Gaither v. Phillips

• Citation: 75 So. 295,199 Ala. 689
• Decision Date: 12 April 1917
• Docket Number: 6 Div. 420
• Parties: GAITHER et al. v. PHILLIPS.
• Court: Supreme Court of Alabama

75 So. 295

199 Ala. 689

GAITHER et al. v. PHILLIPS.

6 Div. 420

Supreme Court of Alabama

April 12, 1917

Rehearing Denied May 17, 1917

Appeal from Probate Court, Jefferson County; J.P. Stiles, Judge.

Georgia D. Gaither and another propounded for probate the will of Virginia Z. Siddons. There was contest by Lovick W. Phillips with judgment for contestant, and proponents appeal. Reversed and remanded.

The facts sufficiently appear in the opinion here, and on former appeal. The following charges were given for contestant:

(8) The testator must have sufficient capacity to comprehend the condition of his property, his relation to the objects of his bounty, and the scope of the provision of his will, and sufficiently active of memory to collect in his mind without prompting the particulars of the business to be transacted and to hold them a sufficient length of time to perceive their obvious relations to each other, and to be able to form some rational judgment with relation to them.

(13) The true test as to influence is to be found, not so much in the nature and extent of the influence exercised, as in the effect that such influence has upon the person who is making his will.

(17) If you believe from the evidence that the will makes an unnatural disposition of the property, this fact must be taken into consideration in the determination of the issues here involved.

(22) Whether the free agency of the testatrix is destroyed or mastered by physical force or mental coercion, by threats which occasion fear, or by importunity which the testatrix is too weak to resist, or which extorts compliance in the hope of peace is immaterial. In considering the question therefore, it is essential to ascertain as far as practicable the power of coercion on the one hand and the liability of its influence on the other. And whenever through weakness ignorance, dependence, or implicit reliance of one on the good faith of another, the latter obtains an ascendancy which prevents the former from exercising an unbiased judgment, undue influence exists.

(21) The burden of proof means only that the jury must be reasonably satisfied from the evidence.

(23) If the testatrix is given a false impression concerning persons who are the natural objects of her bounty, so that when she comes to make her will she acts upon founded belief, and gives or withholds her bounty in a manner entirely different from what her action would have been had it not been based on false belief or opinion deliberately instilled into her mind for the purpose of influencing her will, and if in such case the testatrix is not in position from any cause, as misrepresentation or concealment of the true facts, to judge for herself, and to deliberate or resist the influence, and the will is the result of them, it is invalid from undue influence.

(24) It is not the means employed so much as the effect produced which must be considered in determining whether undue influence has contributed to the making of the will, for though the influence exerted over the testatrix was such as if applied under ordinary circumstances or exercised over a person of ordinary power of resistance would be regarded as innocent, yet if in the particular case it resulted in a disposition of property contrary to the testatrix's desire, the influence was undue.

(25) If the evidence shows that the will was obtained by moral coercion, or by the importunity which could not be resisted by the testatrix, you must find that issue in favor of testatrix.

(26) I charge you that if you believe from all the evidence in the case Virginia Siddons was induced by improper or undue influence to execute a will different from the will she would have executed but for such influence, then your verdict must be in favor of the contestant.

(28) It is not necessary that there should be a confidential relation between all the beneficiaries and the testatrix; if there is such relation with one of the family and the will is found to have been produced through his or her influence, it operates against all the family.

(29) If you are reasonably satisfied by the evidence in this case that influences are brought to bear upon the testatrix, and that these influences were undue in their nature, and the making of the will was the result of such influence, whereby a part of the family was provided for, to the exclusion of a contestant, and that such contestant was excluded by reason of such undue influence, it would be evidence which, if believed by the jury, would entitle the contestant to a verdict.

(30) The existence of confidential relations between the testatrix and the beneficiaries under the will, or either of them, coupled with activity on the part of the latter in and about the preparation of the will, and its execution, such as initiation of proceedings for the preparation of the will, employing or aiding in the employment of the draftsman, will raise the presumption of undue influence, and cast on such beneficiary the burden of showing to the reasonable satisfaction of the jury that such will was not induced by coercion or fraud on his part, directly or indirectly.

Beddow & Oberdorfer and A. & F.B. Latady, all of Birmingham, for appellants.

C.C. Nesmith and C.A. Avant, both of Birmingham, for appellee.

ANDERSON C.J.

This is the second appeal in this case. See same parties, 191 Ala 87, 67 So. 1001. The law as to what constitutes such undue influence as to avoid a will has been so often declared by this court that a citation of some of the leading cases should suffice. Council v. Mayhew, 172 Ala. 295, 55 So. 314; Mullen v. Johnson, 157 Ala. 272, 47 So. 584; Coghill v. Kennedy, 119 Ala. 641, 24 So. 459; Eastis v. Montgomery, 93 Ala. 300...