Kahalley v. Kahalley

• Decision Date: 23 January 1947
• Docket Number: 1 Div. 269.
• Citation: 28 So.2d 792,248 Ala. 624
• Parties: KAHALLEY v. KAHALLEY.
• Court: Alabama Supreme Court

28 So.2d 792

248 Ala. 624

KAHALLEY v. KAHALLEY.

1 Div. 269.

Supreme Court of Alabama

January 23, 1947

Hybart & Chason, of Bay Minette, for appellant.

W C. Beebe, of Bay Minette, for appellee.

The following charge was refused to contestant:

'Charge C:

'The Court charges the jury that whether the free agency of the testator is destroyed or mastered by physical force or mental coercion, by threats which occasion fear, or by importunity which the testator 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 upon the one hand and the liability to 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.'

SIMPSON Justice.

This appeal is from a contest in the circuit court of the will of Salen Kahalley, deceased. Appellant, a son by a first marriage, instituted the contest and lost the case in the lower court.

Testator's wife and their two daughters, who lived at home and worked with the testator in his business, were bequeathed a greater share of the property than appellant, who had lived away from his father since the divorcement of his parents many years previously.

The ground of the contest was undue influence and the first argument for error is that the overwhelming evidence supported the contest and that the trial court should have granted a new trial for this reason.

Consistent with the rule (Title 13, § 66, Code 1940; Ala.Dig., Courts, k 104), we will not undertake a detailed recital of the evidence. We have given it careful study and have concluded that there was no error in refusing the new trial. On the facts disclosed, we think there was sound basis for the jury's decision that the contest had not been sustained.

The fact, if so, that one of the daughters was a favored beneficiary and in confidential relationship with the testator did not alone raise a presumption that the will was procured by undue influence. Lockridge v. Brown, 184 Ala. 106, 63 So. 524; Bancroft v. Otis, 91 Ala. 279 8 So. 286, 24 Am.St.Rep. 904; 66 A.L.R. 228, Note.

The existence of such relationship was a factor for consideration in determining the sufficiency of the evidence to carry the question of undue influence to the jury (68 C.J. 1099, § 919), but 'There must be evidence in addition to the fact of relationship of the active interference of the beneficiary in procuring the execution of the will.' Lockridge v. Brown, supra, 184 Ala. at page 113, 63 So. at page 526; Coghill v. Kennedy, 119 Ala. 641, 666, 24 So. 459.

This activity must be in procuring the execution of the will and more than an activity and interest referable solely to a compliance with or obedience to the voluntary and untrammeled directions of the testator. Jones v. Brooks, 184 Ala. 115, 63 So. 978; Zeigler v. Coffin, 219 Ala. 586, 123 So. 22, 63 A.L.R. 942; Sikes v. King, 224 Ala. 623, 141 So. 555.

The most that can be said of the evidence of the activity of this daughter, who no doubt had her father's confidence, is that she followed the instructions of the testator and his attorney in procuring, at their request, information regarding the dimensions of certain real estate so as to more correctly describe the property in the will which the testator told his attorney he wished to make. This was not sufficient to raise the presumption of undue influence and impose on proponent the burden of proving that the will was not the product thereof.

The principle which controlled the trial court in considering contestant's motion for a new trial is that to make out a charge of undue influence such as will vitiate a will, the contestant must show that an influence was exerted on the mind of the testator which was tantamount to moral coercion and constrained him to do that which was against his will but which from fear, the desire of peace, or some other feeling than affection he was unable to resist. Ala.Dig., Wills, k155(1). We do not think the evidence met this test.

There was some testimony of testator expressing regret that he had changed his will resulting in the unequal division at the importunity of his wife and daughters (contestant was left a substantial bequest), but this was a disputed fact. Even if so, however, this did not justify the conclusion that the jury's verdict was wrong. The pertinent rule was alluded to in Hale v. Cox, 222 Ala. 136, 139, 131 So. 233, 236, where it was pointed out that: 'Though the will was executed by the testatrix in order that he might have peace in his home, and it disposed of property contrary to his desire, yet if the will was executed in the exercise of the testator's free agency and of his own...