Johnson v. Armstrong

• Decision Date: 05 January 1893
• Parties: JOHNSON v. ARMSTRONG ET AL.
• Court: Alabama Supreme Court

12 So. 72

97 Ala. 731

JOHNSON v. ARMSTRONG ET AL.

Supreme Court of Alabama

January 5, 1893

Appeal from probate court, Coffee county: B. M. Stevens, judge.

James W. Johnson, as sole devisee and executor under the will of John C. Johnson, deceased, propounded the will for probate. Probate was contested, and, from a decree refusing probate proponent appeals. Reversed.

The contestants asked the court to give the following written charges to the jury: "(1) That insanity is a disease and if the jury are satisfied, reasonably, that the testator was, at any time before the execution of the will, insane then the jury should find against the will, unless the jury are satisfied, by clear and satisfactory proof, that the testator had been, either temporarily or permanently relieved of his insanity, before the execution of the will; and, unless the jury believe that the testator was permanently relieved of the insanity, and they should be satisfied, by clear and satisfactory proof, the will was executed at a time when he was temporarily free from insanity, the jury should find the will invalid. (2) If the jury believe from the evidence that the woman, Hinson, exercised undue influence over the mind of J. C. Johnson, and procured the will made to J. W. Johnson, then they must find for the contestants. (3) If the jury believe from the evidence that the will is the offspring of an undue influence exercised over J. C. Johnson, either by J. W. Johnson or Emma Hinson, in behalf of J. W. Johnson, then they must find for the contestants. (4) If the jury believe from the evidence that the will is the result of an undue influence extended over J. C. Johnson by Emma Hinson, in behalf of the said J. W. Johnson, then they must find for the contestants. (5) Undue influence must be such as in some measure destroys the free agency of the testator, and prevents the exercise of that discretion which the law requires a party should possess, as essential to a valid testamentary disposition of the property. (6) Positive fraud or undue influence is hard to prove; is generally done by proving facts and circumstances to which the jury may look to infer fraud or undue influence." The court gave each of the charges requested, and the proponent separately and severally excepted to the giving of the same.

W. D. Roberts, for appellant.

H. L. Martin, for appellees.

HEAD J.

Appellant James W. Johnson, the sole devisee and executor therein named, propounded for probate what purported to be the will of his father, John C. Johnson. The alleged testator died on the 31st day of January, 1891. The will purports to have been executed on the 20th day of September, 1890. The probate was contested by heirs of the decedent on the grounds, as alleged in the caveat, (1) that the supposed will is the offspring of fraud practised upon deceased; (2) that it is the offspring of an insane delusion in the mind of deceased; (3) that it is the offspring and result of undue influence exerted and exercised over his mind and will; (4) that deceased was not of sound and disposing mind at the time he signed the instrument; (5) undue influence and fraud; (6) undue influence. The verdict was in favor of contestants, and proponent appeals. There are many exceptions to testimony, which must be solved in the light of the general tendency of the whole evidence upon which contestants rely, which is about as follows: Deceased was about 70 years of age at the time of his death. Until 1880 he resided in Henry county, Ala., and had raised a family there, and had accumulated considerable property, worth from fifteen to twenty thousand dollars. His children consisted of five daughters and four sons, the youngest of whom was about 30 years of age at his death. In 1879 he suffered a stroke of paralysis, which some of the testimony tends to show considerably impaired his health and strength, and that thereafter his mind became impaired to such extent that, in the opinion of some of the witnesses, it was unsound. Up to the occurrence of this misfortune he had been a vigorous man, both in body and mind; was a man of moral, upright habits and demeanor, and lived upon terms of affection and friendship with his wife and children, and was prosperous in the accumulation of property. The contestants contended, and introduced a line of testimony to show, that as a result of his impaired condition of body and mind, produced by the paralysis, his moral nature changed, and that he took to his home a woman named Emma Hinson, who, he said, was his illegitimate daughter, and lived in immoral intercourse with her; that, by reason of this conduct, his family ties were broken up, a separation between him and his wife took place, he became estranged more or less from his children in Henry county, and finally, in 1880, he left that county, and moved to Coffee county,-his wife living with one of her married daughters; that not long after he settled in Coffee county the woman with whom it was said he had lived in immoral intercourse went there, and lived with him until he died; that the criminal conduct between them...