Keeble v. Underwood

• Decision Date: 17 June 1915
• Docket Number: 152
• Citation: Keeble v. Underwood, 193 Ala. 582, 69 So. 473 (Ala. 1915)
• Parties: KEEBLE v. UNDERWOOD.
• Court: Alabama Supreme Court

69 So. 473

193 Ala. 582

KEEBLE v. UNDERWOOD.

No. 152

Supreme Court of Alabama

June 17, 1915

Rehearing Denied July 2, 1915

Appeal from Probate Court, Autauga County; R.L. Faucett, Judge.

Petition by W.J. Underwood for the probate of the will of Martha Underwood, contested by Bertha Hall Keeble. From a judgment admitting the will to probate, contestant appeals. Reversed and remanded.

The following charges are noted in the opinion, aside from those set out, as refused to the contestant:

(5) I charge you that confidential relations exist between two persons whenever one person trusts in and relies on another, and if you believe that Mrs. Underwood trusted and relied upon her son, W.J. Underwood, at the time of the execution of the paper offered for probate, and W.J Underwood was active in and about the preparation of said paper, the law presumes the exercise of undue influence on his part, and casts upon him the burden of rebutting that presumption.

(6) If the jury believes that the instrument offered for probate is the result or product of undue influence exercised by proponent, W.J. Underwood, over his mother, they should find for the contestant.

(1) If you believe from the evidence that at the time of the execution of the instrument offered for probate there existed between Mrs. Underwood and her son, W.J. Underwood, a confidential relationship, in which relationship Mrs Underwood reposed confidence and trust in her said son, that W.J. Underwood is a large beneficiary under his mother's will, and that W.J. Underwood was active in and about the preparation and execution of the will, such as the initiation of proceedings for the preparation of the will, or employing the attorney who drew the will, and that like, I charge you that the law raises a presumption of undue influence exercised by W.J. Underwood over his mother, and casts upon him the burden of showing that the execution of the will offered for probate was not induced by coercion or fraud on his part, directly or indirectly.

Rushton Williams & Crenshaw, of Montgomery, and Eugene Ballard, of Prattville, for appellant.

Hill, Hill, Whiting & Stern, of Montgomery, and Guy Rice, of Prattville, for appellee.

GARDNER J.

This is an appeal from a decree of the probate court of Autauga county, admitting to probate an instrument purporting to be the last will and testament of Mrs. Martha Rebecca Underwood, deceased. The said alleged will was offered for probate by W.J. Underwood, a son of the testatrix, a beneficiary under the will, and also one of the executors.

Appellant, Mrs. Bertha Hall Keeble, a granddaughter of the testatrix, and Mrs. Eula Hall, a daughter of the contestant, filed a contest of said will, alleging two grounds; the first being that testatrix was mentally incapacitated to make a will, and the second that the alleged will was the result of undue influence exercised over her by her son, W.J. Underwood, the proponent. By leave of the court Mrs. Eula Hall was stricken as a party contestant, and the contest was then prosecuted alone by the appellant, who, as above stated, was a granddaughter of the decedent. The jury returned a verdict in favor of the proponent, and decree was duly entered admitting the will to probate. From this decree the appeal is prosecuted, and the only errors relied on for reversal relate to the refusal of the court below to give certain charges requested in writing by the contestant.

We will first take note of that ground of the contest based upon mental incapacity. Aside from what was said by the court in its oral charge to the jury on the question of mental incapacity, the following charges in writing were given by the court at the request of the contestant:

"(8) Unless testatrix, at the time of the execution of the instrument, had mind and memory sufficient to understand the business she was engaged in, to remember the property she was about to bequeath, the objects of her bounty, and the manner in which she wished to dispose of it, I charge you she was without testamentary capacity.

"(9) The court charges the jury on behalf of contestant that, if the jury are reasonably satisfied from the evidence that at the time of making her signature to the instrument propounded for probate in this case, Mrs. Underwood

did not have testamentary capacity to make a will, the verdict must be for contestant, and in this event they must disregard and not consider the inquiry of undue influence."

