Lackey v. Lackey

• Decision Date: 28 October 1954
• Docket Number: 8 Div. 764
• Citation: 76 So.2d 761,262 Ala. 45
• Parties: Lither M. LACKEY v. Jesse J. LACKEY.
• Court: Alabama Supreme Court

Page 761

76 So.2d 761

262 Ala. 45

Lither M. LACKEY v. Jesse J. LACKEY.

8 Div. 764.

Supreme Court of Alabama.

Oct. 28, 1954.

Rehearing Denied Jan. 13, 1955.

Rogers, Howard & Redden, Birmingham, H. G. Bailey, Boaz, for appellant.

Scruggs & Scruggs, Guntersville, and Mack Killcrease, Albertville, for appellee.

STAKELY, Justice.

This is a contest of the will of G. W. Lackey, deceased, by one of his children, Luther Lackey (appellant). The will was executed May 29, 1951. G. W. Lackey died February 23, 1953. The proponent of the will is Jesse Lackey (appellee), another son of G. W. Lackey. The grounds of the contest are, briefly, mental incapacity and undue influence. There was a verdict in favor of the proponent and the will. Motion for new trial was overruled. Hence this appeal.

G. W. Lackey was survived by his widow Della Lackey and by eight children:--Mrs. Dovie Morton, Mrs. Nellie Tillery, Mrs. Mary Pierce, Mrs. Ruth Matthews, Luther Lackey, Jesse Lackey, Fred Lackey, Mrs. C. E. Bice, three children of Earnest Lackey, deceased son of the decedent, two of whom are minors, and June Trammell, a daughter of Eddie Lackey, who was also a deceased son of the decedent. Jesse Lackey was named as executor of the will.

Assignment of error 2. Error is predicated on the action of the court in giving the affirmative charge requested by the proponent on the issue of undue influence. This court has repeatedly held on the question of undue influence that the burden is on contestants, in order to raise a presumption of undue influence, to prove a dominant confidential relationship and undue activity in the execution of a will by or for a favored beneficiary. Hyde v. Norris, 250 Ala. 518, 35 So.2d 181; Wilson v. Payton, 251 Ala. 411, 37 So.2d 499, 500. Appellant takes the position that there was sufficient evidence to raise a presumption of undue influence and hence the question of undue influence was for the jury.

It was said in Wilson v. Payton, supra, that 'It is presumed prima facie that in transactions between parent and child the parent is the dominant party and that they are free from undue influence, and in such cases the burden is upon contestant to show that time and circumstances have reversed the order of nature, and that the dominance of the parent has been displaced by subservience to the child.' Hawthorne v. Jenkins, 182 Ala. 255, 62 So. 505, Ann.Cas.1915D, 707. The proof in the case at bar showed that when the decedent executed the will of May 29, 1951, he was 86 years and 10 months old. His son Jesse at that time had been a partner in the mercantile business with his father, which was operated at Boaz, Alabama, since January 1, 1945. Jesse Lackey was an active figure not only in the mercantile business but in aiding in the operation of the farms of his father which aggregated about 1,000 acres. There are many circumstances which tend to show that the father was still the dominant figure as, for example, when he determined the price which should be required when timber off of some of his land was sold, but without going into detail, it may be that there was evidence from which the jury could infer that the younger man had become the dominant party as between the two, because of his greater activity in the business and his greater physical vigor. This leaves us to a consideration of the activity of Jesse Lackey in and about the preparation and execution of the will and whether it could be said that he was a favored beneficiary.

The evidence is voluminous and we cannot undertake to set it out in detail, but, in summary, it showed without dispute that D. K. Searcy, who was a witness for the proponent, had been the banker of G. W. Lackey practically all of the time since 1913. It is without dispute that several months before the will was made, G. W Lackey came to him and wanted him to write a will. Mr. Searcy suggested that G. W. Lackey get an attorney to prepare the will. Mr. Lackey asked Mr. Searcy what attorney to get and Mr. Searcy named over several attorneys and when the name of Mr. Mack Killcrease was called, Mr. Lackey said that he was the attorney whom he wanted to be called.

Before G. W. Lackey became ill in May 1951 he went to town every day and sometimes twice a day. In the early part of May 1951 and on the first day that his father did not come to town, Jesse went to see his father and he told Jesse to get Mr. Sercy to come over, that he wanted to make a will. At this time Mr. Lackey asked Jesse, 'I want to know if you will take care of your mother?' and he further said, 'Somebody is going to have to do it and it looks like you are the only one that is going to do it.' Jesse told his father that as long as he had a dollar, he would look after his mother. In this conversation Jesse did not say anything to his father about the will and did not say anything to him about how the will should be made. Jesse did not know that his father had had a previous conversation with Mr. Searcy with reference to the will.

