Eastis v. Montgomery

• Decision Date: 28 April 1892
• Citation: 11 So. 204,95 Ala. 486
• Parties: EASTIS ET AL. v. MONTGOMERY ET AL.
• Court: Alabama Supreme Court

11 So. 204

95 Ala. 486

EASTIS ET AL. v. MONTGOMERY ET AL.

Supreme Court of Alabama

April 28, 1892

Appeal from probate court, Jefferson county; A. H. BENNERS, Special Judge.

Jonathan Montgomery and others, executors, having presented the last will and testament of Martha Montgomery, deceased, for probate, A. C. Eastis and others, granddaughters of testatrix, instituted a contest. Trial was had to a jury, and from the judgment entered on a verdict sustaining the will contestants appeal. Affirmed.

The grounds of contest were: First, that the said Martha Montgomery, the testatrix, was of unsound mind, and incapable of making legal disposition of her property, at the time of the execution of the said instrument; second, that the said instrument filed for probate was procured by fraud undue influence, etc., on the part of the beneficiaries thereof; and, third, that the will was not executed as required by law. The will was executed in 1884. M. T Porter, now the judge of probate of Jefferson county, was the draughtsman, and he and one McMillan were witnesses to the execution thereof. The testatrix, Martha Mongtomery, died in 1889, at the age of 82 years. The proof shows that Jonathan Montgomery, one of the executors thereunder, lived with his mother, and was the general manager of her affairs; that on the day the will was written and executed he brought his mother to her daughter's, in Birmingham; that, on being told by his mother that she wanted "Mr. Porter" to write her will, Jonathan Montgomery sought "Judge Porter," and brought him and Mr. McMillan to the house of the testatrix's daughter. The will was then written by Porter, as dictated by the testatrix, was read to her by Judge Porter, was duly signed and attested, and she expressed herself satisfied with the will. Several of the children of the testatrix were present at the preparation and execution of the will. The contestants offered evidence tending to show that many years before her death the testatrix had been troubled with some mind affection, and was insane for a while in 1867. There was also testimony on the part of the contestants tending to show that Jonathan Montgomery, one of the proponents, mistreated his mother at various times, and was harsh and abusive towards her, and that he directed the provisions of the will, and unduly influenced his mother to make the provisions recited in said will. On the other hand the testimony of the proponents tended to show that Jonathan Montgomery was always kind and considerate towards his mother, did not mistreat or abuse her, and that the testatrix was, at the time the will was made, and always had been, of sound mind. There was also evidence tending to show that before the will was made the testatrix had expressed a previous intention of making the kind of a will she did make and followed out the desire on her part of leaving all her property to her living children, since the children of both of the deceased daughters, of which were the contestants, had considerable property. The opinion of this court sufficiently shows the rulings of the probate court upon the evidence which were excepted to, and it is unnecessary to notice them in detail in this statement of facts.

Upon the introduction of all the evidence, the contestants requested the court to give the following written charges to the jury, and separately excepted to the refusal of the court to give the charges as asked: (1) "While the existence of confidential relations between the testator and the beneficiaries is not alone, in itself, enough to shift the burden of proof upon the proponents to show that there was not an undue influence exerted upon the mind of the testatrix at the time of the making of the will, yet the existence of confidential relations between the testator and the principal or large beneficiary under the will, 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, employing the draughtsman, selecting the witnesses, excluding persons from the presence of the testator at or about the time of the execution, and the like, will raise up a presumption of undue influence, and cast upon him the burden of showing that it was not induced by coercion or fraud on his part, directly or indirectly." (2) "If the jury believe from the evidence that Jonathan Montgomery managed and controlled the affairs of the testatrix for many years before the making of the will and up to that time, living in the family with her and her insane daughter; that he actively participated in and about the execution of the will, such as procuring the draughtsman, the witnesses, etc.,-then this is sufficient to cast upon the proponents the burden of proving that the will was not the product of undue influence." (3) "The jury is charged that procuring a will to be made by which the testator disposes of his property in a manner different from what he would have done had no improper influence been exercised over him, is sufficient reason for setting aside the will." (4) "The conduct of one in vigorous health towards one feeble in body, even though not unsound in mind, may be such as to excite terror or dread, and to make him execute an instrument, which, if he had been free from such influence, he would not have executed. Imaginary terrors may have been created sufficient to deprive him of his free agency." (5) "I charge you, gentlemen of the jury, in this case, that if you believe from the evidence that Mrs. Montgomery, from the infirmity of age or other cause, was reduced to that condition in which she was under the dominion and control of Jonathan Montgomery; and that from threats, overpersuasion, putting in fear or dread, or any other improper conduct upon his part, she was induced or influenced to execute this supposed will, contrary to what she otherwise would have done,-then the paper is not her will, and your verdict must be for the contestants."

Among the charges which were given by the court to the jury at the request of proponents, and which were separately excepted to by the contestants, were the following: (5) "I charge you, gentlemen of the jury, that it is not a sound proposition of law to say undue influence, such as will vitiate a will, must necessarily proceed from acts of kindness and deceit upon the part of the one supposed to have exerted the undue influence; but that threats, intimidation importunity, undue persuasion, putting in fear or dread, or any other way by which one person acquires dominion and control over another, if proven to have constrained the testatrix to act against her will in executing the paper, will suffice to invalidate it as a will." (8) "What degree of undue influence will vitiate a will depends upon the capacity in other respects of the testator. A man of strong will, whose mind is in its wonted vigor, could not be shown to have been influenced as to wholly invalidate the will as of one whose mind had been weakened by sickness, dissipation, or age. The inquiry in such cases for the courts is, was the testator, from the infirmity of age or other cause, constrained to act against his will to do that which he was unable to refuse by importunity or threats or any other way by which one person acquires dominion and control over another?" (9) "If the jury believe from the evidence that Martha...