We are of the opinion that these given charges embraced in substance what was contained in refused charges 2 and 4 upon this phase of the question, and reversible error cannot, therefore, be predicated upon refusal of the same. We have not overlooked the insistence of counsel for appellee that the evidence was insufficient, under the authorities, for the submission to the jury of the question of mental incapacity. Lockridge v. Brown, 184 Ala. 106, 63 So. 524; Murphree v. Senn, 107 Ala. 428, 18 South 264; Pritchard v. Fowler, 171 Ala. 662, 55 So. 147; Watkins v. Yeatman, 66 So. 707; Posey v. Donaldson, 66 So. 662. However, as what we have here said disposes of the ruling in reference to these charges, and the cause must be reversed for error hereinafter noted, there exists no necessity for a determination of that question, for we need not and cannot anticipate that the evidence will be the same upon that question on another trial.

The question considered as of prime importance upon this appeal relates to the refusal of the court to give certain written charges as to the question of undue influence. While the court below submitted that question to the jury, as shown by its oral charge, no effort was made to cover some phases of that feature of the case set out in requested charges, but the question of undue influence was treated merely in a general way. While several charges dealing with the question were requested, none were given upon this subject.

It is now well settled that where a donee occupies to the donor a position of trust and confidence, such as that between a beneficiary occupying a confidential relation and the testatrix, and such donee or beneficiary takes part or exercises some activity in the preparation or in the procurement of the execution of the will, the burden of proof is shifted to the beneficiary to show that the contested instrument was not superinduced by undue influence. Scarbrough v. Scarbrough, 185 Ala. 468, 64 So. 105; Bancroft v. Otis, 91 Ala. 279, 8 So. 286, 24 Am.St.Rep. 904. This is the general rule. However, while the relationship of parent and child is per se confidential, yet it is well settled that it is always presumed prima facie that in all transactions between them the parent is the dominant party and that such are free from undue influence. The mere relationship alone, coupled with activity on the part of the child in securing the preparation of the will, is not sufficient, under the authorities, to shift the burden of proof upon the child in cases of gift by the parent, as we hold that, prima facie, the parent is the dominant spirit in the transaction, and gifts flow naturally from parent to child. One of the foundations of the rule as to presumption of undue influence is the theory that the donor is the weaker party. While the relation of parent and child is per se confidential, yet in view of the presumption, recognized in this state and abundantly supported by authorities elsewhere, that the parent is the dominant spirit, the burden of proof is not shifted upon the mere proof of relationship and activity, on the part of the beneficiary child, in the preparation of the will, and to such cases the general rule as stated in Bancroft v. Otis, 91 Ala. 279, 8 So. 286, 24 Am. St. Rep. 904, does not apply. This question was directly presented in Bain v. Bain, 150 Ala. 453, 456, 43 So. 562, 563, where, in commenting upon charge 1, set out on page 454 of the report of the case (43 So. 562), such charge showing the relationship of parent and child and activity on the part of the son in the preparation of the deed, this court said:

"The facts hypothesized in the charge fell short of making a case of confidential relations between the father and son, such as would shift the burden of proof to the grantee to show that the deeds were voluntarily made"--citing McLeod v. McLeod, 145 Ala. 269, 40 So. 414, 117 Am.St.Rep. 41.

As was said by this court in Hawthorne v. Jenkins, 182 Ala. 392, 62 So. 505, after quoting from Pomeroy on that subject:

"The authorities cited by Mr. Pomeroy are numerous, and amply support the text. They justly distinguish the relation of parent and child, in so far as gifts or grants *** are concerned, from other classes of confidential relations, and they revoke such benefits only where the exercise of actual undue influence is shown. *** The fundamental reason for this distinction is that gifts and benefits flow naturally from parent to child, and are in accordance with the social instincts and the common practice of all mankind"--citing Burton v. Burton, 82 Vt. 12, 71 A. 812, 17 Ann.Cas. 984, and many other authorities.

And again, in same opinion:

"In

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