Lockridge v. Brown

• Decision Date: 13 November 1913
• Citation: 63 So. 524,184 Ala. 106
• Parties: LOCKRIDGE v. BROWN.
• Court: Alabama Supreme Court

63 So. 524

184 Ala. 106

LOCKRIDGE v. BROWN.

Supreme Court of Alabama

November 13, 1913

Appeal from Probate Court, Lamar County; R.L. Bradley, Judge.

Application by Dock F. Brown for probate of the will of Isabella Brown deceased, to which Julia I. Lockridge filed objections. From a decree admitting the will to probate, contestant appeals. Affirmed.

The fourth interrogatory propounded to Patton was as follows "Have you examined the typewritten instrument attached hereto, and marked 'Exhibit A,' and purporting to be a copy of the last will of said Isabella Brown, deceased? If so, please state whether or not the name of said Isabella Brown, deceased, was signed to said instrument in writing, of which said typewritten instrument, marked 'Exhibit A,' purports to be a copy, and which instrument in writing is hereinafter referred to as the will of said decedent in your presence."

The following charges were refused to appellant: "(1) If the jury believe from the evidence that the witness Clark attested the instrument reported to be the will of Isabella Brown at the request of J.H. Ray, if not at the request of Isabella Brown, then he is not a competent witness to prove the execution of the will.

"(2) If the jury believe from the evidence that J.T. Clark witnessed the making of the mark to the will, and this was done at the request of J.H. Ray, then Mr. Clark is not a proper attesting witness.

"(3) If the jury believe from the evidence that Ray requested Clark to attest to Isabella Brown's mark to the paper then this would not be a request on the part of Mrs. Brown to request Mr. Clark to witness the will."

"(8) The evidence of confidential relationship between the testatrix and the beneficiaries excites the suspicion and jealousy of the court, and casts upon the beneficiary of the will the duty of showing by affirmative evidence the testatrix's capacity, volition, free agency, at the time of the execution of the will. If this is not shown, your verdict should be against the will.

"(9) If the jury believe from the evidence that Dock Brown occupied a confidential relation to Isabella Brown, though he was her son, the burden of proof is on Dock Brown to show, by weight of evidence, that the alleged will was not produced by fraud or undue influence, and if the jury shall not be satisfied in their own minds from the evidence that no fraud or undue influence was exerted by Dock F. Brown directly or through the instrumentality of others upon Isabella Brown in the procurance of the will, the jury must find it is not valid, and render a verdict against the will.

"(10) If the jury should believe from the evidence that confidential relationship existed between Dock Brown and Isabella Brown at the time of the execution of the alleged will, then the burden is cast upon Dock Brown to show by a reasonable preponderance of proof that the alleged will was not superinduced by fraud or undue influence, but was the result of the free volition of Isabella Brown. This rule of law is one of public policy designed to prevent the abuse of such confidential relationship, and to preserve it free from the taint of overreaching selfishness, and if the evidence fails to reasonably satisfy the jury that there was no fraud or undue influence used by Dock Brown or others, then the verdict will be against the will."

Charges 11, 12, 20, 21, and 22 were of similar import to the last two set out.

"(19) If the jury believe from the evidence that, when Mrs. Brown had an attack of la grippe in the spring of 1899, it so impaired her mind that she did not comprehend or know her property, or know the effect of making the will, then the burden of proof is on the proponent of the will to show that she had regained or had been restored to her mental capacity of knowing the property, and knowing the consequence of the will at the time of making the will. If the proponent then has failed to do this, your verdict will be against the will."

"(30) If the jury believe from the evidence that Brown, the proponent, acted as the agent of Isabella Brown, gained her affection and confidence, managing her property, and accompanied her to Detroit to see J.H. Ray in reference to preparing the alleged will, and the said D.F. Brown was present at the time said will was executed, and the said D.F Brown had the said Isabella Brown to execute this will, then the burden of proof is on him to show that he used no undue influence causing her to make the said will; and, if the proof has failed to reasonably satisfy your minds that said D.F. Brown did not use undue influence upon said Isabella Brown, then your verdict must be against the will."

"(32) If the jury believe from the evidence that D.F. Brown had his mother to execute this will, then the burden is upon D.F. Brown to show that he used no undue influence upon the said Isabella Brown in the execution of this will, and if he fails to show this, your verdict must be against the will."

Charge 33 is as follows: "The law treats the right of testamentary dispositions with great kindness; if questioned, it must be on strong grounds."

Tyson, Wilson & Martin, of Montgomery, and J.C. Milner and Walter Nesmith, both of Vernon, for appellant.

John S. Stone, of Birmingham, for appellee.

ANDERSON J.

The record in this case was filed in this court in November 1909, and the cause was several times continued. It was then submitted upon the merits, and upon a motion to strike the bill of exceptions, and no point was made as to the delay in filing the record. The motion to strike the bill of exceptions was sustained, and the case was affirmed by this court. The judgment was then set aside by consent of parties, as well as the submission, and the case was again submitted at a subsequent term upon the merits and upon motion to strike the record because not filed in time. This motion to strike,...