Dolberry v. Dolberry

• Citation: 44 So. 1018,153 Ala. 434
• Parties: DOLBERRY ET AL. v. DOLBERRY ET AL.
• Decision Date: 28 November 1907
• Court: Supreme Court of Alabama

44 So. 1018

153 Ala. 434

DOLBERRY ET AL. v. DOLBERRY ET AL.

Supreme Court of Alabama

November 28, 1907

Appeal from Chancery Court, Jackson County; W. H. Simpson Chancellor.

Bill by George Dolberry and others as administrators of Absolom Dolberry, against John and Ben Dolberry, for cancellation of deeds. From a decree for respondents, complainants appeal. Affirmed.

The case made by the bill is that Absolom Dolberry was about 80 years old at the time of his death, and some time before his death he had been very childish and feeble; that his memory had failed him, and that he was incapable of transacting his business; that the two respondents named in the bill lived near him and with him, attended him in his sickness, and exercised undue influence over him, by means of which they procured the deeds to certain of his lands which are sought to be canceled and surrendered. The bill further alleged that he died seised and possessed of $3,000 in money, which these respondents had surreptitiously obtained and were withholding from the administrators of the estate. By the answer it was admitted that Absolom Dolberry made deed to each of the respondents and to certain other heirs to certain parcels of the land; that the deeds were made to the respondents for a consideration which each of them had paid, and that as to the other heirs the deeds had been delivered to respondent, to be delivered to the other heirs upon the death of the parent. It was denied that there was any undue influence, or that the old man was feeble and incapable of attending to his business. The tendency of the evidence is sufficiently stated in the opinion of the court. The chancellor denied the complainants relief on the final hearing.

Virgil Bouldin and James A. Bilbro, for appellants.

John B Tally, for appellees.

ANDERSON J.

The law does not presume undue influence in the conveyance from a parent to a child from the mere act, and, in the absence of evidence other than the conveyance and the relationship, the presumption is that it was free from undue influence, upon the theory that the parent, and not the child, is the dominant party. McLeod v. McLeod, 145 Ala. 269, 40 So. 414. Of course, this presumption is not conclusive, and where evidence is introduced showing that the parent has reached the state of senility and is dominated by the child it would then be incumbent upon the child to show the fairness of the transaction and...