. They could interpret the charge, when it speaks of the consideration in the deed, only as meaning the recited consideration as found therein. So considered, they are told by this charge that if they view the consideration of $1 as extremely inadequate, this may be considered as indicating undue influence amounting to oppression justifying a verdict for the contestants.

Looking at it from a practical standpoint, it would appear that would be the only practical construction of the charge. The undisputed evidence was that the real

estate described in the deed was worth from $2,000 to $2,500. The jury was bound to know, therefore, that the expressed consideration of $1, as found in the deed, was "extremely inadequate." As a consequence, in practical effect it appears the charge amounted to affirmative instructions in favor of the contestants, so far as the deed is concerned.

Mr Lee, a reputable attorney of Monroeville, testified concerning the preparation of this deed for Ben Watts. His evidence was to the effect that he had known Watts for a period of 25 years. Watts had consulted him previously about his will, which he had exhibited to him, and Lee had advised Watts that it was quite sufficient to carry out his wishes; i.e., giving his property to Nazarine Parker. Several months later, and a few months before he died, Watts called upon him again, and asked if he could legally convey his lands to Nazarine Parker reserving the use of his lands during his lifetime, and stating that he anticipated his people might try to break his will; and that "he wanted to do everything possible to make sure that his will would be carried out." Lee advised him such a deed could be made reserving a life estate; and he prepared the deed for him. He further testified that Watts "was absolutely of sound mind, and there was no question about him understanding the nature of the business he was transacting. * * * He was determined and wanted to see that none of his people got any of his money. He stated that this Negro had helped him and taken care of him, and he wanted her to have the property." Lee further stated that Nazarine Parker was not in his office at the time the deed was prepared; that in fact he had never seen her during Ben Watts' lifetime. "I never saw her to know who she was. I do not know where Nazarine Parker is today."

J.B. Barnett had been in the banking business in Monroeville close to 39 years, and had been acquainted with Ben Watts during most of that time. Watts did his banking with the bank in which Barnett was interested, and appears to have been engaged in hauling freight and express in his truck, as well as mail. When money was shipped into the bank, Watts receipted for the bank at the express office, and took money away from the bank to be shipped--this for a long period of years. Barnett testified that Watts was a man of sound mind, "a man of special keenness, and in my judgment he was a man of strong determination. He was not easily persuaded. He was very determined in his ideas."

Other business men, including Mr. Dees, the banker who wrote the will for Watts, testified to like effect. Reference is made to some of the testimony as found in the record merely to demonstrate there was abundant proof upon which the jury could rest a finding the deed was executed free from any undue influence. Yet, as I think the jury were bound to construe this charge, they were instructed by the court that the extreme inadequacy of the recited consideration in the deed alone justified its annulment. This, of course, is not the law, and I am fully persuaded inescapable error was committed in the giving of this charge.

But my disagreement goes beyond this point and to the very essence of the case. Coming to a consideration of the will, I am unable to find sufficient proof in the record to justify its invalidity. I am, of course, in full accord with all that is said in Mr. Justice BOULDIN'S opinion concerning the policy of our State, as found in our Constitution and statute, intended to prevent race amalgamation and to safeguard the racial integrity of white peoples as well as the racial integrity of Negro peoples. I freely admit, also, as stated in Story v. State, 178 Ala. 98, 59 So. 480, 482, that a universal public opinion prevalent in both races recognizes at least two grades of depravity in matters of illicit relationship. It is reprehensible enough for a white man to live in adultery with a white woman, thus defying the laws of both God and man, but it is more so, and a much lower grade of depravity, for a white man to live in adultery with a Negro woman. As said by the court in the Story case, supra, "Reclamation may be made of [the] one; but, for the other, there is little, if any, hope."

Fortunately, the cases of such depravity are very rare. The contest of the will of one Ryal Noble, found reported in Allen v. Scruggs, 190 Ala. 654, 67 So. 301, furnishes a disgraceful example. The opinion discloses that Noble was a white man coming from an entirely respectable family of people; that soon after the War between the States he began a meretricious association with Kit Allen, a Negro woman who lived on his plantation, and during many years he had his residence in a building nearby to that occupied by her. There were five children born, and to these children he willed his property. At the execution of the will the woman, Kit Allen, was present. The case was very ably presented to this court, and quite an elaborate discussion of the facts and the applicable principles of the law are to be found in the opinion. The will had been lost. The proof satisfied the court that, nevertheless, it had existed, and that it expressed the fixed will of the testator. The result was that the ruling of the probate judge, before whom it was tried without a jury, was reversed and one here rendered admitting the will to probate.

For such meretricious conduct our laws are more severe, the punishment more extreme. Yet it appears that organized society--the law--took no step to interfere, and the guilty parties left unmolested. One thing, however, is clear, and that is--however reprehensible the conduct and however deservedly severe the punishment, the law forfeits no right to ownership of property of either of the guilty parties, nor challenges the right of free disposal thereof.

It is the settled law of this State that illicit relationship is not sufficient per se to warrant a conclusion of undue influence. And no presumption of undue influence arises merely from the fact that a man who is of sound mind makes a will in favor of his mistress, or in favor of one with whom his relations have been meretricious. Hobson v. Morgan, 215 Ala. 274, 110 So. 406. The distinction in regard to the question of burden of proof as between a will and a deed is fully discussed in Bancroft v. Otis, 91 Ala. 279, 8 So. 286, 289, 24 Am.St.Rep. 904. Undue influence, it was there pointed out, which will void a will must amount to coercion or fraud; and as there said: "There must be some proof of these things." The existence of confidential relations between the testator and the beneficiary under the will must be "coupled with activity on the part of the latter in and about the preparation or execution of the will, such as the initiation of proceedings for the preparation of the instrument, or participation in such preparation, employing the draughtsman, selecting the...