First Alabama Bank of Montgomery, N. A. v. Coker

• Decision Date: 08 January 1982
• Citation: 408 So.2d 510
• Parties: FIRST ALABAMA BANK OF MONTGOMERY, N. A., Co-Executor Under the Last Will and Testament of W. C. Adams, Deceased v. Adelia Adams COKER, as Guardian for Vera W. Adams. 80-477.
• Court: Alabama Supreme Court

Page 510

408 So.2d 510

FIRST ALABAMA BANK OF MONTGOMERY, N. A., Co-Executor Under the Last Will and Testament of W. C. Adams, Deceased v. Adelia Adams COKER, as Guardian for Vera W. Adams.

80-477.

Supreme Court of Alabama.

Jan. 8, 1982.

John F. Dillon, IV, Jennie Lee Kelley, of Dillon & Kelley, Alexander City, for appellant.

Thomas Reuben Bell of Bell & Bell, Sylacauga, and Tom Radney of Radney & Morris, Alexander City, for appellee.

TORBERT, Chief Justice.

This is an appeal from a decision of the trial court allowing Vera W. Adams, an incompetent widow, to dissent, by her only child, Adelia Adams Coker, as guardian, from the will of her deceased husband. For the reasons set out below, we reverse.

On August 26, 1978, W. C. Adams died, leaving one child, Adelia Adams Coker, and an incompetent widow, Vera W. Adams. His last will and testament named Adelia and First Alabama Bank as co-executors and named the bank as trustee of the two trusts created by the will. The will consisted of two trusts, providing Vera with a right to one-half of the estate's income for life and making the remainder of the income and corpus available to her at the discretion of the trustee, First Alabama Bank. At the death of Vera, the daughter, Adelia, is to become the income beneficiary of one trust, while the remainder of the estate is to be distributed by a general testamentary power of appointment according to Vera's last will and testament.

Following the death of W. C. Adams, Adelia filed a petition with the probate court seeking letters of administration upon the estate, alleging that the will was void as violating the Rule Against Perpetuities. A number of bearer bonds were also sought by Adelia on behalf of her mother. The trial court held for Adelia and Vera, but this Court reversed, First Alabama Bank of Montgomery v. Adams, 382 So.2d 1104 (Ala.1980), holding that the trusts were valid and that the bearer bonds properly belonged to the estate of W. C. Adams.

Subsequently, Vera was declared incompetent and Adelia was appointed as her guardian. At this point, Adelia, as guardian, filed a dissent from the will. The trial court, after hearing the ore tenus testimony of two of Vera's sisters-in-law, Adelia, and a representative of First Alabama Bank, held that it was in the best interest of the widow to dissent from the will. First Alabama Bank, as executor and trustee, appeals.

The procedure for the filing of a dissent for an insane widow is set forth in Code 1975:

If the widow is insane, or if she be under the age of 18 years at the time the will is admitted to probate, or if she dies after the death of her husband and before the time for her dissent expires, upon a petition filed by her guardian or next friend, or, if dead, by her personal representative, within the time prescribed in section 43-1-16, alleging that it would be to her interest, or, in case of her death, to the interest of her estate to dissent from the will of her husband, the probate court of the county in which the will is probated has authority to declare dissent from such will for her; and upon the filing of such petition, the court must appoint a day for the hearing, not more than 20 days from the filing thereof, and if the widow is insane, or was under the age of 18 years at the time the will was admitted to probate, a guardian ad litem must be appointed for her. If upon the hearing the court is satisfied from the testimony of at least two disinterested witnesses, taken by deposition upon written questions, that it is to the interest of such widow, or, in case of her death, of her estate, to dissent from the will, an order shall be made declaring such dissent. The costs of the proceeding must be paid by the person filing the application.

Code 1975, § 43-1-17.

This section does not give the guardian of the insane widow the right to make an election to dissent. The guardian is merely given the right to petition the probate court for an order allowing such a dissent. The probate court will allow the dissent only if it is satisfied from the testimony of two or more disinterested witnesses that it is in the widow's best interest to dissent from the will. Copeland v. Turner, 273 Ala. 609, 143 So.2d 625 (1962).

In Copeland, this Court set out the factors that should be examined by the trial court to determine what is in the "best interest" of the insane widow. The Court stated:

(I)n determining whether or not it is to the interest or "best interest" of an insane widow to dissent from a will, no hard and fast rule should be laid down. Whether or not her interest will be best subserved by a dissent must be determined from all the facts and circumstances in a particular case. It seems to us that a test which is valuable in one case might lead to a ridiculous result in another case.

