Hale v. Cox

• Decision Date: 04 December 1930
• Docket Number: 7 Div. 952.
• Citation: 131 So. 233,222 Ala. 136
• Parties: HALE ET AL. v. COX.
• Court: Alabama Supreme Court

131 So. 233

222 Ala. 136

HALE ET AL. v. COX.

7 Div. 952.

Supreme Court of Alabama

December 4, 1930

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Bill in equity by Norma Cox against Della Hale and others, contesting the will of Johnson B. Hale, deceased. From a decree for complainant, respondents appeal.

Reversed rendered, and remanded.

Undue influence which thwarts testator's intention avoids alleged will.

Grounds of the motion to set aside the verdict and grant a new trial are as follows:

"3. For that the verdict of the jury is contrary to the law and the charge of the court.

"4. For that the court committed reversible error in admitting evidence of statements by testator made years before the making of the will and which was not a part of the res gestae.

"5. For that the court erred and committed reversible error in overruling defendants' objection to the testimony by the complainant of statements made by testator to the effect that testator told her that defendant Della Hale refused to sign a deed to her.

"6. The court committed reversible error in permitting testimony to be offered showing statements of the testator after the will was made.

"7. The court committed reversible error in admitting testimony going to show statements of the testator which was not a part of the res gestae to go to the jury.

"8. The court committed reversible error in allowing the witness LeCroy to testify to statements by the testator in the absence of the defendant Della Hale and all other defendants which occurred more than ten years before the making of the will."

The following charges were refused to defendants:

"1. The court charges the jury, that undue influence which will overturn or defeat a testamentary disposition of property must be of such a character as to overpower the will of the testator, and substitute another's will in its place. It must amount to controlling mental restraint and coercion, destroying the free agency of the testator, in fact, to constitute such undue influence, the will and the wish of the testator must be subordinated and displaced by the superior, dominating will of another. Affection or desire to gratify another's wishes is not that sort of coercion which defeats attempted testamentary disposition. All the better instincts and emotions are left in full play, and are harmless unless the will itself-the power of independent action-is overcome. It ceases to be the will of the ostensible testator only when it is shown to have been brought about by another's superior will."

"14. The court charges the jury that in order to set aside the will of a person of sound mind for having been obtained by undue influence, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by such influence; but it must be shown that they were inconsistent with a contrary hypothesis, and the undue influence must be exercised in relation to the will itself."

"22. The court charges the jury that the fact that Johnson B. Hale the testator may have been afflicted with disease, and it may be admitted, for the sake of argument, that his mind was impaired at the time of the execution of the will, if the jury believes from the evidence that he had the mental capacity to attend to the ordinary duties of life, and that he had mind to remember the property he was about to bequeath, and the object of his bounty, and that his mind was sufficiently strong to know how he wanted to dispose of his property, and no undue influence was exercised over him, the will should stand; and your verdict should be in favor of respondents."

26. The court charges the jury that as between Johnson B. Hale, testator and father, and J. B. Hale, his son, the parent is presumed to be the dominant party, and hence, no presumption of undue influence arises merely from the confidential relation between them. The burden is on the complainant who sets up undue influence in this case to show the natural relations has changed, and the child has become the dominant party to the transaction.

"27. The court charges the jury, that the rule that heirs and heirship are favored operates only in the construction of wills in doubtful cases, and may not defeat the clear intention of testator, nor interfere with his right to dispose of his property as he chooses.

"28. The court charges the jury that the rule that heirs and heirship are favored may not defeat the clear intention of testator, nor interfere with his right to dispose of his property as he chooses."

Charge C, given for complainant, is as follows:

"If the will was executed by testator in order that he might have peace in his home and it disposed of his property contrary to his desire, then the jury should find the issues in favor of the complainant."

Motley & Motley, of Gadsden, for appellants.

Hugh Reed, of Center, and Hood & Murphree, of Gadsden, for appellee.

BROWN J.

This appeal is from the decree of the court, entered on the verdict of a jury, rendered in the trial of an "issue out of chancery" annulling the alleged last will and testament of Johnson B. Hale, deceased. See report on former appeal, Cox v. Hale, 217 Ala. 46, 114 So. 465.

After the trial of the issue involving want of testamentary capacity and undue influence, resulting in a verdict in favor of complainant, the defendant reserved a bill of exceptions, made motion to set aside the verdict and award a venire facias de novo, for errors alleged to have been committed by the court in the jury trial.

In hearing and disposing of a motion, the court of equity sits as a court of review, and the scope of the review is fixed and limited by the grounds of the motion, which should at least be as specific as an assignment of errors on appeal, that the attention of the court may be directed to the matters alleged as error. Karter v. East et al., 220 Ala. 511, 125 So. 655.

Grounds of the motion 3 to 8, inclusive, are not sufficiently specific, and the trial court cannot be put in error for overruling these grounds. Woodruff v. Smith, 127 Ala. 77, 28 So. 736; Williams v. Coosa Mfg. Co., 138 Ala. 673, 33 So. 1015; Nashville, Chattanooga & St. Louis Ry. v. Crosby, 194 Ala. 338, 70 So. 7; Moneagle &amp Co. v. Livingston, 150 Ala. 562, 43 So. 840; Southern Ry....