Fulks v. Green

• Decision Date: 01 February 1945
• Docket Number: 8 Div. 306.
• Citation: 20 So.2d 787,246 Ala. 392
• Parties: FULKS et al. v. GREEN.
• Court: Alabama Supreme Court

20 So.2d 787

246 Ala. 392

FULKS et al. v. GREEN.

8 Div. 306.

Supreme Court of Alabama

February 1, 1945

F S. Parnell, of Florence, for appellants.

Orlan B. Hill, of Florence, for appellee.

The oral charge of the court was in part as follows:

'The Court charges you, Gentlemen of the Jury, that in order for the alleged will of Mrs. Fulks here offered in evidence to be a good and valid will, it must be in writing, it must have been signed by Mrs. Fulks or by some person in her presence

and by her direction, and attested by two witnesses who must subscribe their names thereto as witnesses in the presence of Mrs. Fulks.'

Charges refused to contestants and made the basis of assignments of error are as follows:

A. 'The Court charges you that the evidence is without dispute that confidential relations existed between Mrs Fulks and Lillian Green; that Mrs. Green was active in the execution of the will and this cast the burden of proof on Mrs. Green to overcome by proof the presumption of law that the will was the product of undue influence. The Court charges you that if Mrs. Green has failed to meet this burden then you must find for the contestants and against the will.'

B. 'The Court charges you that, if you believe the evidence you will find for the contestants on the ground that the will was procured by undue influence.'

C. 'The Court charges you that the undisputed testimony shows that the proponent, Lillian Green, was a daughter of the deceased, Sarah Michael Fulks, and that confidential relations existed between them. The evidence further shows without dispute that Lillian Green in the chief beneficiary under the alleged will and that she was active in having the will executed. The Court further charges you that from these facts the law raises a presumption that the will was the result of undue influence and casts upon Mrs. Lillian Green the burden of proving to your reasonable satisfaction that the execution of the will was the free, voluntary, and well understood act of Mrs. Sarah Michael Fulks.'

D. 'The Court charges you that the proof shows confidential relations between proponent and Mrs. Fulks and activity on the part of proponent in the execution of the will. This casts on the proponent the burden of overcoming the presumption of undue influence and the Court charges you that proponent has failed to meet this burden of proof.'

The following charges were given at the request of proponent:

5. 'The Court charges the jury that undue influence to vitiate a will must have been actually exercised to produce the particular will, and this must be operative at the very time of the execution of the will, and the burden of proving that such influence was undue, and was operated at the time of the execution of the will, and caused its execution contrary to the free and independent wishes of the testatrix is upon the contestant, and not upon the proponent.'

6. 'The Court charges the jury that undue influence, to vitiate a will, must have been actually exercised to produce the particular will, and this must be operative at the very time of the execution of the particular paper in controversy as a will; and the burden of proving that such influence was undue, and was operative at the time of the execution of the paper, and caused its execution contrary to the free and independent wishes of the person making the will, is on the contestant, and not on the proponent.'

THOMAS, Justice.

This appeal is from a verdict and judgment in favor of the probate of a will.

The grounds of contest were at the time of the execution of the will the testatrix was not of sound mind nor capable of making such disposition of her property; that testatrix was at the time under the vitiating domination and control of her daughter Mrs. Lillian Fulks Green, the beneficiary and executrix named in the alleged will; that the will was the product and result of such undue influence exercised by said daughter over the mind of testatrix, and not the result of or exercise of her own free will and volition, and the result of misrepresentation on the part of her said daughter, inducing the execution of said will.

The rules that obtain in this jurisdiction are well understood and need not be recited at length. Slagle v. Halsey, 245 Ala. 198, 15 So.2d 740. The requirements of the statute of a valid execution and attestation of a will are correctly stated in the charge of the trial court to the jury. Code 1940, Tit. 61, § 24, and authorities cited. It is not necessary that the attestation be at the personal request of the testatrix. It is sufficient if done in testatrix' presence with her knowledge and consent expressed or implied. Ritchey v. Jones, 210 Ala. 204, 97 So. 736; Lockridge v. Brown, 184 Ala. 106, 115, 63 So. 524.

The general rule is that testatrix is not required to use any particular form or words in requesting the witness to attest the will. 125 A.L.R. 421, Note.

The further rule in this jurisdiction is that, the testator's acknowledgment to the subscribing witnesses that the signature on the instrument is his may be proved by his words, or by his acts, or by circumstances surrounding him and them when subscribing, or by a combination of all three--his words, his acts, and...