Dulaney v. Burns

• Decision Date: 08 November 1928
• Docket Number: 7 Div. 772
• Citation: 218 Ala. 493,119 So. 21
• Parties: DULANEY et al. v. BURNS.
• Court: Alabama Supreme Court

119 So. 21

218 Ala. 493

DULANEY et al. v. BURNS.

7 Div. 772

Supreme Court of Alabama

November 8, 1928

Rehearing Denied Dec. 20, 1928

Appeal from Circuit Court, Talladega County; Gordon T. Welch Special Judge.

Petition of R.B. Burns to probate the will of Samuel H. Dulaney deceased, contested by Charlie Dulaney and others. From a decree admitting the will to probate, contestants appeal. Affirmed.

Making of unnatural will is circumstance for jury on issue of fraud.

Statement of facts by FOSTER J.:

This is an appeal from the probate court on the trial before the court and jury of the contest of the will of Sam H. Dulaney who died March 29, 1927.

The will propounded for probate was dated February 27, 1927. He had made a will of substantially the same effect dated November 6, 1926. Both instruments were drawn by the same attorney.

Decedent had been married and had six children. He and his wife had been separated and divorced for many years, and she lived in Calhoun county with all the children and he in Talladega county alone on his farm.

The will named the proponent, R.B. Burns, as executor, and, after paying debts, etc., all his property was devised to his tenant on the place, R.L. Phillips. The children contested the probate of the will, resulting in a verdict for proponent. The grounds of contest were: (1) Want of due execution; (2) undue influence exerted by proponent; (3) undue influence exerted by the devisee, R.L. Phillips; (4) undue influence exerted by both of them; (5) fraudulent procurement of the execution by proponent; (6) fraudulent inducement and undue influence. The court overruled demurrer to grounds 1, 2, 3, and 4, of contest, and sustained demurrer to grounds 5 and 6, which is assigned as error. Grounds 5 and 6 are as follows:

"5. That said instrument is not the will of said decedent; for that the said decedent has been for many years, and for ten years or more next prior to his making the alleged will, completely under the domination of said R.B. Burns, who handled all his money, and proceeds of rents of his lands, without any accounting to said decedent; and who directed the drafting of the will, dictating its terms, and directing the bequest of lands to Robert L. Phillips, who was insolvent and largely indebted to said R.B. Burns, who expected thereby eventually to acquire the property; and for this purpose illegally and fraudulently procured the execution of the alleged will.

"6. Because the alleged will makes an unnatural disposition of said estate, making no provision for his children and natural objects of decedent's affection and bounty, and said decedent was thereunto fraudulently induced, and unduly influenced by others, not related to him, and not natural objects of his bounty."

The court gave at the instance of proponent written charge 1, and refused to contestants charges 6 and 7, and such rulings are assigned for error. These charges are as follows:

"1. I charge you, gentlemen of the jury, that undue influence which will overturn or defeat a testamentary disposition of property must be of such a character as to overpower the will of the testator, and substitute another's will in its place. It must amount to controlling, mental restraint and coercion, destroying the free agency of the testator, in fact, to constitute such undue influence, the will and wish of the testator must be subordinated and displaced by the superior, dominating will of another. Affection or desire to gratify another's wishes is not that sort of coercion which defeats attempted testamentary disposition. All the better instincts and emotions are left in full play, and are harmless unless the will itself--the power of independent action--is overcome. It ceases to be the will of the ostensible testator only when it is shown to have been brought about by another's superior will."

"6. The Court charges the jury, that if they find from all the evidence, that the suggestions of R.B. Burns to the testator, Sam H. Dulaney, induced the execution of the will which is now presented for probate by the proponent, R.B. Burns, and that the will was so induced on account of the feeble condition of the mind of the testator, then the verdict must be in favor of the contestants, and against the validity of the will.

"7. If the will was made by reason of suggestion and constraint exerted on the testator, substituting the desire and will of the proponent in the matter and form of the will, the will is invalid; and your verdict should be for the contestants, if you are reasonably satisfied from all the evidence that such constraint produced the will of Feby. 27th, 1927, now offered for probate."

There were other assignments of error which sufficiently appear in the opinion.

Harrison & Stringer, of Talladega, and Rutherford Lapsley, of Anniston, for appellants.

Knox, Dixon, Sims & Bingham, of Talladega, for appellee.

FOSTER J.

