Eastis v. Montgomery

• Decision Date: 05 May 1891
• Citation: 93 Ala. 293,9 So. 311
• Parties: EASTIS v. MONTGOMERY ET AL.
• Court: Alabama Supreme Court

9 So. 311

93 Ala. 293

EASTIS v. MONTGOMERY ET AL.

Supreme Court of Alabama

May 5, 1891

Appeal from probate court, Jefferson county; M. T. PORTER, Judge.

Jonathan Felix, and David Montgomery, the executors of the last will and testament of Mrs. Martha Montgomery, having presented her will for probate, a contest was instituted by Mrs. A. C Eastis, a granddaughter of testatrix, on the ground of undue influence. The issue was tried by a jury, who found in favor of the proponents, and the will was thereupon admitted to probate. The court refused to give the following charges requested by contestant: (1) "That if the jury believe from the evidence that, in signing the paper offered for probate as the will of Martha Montgomery, she intended to make the provision therein set forth for her insane daughter but that as to the other provisions of the will she was unduly influenced to make them, then the jury may find the will valid as to the provision made for the daughter Fannie and invalid as to the other provisions of the will." (2) "That if the jury believe from the evidence that Jonathan Montgomery, one of the eight (8) children equally provided for in the paper propounded for probate, managed her affairs for many years; that much of the time he lived alone with her and her insane daughter; that he was her trusted agent; and that she leaned him and trusted him,-that the burden of proof was cast on Jonathan Montgomery to show that the will propounded was not the product of fraud, undue influence, or fear, but was the result of free volition on the part of the testatrix." (3) "That while the law does not presume undue influence from the fact that, when she signed the paper propounded to her as her last will, Mrs. Martha Montgomery was surrounded by the persons who were principally benefited by the will, when the Ellard children and the Hawkins children were not about her, yet this is a circumstance to which the jury may look in passing that the will was the product of undue influence." At the request of proponents, the court gave the following written charges: (1) "There is no evidence in this case of any importunity by J. Montgomery of his mother to induce her to make the will in controversy." (2) "There is no evidence in this case of any threats made by J. Montgomery towards his mother to induce or cause her to make the will in controversy." (3) "That, unless the evidence shows that the will was obtained by moral coercion or by importunity, which could not be resisted by the testatrix, the jury must find the issue in favor of the proponents."

Ward & Johns and Jas. M. Russell, for appellant.

Hewitt, Walker & Porter and E. K. Campbell, for appellees.

COLEMAN J.

This case arose on a contest of the probate of the will of Martha Montgomery. The grounds of contest were (1) that testatrix was of "unsound mind, and not capable of making any legal disposition of her property;" (2) that the executors "procured the making and execution of the same by fraud and undue influence practised by them on the deceased;" (3) that said will was not made and executed according to law. After the close of the evidence "contestant stated she did not insist upon insanity, except to show weakness of mind and susceptibility to being unduly influenced." There was no evidence to show that the will was not formally executed, and we can safely state there is no evidence of fraud or deceit practiced upon testatrix to procure the disposition of the property made by the will. The real and only issue before the jury, in fact, was that of undue influence. The proof shows that testatrix had ten children, eight of whom were living when the testatrix died, and two had died, leaving eight children, when the will was made. One of the living chidren, Fannie, was insane or an imbecile, wholly incapable of providing for herself. Testatrix devised substantially all her property to her living children, making special provision for her imbecile daughter, Fannie, and leaving but nominal gifts to the grandchildren, one of whom is contestant. The will was made in September, 1884, and the testatrix died in October, 1889. Jonathan, an unmarried son, and her daughter Fannie, were living with their widowed mother on her farm at the time of her death, and had lived with her all their lives. Jonathan was her general manager and superintendent, and controlled her business interest without restraint, so far as is disclosed in the evidence. At the time of her death the testatrix was 82 years of age. The evidence conflicted as to the state of her health, the strength of her mind and character, for many years prior to her death; the testimony of contestant tending to show she was in poor health, and was of feeble mind and character, and that of proponents that, considering her age, her health was good, and her character was one of independence in thought and action. By the provisions of the will, seven of the living children, including Jonathan, were provided for share and share alike, and, if the property reached a certain value, the special provision for Fannie was not to take effect, but in that event the eight living children were in all respects made equal. In 1879, five years before the will was made, and ten years before her death, the testatrix conveyed to Jonathan seventy acres of land. There was evidence tending to show that there was an understanding between Jonathan Montgomery and his mother as to his compensation for living with her and taking care of her and Fannie, and managing the farm. There was evidence that, after the will was made, the testatrix, by deed of gift, conveyed to each of the eight legatees twenty acres of land. There was evidence on part of contestant that Jonathan Montgomery was disrespectful and abusive, and ill treated his mother, and had his own way on the farm, and in the management of her business. The evidence for proponents tended to show that he was always kind and careful of his mother's comfort and feelings, and provided well for her and his afflicted sister, and took good care of his mother's property. There is no material evidence in the record to show that any of the legatees had any conversation with the testatrix in regard to the disposition of her property by the will, except the testimony of Jonathan Montgomery. He testified that: "We talked about it several times before she came to make it. I told her, if she wanted to come to town to have her will written, I would bring her the next day." That she requested him to do so, and he brought her to his sister Mary Anderson. That at her request he went for Judge Porter to write the will. He says: "I never made any suggestion to her about the will." Judge Porter's evidence is to the effect that he received his instructions from the testatrix as to how the will should be written; that she dictated to him how her property was to be disposed of; that he made the will as she instructed him, read it over to her, and it was approved and then executed by her. There was evidence tending to show that afterwards she expressed herself satisfied with her will. There was also evidence tending to show that she expressed herself as desiring that her living children should have her property. There was other evidence in the case, but this is deemed a sufficient statement to properly understand the rulings of the court upon the...