Jones v. Brooks

• Decision Date: 18 December 1913
• Citation: 184 Ala. 115,63 So. 978
• Parties: JONES v. BROOKS.
• Court: Alabama Supreme Court

63 So. 978

184 Ala. 115

JONES v. BROOKS.

Supreme Court of Alabama

December 18, 1913

Appeal from Probate Court, Russell County; H.T. Benton, Judge.

Petition by J. Estes Jones for the probate of the will of Mary E Jones, his wife, with contest by Rosa E. Brooks. From a decree denying probate, petitioner appeals. Reversed rendered, and remanded.

The contestant is described as a sister and sole heir at law of the deceased testator, and declares that, at the time of the making of the will, testator was desperately ill with a fatal malady, and that by virtue of the influence of the same she was not of sound mind and not capable of making a will. The other grounds alleged are that petitioner was the husband of testator, exerted undue influence over her by virtue of the relationship, and further that the will was executed at a time when she was under duress and fear of said petitioner. An issue was made up resulting in a judgment denying probate. The facts sufficiently appear in the opinion.

C.E Battle, of Columbus, Ga., and Evans & Parrish, of Montgomery for appellant.

Glenn & De Graffenried, of Seale, for appellee.

ANDERSON J.

Section 6172 of the Code of 1907, in making certain requirements as to wills, among other things provides that the instrument must be attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator. The will in question was so attested by Carrie R. Rutledge and Mrs. Matthews, and it matters not that the other two witnesses, Dr. Hendrick and W.T. Rutledge, signed their names when not in the presence of the testatrix, as this would not impair the validity of the will. Conoly v. Gayle, 61 Ala. 116.

It was held in the well-considered case of Bancroft v. Otis, 91 Ala. 279, 8 So. 286, 24 Am.St.Rep. 904, which has been often followed and cited, that, upon the contest of a will, the contestant does not place the burden of proof upon the beneficiary thereunder of showing that the act was voluntary, and did not result from undue influence, by merely showing a confidential relationship between the parties, but he must go further and produce evidence tending to show active interference on the part of the beneficiary in procuring the execution of the will. Hutcheson v. Bibb, 142 Ala. 586, 38 So. 754; Eastis v. Montgomery, 95 Ala. 486, 11 So. 204, 36 Am.St.Rep. 227; s.c., 93 Ala. 293, 9 So. 311; Mullen v. Johnson, 157 Ala. 262, 47 So. 584; Lockridge v. Brown, 63 So. 524; Scarbrough v. Scarbrough, 64 So. 105. The activity, however, upon the part of the beneficiary, in order to cast the burden of proof upon him, must be more than an activity and interest referable solely to a compliance with or obedience to the free and voluntary instructions or directions of the testator. Mullen v. Johnson, supra; Eastis v. Montgomery, supra.

Applying the foregoing rule to the case at bar, we are of the opinion that the only activity or interest shown by this contestee was in attempting to get the testatrix to sign a certain paper prepared by him at her request, and after repeated suggestions from her that she wished to make her will leaving him all of her property, and after she had repeatedly expressed a desire and intention to will him her said property to divers and sundry presons. It also appears that after the paper was written by this contestee and was shown, or handed, to his wife, she deemed it insufficient, and for that or other reasons declined to sign it; that he did not urge or insist upon her signing it, but immediately destroyed it. It may be true that he brought the scrivener of the present will to the house, ...