After Mr. Searcy was informed by Mr. Lackey that he wanted to make a will, he called Mr. Killcrease over the telephone and asked him to come over to Boaz to write the will with the result that Mr. Killcrease came to Boaz and in the company of Mr. Searcy went to see Mr. Lackey. There were four discussions on different occasions with reference to the will. On the first day that the will was discussed, Jesse Lackey not being present, Mr. Killcrease in the presence of Mrs. Lackey and Mr. Searcy talked with Mr. Lackey about the will and took notes from which to draft the will. Mr. Lackey told Mr. Killcrease what to put in the will and calling the name of each child, told him what he wanted each child to have. Mr. Killcrease suggested that a tax consultant be called and he suggested a Mr. Newby, which was satisfactory to Mr. Lackey. No will was made on that first day, Mr. Killcrease doing no more than making a memorandum of what Mr. Lackey wanted. Mr. Lackey expressly told what he wanted June Trammell to have and suggested the forfeiture clause in the event of the contest of the will.

On the second visit the tax expert, Mr. Henry B. Newby, went to Mr. Lackey's home with Mr. Killcrease and Mr. Searcy. No will was made at this second conference. In this conference the effect of estate taxes was discussed and suggestions were made as to how taxes could possibly be saved. Mr. Newby then suggested that the property be appraised. Mr. Lackey discussed the debts which were owed to him by various children and their husbands and wives. Mr. Newby then suggested that a list of the accounts of the children who were then living be made. No one suggested to Mr. Lackey anything about what he ought to put in his will. This is the only conference when Jesse Lackey was present, but he made no statement as to what to be put in the will. He came and went to his father's home in a separate car. On this second occasion Mrs. Lackey was present and also Mr. Searcy. On this occasion Mr. Newby told Jesse Lackey to get up the accounts of the various children with their father and to obtain appraisals of the land belonging to Mr. Lackey. None of the accounts of the children had been paid and it was expressly understood that none of the accounts were expected to be paid.

On the day of the third conference those present were Mr. Searcy, Mr. Killcrease and Mr. and Mrs. Lackey. On this day Mr. Killcrease brought a rough draft of the will which was read to Mr. Lackey. When the will was read to Mr. Lackey, Mr. Lackey wanted the description of the property changed in several respects, naming the description which he wanted Mr. Killcrease to use. After receiving the corrected descriptions, Mr. Searcy and Mr. Killcrease went to the bank of Mr. Searcy, where Mr. Searcy attempted to retype the will. The will was drawn exactly as Mr. Lackey had told them. However there were typographical errors, misspelled words and erasures in the will. Nevertheless the will was taken back to Mr. Lackey's home where the will was read to Mr. Lackey and executed by Mr. Lackey with the idea that Mr. Killcrease would recopy the will as soon as possible in order to eliminate typographical errors, misspelled words and erasures. The only ones present when the will was signed were Mr. Searcy, Mr. Killcrease and Mr. and Mrs. Lackey.

On the day of the fourth conference on May 29th 1951, when the will in its final form was duly executed, the only ones present were Mr. Killcrease, Mr. Searcy and Mr. and Mrs. Lackey. Before execution of the will it was read to Mr. Lackey and he expressed his satisfaction with it, stating that that was what he wanted. As we have said, the only change between the May 29th will and the previous will was a matter of form in order to correct typographical errors, misspelled words and erasures to produce a neater instrument.

It appears from the foregoing statement of the evidence that Jesse Lackey made no suggestion to his father as to what lawyer should be chosen to draft the will. He was present at only one of the four conferences which were had with respect to the will and he was at that conference for the purpose of furnishing a statement of his father's accounts with the various children because he kept the books of his father and was familiar with these accounts. He was also asked to secure appraisals of the various properties for the benefit of the tax expert. There was no proof whatever that he made any suggestion as to how the will should be made or what bequests should be made either to himself or any other child of the deceased. Mr. Lackey had the advice and counsel of his banker, of an attorney of his choice and of a tax consultant. He told them exactly what he wanted done with his property, named the objects of his bounty and expressed satisfaction with the will after it had been read to him. We, therefore, do not see how it can be said that there was any undue activity on the part of Jesse Lackey in procuring...