Little v. Little

• Decision Date: 15 April 1923
• Docket Number: 6 Div. 799.
• Citation: 209 Ala. 651,96 So. 928
• Parties: LITTLE ET AL. v. LITTLE.
• Court: Alabama Supreme Court

96 So. 928

209 Ala. 651

LITTLE ET AL. v. LITTLE.

6 Div. 799.

Supreme Court of Alabama

April 15, 1923

Rehearing Denied June 14, 1923.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Bill by Richard Harris Little against John Little and another. From a decree for complainant, respondents appeal. Reversed and rendered.

Washington Moody and Foster, Verner & Rice, all of Tuscaloosa, for appellants.

Edgar L. Clarkson, of Tuscaloosa, and R. B. Evins, of Greensboro for appellee.

SAYRE J.

Dr John Little executed his last will and testament containing the following items:

"Second. My son, Richard Harris Little, has received advancements from me during my lifetime and I have made various loans to him from time to time which are now due me and are evidenced by notes and mortgages which amount fully as much as if not more than his distributive share in my estate, and all such advancements and loans and indebtedness and papers I give and bequeath to my said son Richard Harris Little and direct my said executors hereinafter named to deliver to him all such evidences of said indebtedness to him as may be in my possession at the time of my death and to fully receipt and discharge him in full from all liability to my estate; and the cancellation of such debts together with the advancements made him shall be his full and complete share in my estate and he shall not otherwise participate or share in any other part thereof.

"Third. All other property of every kind and character, of which I may die seized and possessed or to which I may be entitled at the time of my death, I give, devise and bequeath to my other two sons, Robert Irving Little, of Tuscaloosa, and Rev. John Little of Louisville, Ky., absolutely and in fee simple share and share alike."

In the fourth paragraph of the will Robert Irving Little and John Little, sons of testator, were appointed executors and their powers defined.

The will was admitted to probate without contest, but within 12 months thereafter, Richard Harris Little, another son, proceeding under section 6207 of the Code, filed the bill in this cause contesting the validity of the will on the grounds of mental incapacity of testator; of "undue influence" exercised by the beneficiaries (by which term we refer to Robert Irving and John, though Richard Harris was named as a recipient of testator's bounty in that he was acquitted of debts to testator); and on the ground of mistake and fraud. No fraud, other than undue influence, is averred, but it is averred that testator's statement that contestant had received loans and advancements to an amount equal to or in excess of what would have been his distributive share in testator's estate was the result of a mistaken estimate on his part of the value of his estate. The judge of the circuit court, sitting as chancellor, expressed at some length his opinion of the case presented by the pleadings and evidence and thereupon found the facts to be as follows:

"Upon consideration of the pleadings and the evidence, the court finds that the instrument filed in this cause purporting to be the last will and testament of John Little, deceased, is null and void; that the execution of same was procured by the exercise of undue influence over the testator by the beneficiaries under said will; that the exercise of this undue influence extended over a considerable period of time and resulted in the execution of a will which expressed the purpose and intention of the two said beneficiaries and not the intention and purpose of the testator; that the statement in the will that Richard Little had received his share of the estate was a mistake made by the testator by reason of the fact that he undertook to state an account between his sons and himself while he was in a weakened physical condition, and this mistake was strongly probative of the weakened mental condition of testator; that the will was executed at the time when the testator was in a weakened mental and physical condition; that this undue influence exerted upon the testator by the beneficiaries under the will who stood in a confidential and fiduciary relation to the testator, caused the execution of the will while in such weakened physical and mental condition."

The decree was that the will be revoked, annulled, and declared void, that the probate thereof be set aside, and that the estate of Dr. John Little, deceased, be administered as required by law. The executors and beneficiaries have appealed.

We have quoted the decree; but we think its conclusions may, for the purpose of the statement we are to make, be correctly and with some advantage epitomized as follows: That testator executed the will at a time when he was in a weakened physical and mental condition and it was the result of undue influence extending over a considerable period of time and exercised by the beneficiaries who stood in a confidential and fiduciary relation to him; that testator's statement that Richard Harris Little had received his share of the estate was a mistake brought about by the fact that he undertook to state an account between his sons and himself while in a weakened physical condition, and this mistake tends strongly to prove his weakened mental condition.

Upon due consideration of the entire record, which, we venture to say, has been unprofitably amplified, the court here, without undertaking to review in detail the evidence, states its conclusions as follows:

Testator went alone to his lawyer on November 29, 1918, and gave instructions concerning the will he desired to execute; on the next day he executed the will, which had been prepared according to his directions, in the presence of four witnesses, officers and employees of the bank in which for many years he had been an officer, holding positions of high responsibility. The testimony of these and numerous other witnesses, who had known testator intimately and well for many years, leaves no doubt in our mind that testator, though far advanced in years, feeling the inroads of the diseases that carried him off two months later, and much depressed by the then recent death of his wife, the companion of a lifetime, had still a clear understanding of the business in whch he was then engaged, remembered his property, the objects of his bounty, and the manner of the distribution he wished to make among them-was, in short, of disposing mind and memory. West v. Arrington, 200 Ala. 420, 76 So. 352; Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec. 150; Council v. Mayhew, 172 Ala. 307, 55 So. 314, where cases are cited.

As for the charge of undue influence it rests upon the technical doctrine of confidential relations-not that contestant appellee, has attempted any strained application of the doctrine, but that the doctrine itself rests upon technical grounds. It is, however, no futile doctrine; nor, on the other hand, as we have heretofore said, is it a doctrine of general and indiscriminate suspicion. Curry v. Leonard, 186 Ala. 666, 65 So. 362; Betz v. Lovell, 197 Ala. 242, 72 So. 500. It is a doctrine of high policy and moves along ascertained paths to definite results. It accomplished results by presuming the probability of undue influence on the part of the dominant party to the relation and imposing upon him the burden of proving that his benefit was conferred by an act of free will on the part of the donor. The relation of parent and child is per se confidential. Noble v. Moses, 81 Ala. 530, 1 So. 217, 60 Am. Rep. 175. But that alone in ...