So, then we must inquire as to the situation in which (the insane widow) is placed by reason of the provisions of her husband's will and whether it is to her advantage to take under it or to dissent and take under the statute.

273 Ala. at 612-13, 143 So.2d 625. This is the legal standard the trial court should have followed here.

It is the policy of this Court to presume correct the findings of the trial court based upon competent evidence, when the evidence is presented ore tenus. Such findings will not be disturbed on appeal if supported by the evidence or any reasonable inference therefrom, unless they are plainly and palpably erroneous and manifestly unjust. Knapp v. Knapp, 392 So.2d 527 (Ala.1981); Mayo v. Andress, 373 So.2d 620 (Ala.1979); League v. McDonald, 355 So.2d 695 (Ala.1978); Kjelstrom v. First National Bank of Montgomery, 335 So.2d 647 (Ala.1976). ¹ The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment. In such instances where the proof at trial fails to support the material allegations on which the suit is based, the judgment rendered cannot be upheld on appeal. Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala.1981); Mid-State Homes, Inc. v. Cone, 294 Ala. 310, 316 So.2d 333 (1975).

We hold that the evidence was not sufficient as a matter of law to sustain the trial court's finding that it was in the best interest of the widow for the court to authorize a dissent. The two "disinterested witnesses" who testified that it was in Vera's best interest to dissent were both Vera's sisters-in-law who knew little of the facts and consequences of the will. Emma Jean Adams Warren testified that she knew Vera for forty-five to fifty years. When questioned about the estate, she testified as follows:

Q. Are you in general terms familiar with the business affairs of the estate of your late brother, W. C. Adams?

A. No. I don't know too much about it. Because as long as he lived he handled his own affairs. But I'm under the impression that when the will was made by my brother did not read it-

MR. DILLON: Just a minute, please, Your Honor. We would object to her-

THE COURT: Sustain your objection.

Q. Have you seen the list of the assets in his estate?

A. No, I surely haven't.

Q. Are you familiar with the business affairs of Vera?

A. Well, am under the impression that her daughter has been able to meet her needs since she's been in the rest home.

Q. Do you know whether she has any property or not, any assets of her own?

A. I imagine that Crayton left everthing (sic) to her as long as she lives.

Q. Do you know whether she owns anything other than what she may have gotten from him?

A. I do not know.

Q. Do you have an opinion as to whether or not it would be in her interest, Vera W. Adams' interest, to dissent from the will of your brother, W. C. Adams and take what the law would give her as opposed to taking it under that will? That's yes or no. Do you have an opinion as to that?

A. I don't see why she didn't get it all. I'm sure that would have been my brother's way of doing things.

Q. Well, if she was not left all of the property under his will and if she would take a part of his property by dissent from the will, then I'll ask you on that hypothesis do you have an opinion as to whether it would be in her interest to dissent from the will?

MR. DILLON: We object to that, Your Honor, based on supposition not in evidence.

MR. BELL: I believe it's based entirely on the evidence, Your Honor.

THE COURT: I'm going to overrule at this time because we're not operating with a jury. I think I can separate things.

Q. Would you answer?

THE COURT: You may answer.

A. What?

MR. BELL: Would you read that question back?

(LAST QUESTION READ BACK.)

A. Yes.

Q. Would you tell the Court what that opinion is?

A. Well, I can't understand why it was left like it was. I don't see why she couldn't get it all. It's to her advantage to have had it. And my brother would turn over in his grave if he could.

Q. Well, I'll ask you if you think it is in her best interest or to her advantage to dissent from the will and take the part of the property that the law would then give to her as if there had been no will?

MR. RADNEY: She said yes to that.

MR. BELL: I wasn't sure if there was a direct answer.

A. Yes.

Q. Could you explain to the Court your reasons for that answer of that opinion?

A. I guess part of it is better than nothing. I don't know.

....

Q. Is she capable of handling her business affairs at the present time?

A. Well, it belongs to her.

Q. Is she capable?

A. That's her affairs. It is not mine.

Q. Is she in your judgment capable of handling her business affairs?

A. Well, I'm not capable. So I wouldn't comment on her.

Q. From her mental standpoint?

A. Well, you would have to see her and discuss it with her.

Q. Give you your judgment?

A...