King v. Aird

• Decision Date: 17 February 1949
• Docket Number: 6 Div. 793.
• Citation: 251 Ala. 613,38 So.2d 883
• Parties: KING v. AIRD.
• Court: Alabama Supreme Court

38 So.2d 883

251 Ala. 613

KING v. AIRD.

6 Div. 793.

Supreme Court of Alabama

February 17, 1949

Crampton Harris, Arthur D. Shores, and Harris & Brown, all of Birmingham, for appellant.

Jas. W. Aird and Wm. B. McCullough, both of Birmingham, for appellee.

The following charge was given at the request of proponent:

'15. The Court charges the jury that undue influence, to vitiate a will, must have been actually exercised to produce the particular will, and this must be operative at the very time of the execution of the particular paper in controversy as a will; and the burden of proving that such influence was undue, and was operative at the time of the execution of the paper, and caused its execution contrary to the free and independent wishes of the person making the will, is on the contestant, and not on the proponent.'

STAKELY Justice.

This is a contest of a will tried before a jury in the Probate Court of Jefferson County. There was a verdict for the proponent and in favor of the will and a judgment probating the will. A motion to set aside the verdict and judgment was made by the contestant. The court overruled the motion. This appeal is from the ruling on the motion.

The grounds of the contest were the mental incapacity of William Nesbitt to make a will and the undue influence exercised over William Nesbitt on the part of Herbert Stone and Aaron Stone beneficiaries mentioned in the will, in conjunction with agents and attorneys of the beneficiaries and legatees mentioned in the will.

We have examined the testimony in the case with great care and while it is not practical or necessary to set out all of the evidence in accordance with our rule (§ 66, Title 13, Code of 1940, Kahalley v. Kahalley, 248 Ala. 624, 28 So.2d 792; Beasley v. Ross, 234 Ala. 335, 174 So. 764) enough of the evidence and its tendencies should be summarized to give the reader an understanding of the general background of the case.

William Nesbitt, a negro man in his late sixties, was admitted to St Vincent's Hospital on January 4, 1948. According to his doctor 'he had uraemia and was very debilitate.' He died February 15, 1948, while still in the hospital. The alleged will was executed in the hospital on January 7, 1948.

William Nesbitt married twice. Willie Margaret King (the contestant) was a child of the first marriage. She was the only child of William Nesbitt. Both wives were dead at the time of his death, the second wife, Lucy, having died in 1941. Willie Margaret King lives with her husband in New York City. After her mother's death Willie Margaret King lived about a year in Birmingham with her father and his second wife, Lucy, and then went to her grandparents in Atlanta. She was at that time about 14 or 15 years old. She married in Atlanta and moved to New York City in 1926. After she left Birmingham she seldom saw her father. While she came to Birmingham to her father's funeral she did not come to see him during his last illness. The last time she saw him in Birmingham was in 1938 when he was sick and she stopped off to see him on her return from a trip to Hot Springs. At that time she stayed in Birmingham one or two days. She had also come to see him in 1937.

After 1938 she saw her father one more time before he died and that was when he and Aaron Stone went to New York City to see about his property there.

William Nesbitt owned two pieces of real estate. These two pieces of real estate constituted substantially all of his property. One piece of real estate was an apartment house located in New York City, worth about $18,000 and renting for $105 per month. This property in New York City he left in his will to his daughter and her two children, share and share alike. William Nesbitt acquired this property by inheritance from his deceased sister. His daughter Willie Margaret King was the administratrix of that estate and tendencies of the evidence showed that he was dissatisfied with his daughter's handling of the estate. At about that time she took a trip to Europe and tendencies of the evidence further showed that he claimed that she had used funds of the estate to make the trip.

The other piece of real estate was a tract of land of about 9 or 10 acres situated on the west side of Center Street in Titusville in Jefferson County, worth about $10,000. William Nesbitt lived on this property in a little shack. The will describes that part of the tract on which is situated the shack, the cow barn and cow lot and leaves this part of the tract to Adeline Tate. The balance of the tract is left in the will to Herbert Nelson Stone, his wife Aaron Mitchell Stone and William B. McCullough, share and share alike. Household furniture, personal belongings, clothing, etc., were also left to Adeline Tate. The will nominates and appoints James W. Aird (the proponent) as executor of the will.