The fifth and sixth grounds of contest do not allege sufficient facts to present an issue. The alleged fraud in the fifth ground is stated in general terms and without a statement of facts upon which same is based. Though undue influence has some elements of fraud, they are not synonymous. Shirley v. Ezell, 180 Ala. 352, 60 So. 905. The charge of undue influence may be in general terms. Coghill v. Kennedy, 119 Ala. 641, 24 So. 459; Wear v. Wear, 200 Ala. 345, 76 So. 111. But the charge of fraud must contain a statement of facts sufficient to justify the charge. Wear v. Wear, supra; Barksdale v. Davis, 114 Ala. 623, 22 So. 17; Moore v. Heineke, 119 Ala. 627, 24 So. 374. The fact that an alleged unnatural will is made as claimed in the sixth ground of contest is not of itself sufficient allegation upon which to base a charge of fraud. It is only one circumstance for consideration by the jury. The court correctly charged the jury orally in this respect. Chandler v. Jost, 96 Ala. 596, 605, 11 So. 636; Burney v. Torrey, 100 Ala. 157, 14 So. 685, 46 Am.St.Rep. 33; Pool's Heirs v. Pool's Ex'r, 33 Ala. 145.

Charge No. 1 given the jury at the instance of proponent is copied from the opinion of this court defining undue influence in Bulger v. Ross, 98 Ala. 267, 12 So. 803. It is a statement of law supported by several cases cited in the opinion. The language of this charge copied from said opinion is quoted with approval in the case of Harris v. Bowles, 208 Ala. 545, 94 So. 757. There was no error in giving it to the jury.

Written charge No. 6, refused contestants, falls far short of what is required to constitute undue influence.

The rule attempted to be given the jury in requested charge No. 7, refused contestants, was correctly given the jury by the court in its oral charge, and in other given charges, and the court will not be put in error for refusing it.

On cross-examination of E.D. Acker, an attorney who wrote the will, and a witness for proponent, contestants' counsel asked him the following questions, and obtained the following answers: "Isn't it true that he (testator) was absolutely under the domination of Mr. Burns?" To which he answered, "You might call it that." "I remember he came to Mr. Burns and stayed months and months and Mr. Burns had him looked after in his home." Question: "Whether or not during the last year of his life or last several years of his life he was absolutely under the domination of Mr. Burns?" He replied, "Under his influence." On redirect examination by proponent, witness was asked by counsel: "State what you mean by thinking that Mr. Burns had influence with Mr. Dulaney." Contestants objected. The court overruled the objection, and witness answered: "I mean that Mr. Burns, that Mr. Dulaney had the utmost confidence in Mr. Burns as a man that had been a good friend to him, and that is the kind of friend he was, and he carried him to his home when Mr. Phillips couldn't attend to him for a month or more at a time." Appellants insist that the court committed error here, and cite the case of Miller v. Whittington, 202 Ala. 406, 80 So. 499.

The question and answer of the witness merely gave an explanation of his testimony on cross-examination contestants had the right to have the witness express his opinion as to the domination Burns is stated to have on Dulaney. And, if so, as stated in the Miller Case, supra, they thereby "opened the door for such illegal [if so] evidence. *** The proponent was not improperly permitted to reply with like evidence. Gibson v. Gaines, 198 Ala. 583, 73 So. 929."

Upon the examination of proponent as a witness after contestants had offered evidence accusing him of seeking to influence testator, witness was asked by his counsel: "Did you ever at any time say anything to influence him (testator) about not leaving anything to his kinfolks?" Contestants duly objected, the court overruled the objection, and the witness answered, "Nothing in the world." Contestants assign this ruling for error, and cite the Miller Case, supra. In that case it was held error to allow the following question and answer: "Did you see any inclination or effort on the part of any one to induce Tom Whittington to sign the paper?" Answer: "I did not." It will be noticed that the question related to an "inclination or effort." It did not call for what was said or done. "Inclination" means "a leaning or tendency of the mind, feelings, preferences, or will; propensity; bent; favor; desire; liking." Webster's Dict. Such evidence of "inclination" therefore is patently illegal.

"Effort" is synonymous with "endeavor," "attempt," "essay," "trial," "struggle," "strain." Webster's Dict. This called for an opinion. The two words "inclination" or "effort" were embraced in the same question. This was entirely different from a denial by witness of making any statement to...