Lewis v. Martin

• Decision Date: 18 October 1923
• Docket Number: 6 Div. 961.
• Citation: 210 Ala. 401,98 So. 635
• Parties: LEWIS ET AL. v. MARTIN.
• Court: Alabama Supreme Court

98 So. 635

210 Ala. 401

LEWIS ET AL. v. MARTIN.

6 Div. 961.

Supreme Court of Alabama

October 18, 1923

Rehearing Denied Dec. 6, 1923.

Appeal from Circuit Court, Jefferson County, Bessemer Division; J C. B. Gwinn, Judge.

Bill by John T. Martin against William H. Lewis and others contesting the probate of the will of Mary Lewis Martin deceased. From a judgment for complainant, respondents appeal. Affirmed.

Appeal from decree overruling demurrer to bill held abandoned by the failure to perfect the same in the Supreme Court before the voluntary and inconsistent procedure in the lower court of the respective parties in adverse interest in subsequently submitting the cause for final decree, and in appealing in due time from such decree.

Trial court's ruling as to witnesses' qualification to testify as to testatrix's sanity will not be reversed unless clearly erroneous.

The grounds of contest are thus stated in the bill:

"The alleged execution of said will by Mary Lewis Martin was obtained by undue influence exercised on the part of William H. Lewis, a contingent residuary legatee of said will, and one of the executors thereof, in this:

"The respondent, William H. Lewis, as executor, was the brother of the testatrix, and for a long period of time, to wit, 15 years preceding her death, occupied a confidential relationship to the said Mary Lewis Martin, managing and controlling her estate as her agent, making loans of her money and collecting the same and the interest thereon; that he procured the execution of said will, selecting the counsel to prepare the same, and the witnesses thereto, excluding the complainant from the presence of testatrix at and about the time of the execution thereof, taking possession of the said will and concealing the fact that said will had been made and executed.

"The said Mary Lewis Martin was, at the time of making said last will and testament, of unsound mind, and incompetent to make said last will and testament.

"The execution of said last will and testament was obtained by misrepresentation or fraudulent statements of facts, and upon said fraudulent misrepresentations or statements the said Mary Lewis Martin relied at the time of the execution of said will.

"Because the property named and described in the said alleged will and testament was not the property of the said Mary Lewis Martin, nor did she own the same, or have any legal right or authority to dispose of the same by will; that all of the said property so attempted to be disposed of by said last will and testament was in truth and in fact the property of the complainant, John T. Martin, who owned the same."

Item 2 of the will is as follows:

"(2) I give, devise and bequeath to my son, George Lewis Martin, one hundred ($100.00) dollars in cash, the same to be his absolutely. I limit this absolute bequest to my said son on account of the immoral, improvident and profligate life he has been and is now living, and his utter disregard of my counsel, advice and wishes and his total lack of consideration for me, his life having been such that I cannot trust him with funds or property to supply his ordinary necessities and comforts of life."

The following charges were given at complainant's request:

"A. It is not necessary that there should be confidential relations between all the beneficiaries and the testatrix. If there is such relation with one of a family, and the will is found to have been procured through his undue influence, it operates against all the family.

"B. If the evidence shows that the will was obtained by moral coercion, or by the importunity which could not be resisted by the testatrix, you must find that issue in favor of the contestant.

"C. It is not the means employed so much as the effect produced which must be considered in determining whether undue influence has contributed to the making of the will, for though the influence exerted over the testatrix was such as if applied under ordinary circumstances or exercised over a person ordinary power of resistance would be regarded as innocent, yet, if in the particular case it resulted in a disposition of property contrary to the testatrix's desire, the influence was undue.

"D. If the jury believe from the evidence that the will makes an unnatural disposition of the property of the testatrix, this fact may be taken into consideration, together with or in connection with all the evidence in the case, in the determination of the issues involved.

"E. The true test as to undue influence is to be found, not so much in the nature and extent of the influence exercised, as in the effect that such influence has upon the person who is making the will.

"F. If the jury believe from the evidence that the instrument offered for probate as the will of Mary Lewis Martin is the result or product of undue influence, exercised by William H Lewis, over his sister, they should find for the contestant, John T. Martin.

"G. The court charges the jury that, if they are reasonably satisfied from the evidence of the existence of a confidential relationship between the testatrix and William H. Lewis prior to and at the time of the making of the will, and that the said William H. Lewis was active in and about the execution and preparation of said will, such as the initiation of proceedings for the preparation of the will, or participation in such preparation, employing the draftsman, selecting the witnesses, excluding persons from the testatrix at or about the time of the execution of the will, concealing the making of the will after it was made, and the like, then a presumption of undue influence arises, and casts on William H. Lewis the burden of showing a severance of the confidential relationship by the interposition of independent and competent advice, or by evidence of other facts sufficient to show that the act of making the will was voluntary on the part of the testatrix, and was not the result of the undue influence of the said William H. Lewis.

"H. Whether the free agency of the testatrix is destroyed or mastered by physical force or mental coercion by threats which occasion fear, or by importunity which the testatrix 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 on the one hand, and the liability of 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.

"I. The court charges the jury that, if they are reasonably satisfied from the evidence of the existence of a confidential relationship between the testatrix and William H. Lewis prior to and at the time of the making of the will, and that the said William H. Lewis was active in and about the execution and preparation of said will, such as the initiation of the proceedings for the preparation of the will, or participation in such preparation, employing the draftsman, selecting the witnesses, excluding persons from the testatrix at or about the time of the execution of the will, concealing the making of the will after it was made, and the like, then a presumption of undue influence arises, and casts on William H. Lewis the burden of showing that the will was not induced by coercion on his part, directly or indirectly.

"K. It is not the means employed so much as the effect produced which must be considered in determining whether undue influence has contributed to the making of a will, for though the influence exerted over the testatrix was such as, if applied under ordinary circumstances, or exercised over persons of ordinary powers of resistance, would be regarded as innocent, yet, if in the particular case it resulted in a disposition of property contrary to the testatrix's desire, the influence was undue.

"L. In considering the question of whether the free agency of the testatrix was destroyed or mastered by a mental coercion or by other means or methods of bringing about a submission of the will of the testatrix to that of the said William H. Lewis, 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.

"N. If the jury believe from the evidence that at the time of the execution of the instrument offered for probate there existed between Mrs. Mary Lewis Martin and her brother, William H. Lewis, a confidential relationship, in which Mrs. Martin reposed confidence and trust in her said brother; that the said William H. Lewis is a residuary legatee under the said will; and that W. H. Lewis was active in and about the preparation and execution of the will, such as the initiation of the proceedings for the preparation of the will, or employing the attorney who drew the will, and the like-1 charge you that the law raises a presumption of undue influence exercised by W. H. Lewis over his sister, Mary Lewis Martin, and casts upon him the burden of showing that the execution of the will offered for probate was not induced by coercion on his part directly or indirectly.

"O. The court charges the jury that, if they are reasonably satisfied of the existence of confidential relations between the testatrix and William H. Lewis with an activity on the part of the said Lewis in and about the execution and preparation of said will, such as the...