William W. Nesbitt married his second wife Lucy in 1929. Aaron Stone was a niece of Lucy. When Lucy died in 1941 Aaron Stone and her husband went to live with William W. Nesbitt, at his request, because he did not have anyone to look after him. They lived with him a year when they had to leave on account of the illness of her mother, whom she then had to look after. She went to see William Nesbitt often after she left his home and took the trip with him to New York City in 1943, as aforesaid. They did not stay with Margaret King while in New York City. When William Nesbitt became ill the latter part of 1947, she went to see him every day because he depended on her and needed her help. William Nesbitt on account of his illness went to stay with Aaron Stone and her husband on December 1, 1947, and stayed with them until he went to the hospital on January 4, 1948. She and her husband were very attentive to him while he was at the hospital and went to see him every day.

When Aaron Stone left the home of William Nesbitt, Adeline Tate, who lived nearby became his housekeeper. She kept house for him and looked after him for about 7 or 8 years until he went to stay with Aaron Stone and husband prior to his entry into the hospital. According to her the property left to her in the will was the property which William Nesbitt had promised to leave to her. She testified that Mr. McCullough and Mr. Aird came out and measured the lot left to her while William Nesbitt was in the hospital.

William B. McCullough, an attorney, had been a friend and counsellor of William Nesbitt from 1931 until the time of his death in 1948. During all of this period he had handled all of the affairs of William Nesbitt. Tendencies of the evidence showed that their relationship was cordial and friendly and that William Nesbitt had told him over a period of time that he was going to give him part of his acreage in Birmingham. Tendencies of the evidence further showed that William B. McCullough was called one Saturday evening, January 3rd, to come to the home of Herbert and Aaron Stone to talk to William Nesbitt. At that time William Nesbitt discussed in detail how he wanted to dispose of his property. Accordingly he prepared the first draft of the will which he read over and discussed in detail with William Nesbitt at the hospital. The first draft was changed in accordance with instructions of William Nesbitt. One of these changes was that his New York property should be left to Willie Margaret King and her two children instead of only to Willie Margaret King. Another change that William Nesbitt wanted made was that he wanted the property which was to go to Adeline Tate measured off in order to be sure that the little shack, cow barn and cow lot would be included in the gift to her.

Assignment I. The court was not in error in overruling the motion for a new trial. There was ample evidence, which if believed, justified the verdict of the jury in finding for the proponent and for the will. We cannot affirm that the preponderance of the evidence is so decided as to convince us clearly that the verdict is wrong and unjust. Gulf States Creosoting Co. v. Jones, 241 Ala. 9, 1 So.2d 379; Bell v. Nichols, 245 Ala. 274, 16 So.2d 799.

While there were tendencies of the evidence to show that at times William Nesbitt was of unsound mind, there was evidence to the contrary which strongly tended to show that he was of sound mind and had a sound mind at the time the will was executed. The burden is on the contestant to show incapacity at the time the will was made and insanity prior to that time, unless of a permanent character, raises no presumption of insanity at the time the will was made. Cox v. Martin, 250 Ala. 401, 34 So.2d 463; Tucker v. Tucker, 248 Ala. 602, 28 So.2d 637; Lockridge v. Brown, 184 Ala. 106, 63 So. 524. The physician attending William Nesbitt, witness for the contestant, testified that he was suffering from uraemia and did not have the mental capacity to transact his affairs, but on cross-examination said, 'I don't remember the time he made his will. I didn't even know he had made the will. Now he may have, at that time, had a lucid moment. I won't because I can't answer, I don't know.'

The effort to show undue influence revolves around the actions of William B. McCullough, the Attorney, who is one of the beneficiaries named in the will. There is no effort to show undue influence exercised by Adeline Tate. So far as Aaron Stone and her husband are concerned, the husband called William B. McCullough to come to their home on the evening of January 3, 1948, and Aaron Stone was with William Nesbitt in the room in the hospital when the will was brought in for execution. Nothing further can be said of their acts, unless their attentions to William Nesbitt which the jury could ascribe to affection and devotion, could be regarded as made with evil intent.

The testimony with...