Higginbotham v. Higginbotham

• Decision Date: 11 April 1895
• Citation: Higginbotham v. Higginbotham, 106 Ala. 314, 17 So. 516 (Ala. 1895)
• Parties: HIGGINBOTHAM ET AL. v. HIGGINBOTHAM.
• Court: Alabama Supreme Court

17 So. 516

106 Ala. 314

HIGGINBOTHAM ET AL. v. HIGGINBOTHAM.

Supreme Court of Alabama

April 11, 1895

Appeal from probate court, Blount county; Tyre H. Davidson, Judge.

Proceedings by Kitty Higginbotham against A. L. Higginbotham and another as executors of the will of W. H. Higginbotham, deceased, to contest the will.From a judgment for the contestant, the defendants appeal.Reversed.

This was a proceeding to probate the will of W. H. Higginbotham in the probate court of Blount county, Ala., and was propounded for probate by the appellants, A. L. Higginbotham and Pinckney W. Higginbotham, who are sons of the deceased and the executors named in the will, and who are also devisees under said will.The contestant was Kitty Higginbotham, the appellee, who was the daughter of the deceased.The contest was made upon the ground of fraud and undue influence by the proponents and Mrs. Mary Higginbotham the wife of the testator.The tendency of the evidence is sufficiently stated in the opinion.In his general charge to the jury, the court, among other things, instructed them as follows: "Suppose that, while the testator and his daughter, Miss Kittie, were not at a good understanding, and that the proponents, or their mother, took advantage of this difficulty, and got the testator to make his will so that the daughter would be left out, thereby destroying his will, this would be undue influence; and, if the will was executed under this undue influence, your verdict will be for the contestant."The proponents duly excepted to this portion of the court's oral charge, and also separately excepted to the court's refusal to give each of the following written charges requested by them: (1)"If the jury believe the evidence, their verdict must be in favor of the validity of the will in this case."(2)"The influence necessary to vitiate a will must amount to force and coercion, destroying the free agency of the testator.It must not be the influence of affection and attachment; it must not be the mere desire of gratifying the wishes of another; but it must be such as to induce the mind of the testator, and coerce it into submission to that of another; and there must be proof that the will was obtained by this coercion, by importunity which could not be resisted."(3)"The testimony of the attesting witnesses and those persons present at the time of the execution of the will is entitled to special weight on the question of undue influence and the sanity of the testator."Upon a verdict of the jury, in which the issues were found in favor of the contestant, judgment was rendered accordingly.The proponents appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

Emery C. Hall and Dickinson & Darden, for appellants.

McCLELLAN J.

The evidence tends to show that up to within a year of making his will it was the intention of the testator to make some substantial provision therein for the contestant,...