Miller v. Whittington

• Decision Date: 30 May 1918
• Docket Number: 4 Div. 738
• Citation: 80 So. 499,202 Ala. 406
• Parties: MILLER et al. v. WHITTINGTON.
• Court: Alabama Supreme Court

80 So. 499

202 Ala. 406

MILLER et al. v. WHITTINGTON.

4 Div. 738

Supreme Court of Alabama

May 30, 1918

On Rehearing, November 14, 1918

Appeal from Probate Court, Barbour County; B.T. Roberts, Judge.

Proceedings for probate of the will of Tom Whittington, propounded by Olin Whittington, and contested by Savannah Miller and others. From judgment admitting the will to probate, the contestants appeal. Reversed and remanded.

McClellan J., dissenting in part.

Exceptions to evidence sufficiently appear from the opinion.

The charges referred to in the opinion are as follows:

Those refused to the contestants:

(4) If the jury believe from the evidence that the deceased at the time of making the will, was an aged man, and had a weak mind and memory, and was afflicted with Bright's disease and hardening of the arteries, then they may look to these facts, along with all the other evidence in the case to determine whether or not he was unduly influenced in signing his will.

(6) It is permissible to inquire whether the provisions of the alleged will as shown by the evidence are just and reasonable, and as bearing on this question the jury may look to the proof of the value of the estate, the pecuniary condition and situation of the contestants, or some or all of them.

(9) If the jury believe from the evidence that, at the time of the execution of the alleged will, T.M. Whittington was an aged man, infirm in body and mind, being afflicted with Bright's disease and hardening of the arteries, which would or did affect his mind, or will powers, you may look to these facts, if they be facts, in connection with all the other evidence in this case, to determine whether or not he was susceptible of undue influence, to determine whether or not the alleged will was the product or result of such undue influence, if any was exerted over him.

(11) The fact that these contestants are heirs at law and nearest of kin to T.M. Whittington, and that Olin Whittington was not an heir at law, and that T.M. Whittington did not give them relatively but very little property by said will although they were nearer of kin, may be considered by the jury, along with all the other evidence in this case, to determine whether or not said alleged will was his free and voluntary act or deed, or was the product of undue influence.

(20) I charge you that if you believe from the evidence that Olin Whittington was not only active in procuring the draft of the alleged will, but was active in procuring or assisting in procuring Mr. Grubbs and Mr. Cox to witness it, then you may look to these facts to determine whether or not said Olin Whittington exercised undue influence over Mr. T.M. Whittington, the testator, in and about the execution of the will.

(5) In determining whether there was undue influence exercised by Olin Whittington, upon or over T.M. Whittington, the jury will consider from the evidence the physical and mental condition of T.M. Whittington at and prior to the time of the execution of the alleged will and the relative position and confidential relation between the parties, if any existed, and the motive of said Olin Whittington, as deducible from interest, and also the natural or unnatural disposition of the property as shown by the evidence.

(C) Whether the free agency of the testator is destroyed or mastered by physical force or mental coercion, by threats which occasion fear, or by importunity which the testator 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 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.

(D) If a testator is given a false impression concerning persons who are the natural objects of his bounty, so that when he comes to make his will he acts upon unfounded beliefs and gives or withholds his bounty in a manner entirely different from what his action would have been had it not been based on false beliefs and opinions deliberately instilled into his mind for the purpose of influencing his will--and if in such a case the testator is not in a position, from any cause, as sickness, age, debility, concealment of the true facts, or other reason, to judge for himself and to deliberate or resist the influences, and the will is the result of them, it is invalid from undue influence.

Charges given for the proponent, also:

(O) Even undue influence cannot of itself defeat or vitiate a will when offered for probate, unless the evidence proves to the satisfaction of the jury the two following points: First, that the influence was in fact exercised; and, second, that this influence by its exercise was effectual in producing the peculiar will offered for probate.

(A) The court charges the jury that, in order to set aside the will of a person of sound mind for having been obtained by undue influence, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence, but must be shown that they were inconsistent with a contrary hypothesis, and the undue influence must be exercised in relation to the will itself.

(B) The court charges the jury that testamentary capacity does not imply a mind wholly unimpaired; and undue influence, to defeat a will, must overpower the will of the testator, must amount to coercion or fraud, and must be tantamount to force or fear, and thus destroy the free agency of the testator.

(N) The influence

which, of itself, will vitiate or defeat a will, must be proved to be undue. Such undue influence is defined as that which compels the testator to do that which is against his will, from fear, the desire of peace, or some feeling which he is unable to resist, and which is tantamount to force or fear.

A.H. Merrill & Sons and McDowell & McDowell, all of Eufaula, for appellants.

George W. Peach, of Clayton, and Jones, Thomas & Fields, of Montgomery, for appellee.

THOMAS J.

The contest of the probate of the will was decided in favor of proponents.

The grounds of contest were: (1) That the writing, purporting to be the last will and testament of T.M. Whittington, deceased, was not duly executed; (2) that at the time of its execution said Whittington was without testamentary capacity; and (3) that at said time said Whittington was under the domination and control of the proponent, Olin Whittington, and the will was the result of undue influence.

The statute fixing the procedure for such a contest provides that--

"A will, before the probate thereof, may be contested by any person interested therein, or by any person who, if the testator had died intestate, would have been an heir or distributee of his estate, by filing in the court where it is offered for probate allegations in writing that the will was not duly executed, or of the unsoundness of mind of the testator, or by any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court, between the person making the application, as plaintiff, and the person contesting the validity of the will, as defendant; and such issue must, on application of either party, be tried by a jury." Code, § 6196.

The statute is silent as to how the issue shall be made up. If the contest was by a bill in chancery, the proponent would file an answer admitting or denying the material allegations of the contest. Code, §§ 6207, 6209; Stephens v. Richardson, 189 Ala. 360, 66 So. 497; Ex parte Colvert, 188 Ala. 650, 654, 65 So. 964. By analogy it would appear that the proponent may, by permission of the court, specifically set out the issues of fact to be tried, by way of replication to a contest filed in the probate court. If such proceedings are prolix, redundant, unnecessary, or improper, the parts thereof transcending the rules of pleading should be stricken on motion. Barnett v. Freeman, 197 Ala. 142, 72 So. 395.

The grounds of contest comprised eleven sections, some of them averring the specific facts on which they rested. This pleading was unnecessarily prolix, and parts thereof could have been stricken on motion; yet it was the issue between the parties, on which the contest was tried, made up under the direction of the court, making the proponent the plaintiff and the contestants the defendants. A general replication thereto on the part of proponent would have put in issue the controverted grounds of objection to the probate. Code, § 5331. However, we will not reverse for the rulings of the trial court made thereon. If there was error in the manner of the making up of this issue, it was not calculated to affect the hearing and the judgment on the proper issues. Barker v. Bell, 49 Ala. 284; 40 Cyc. 1270.

As a witness for proponent, Judge Grubbs had testified that he lived at or near Clayton and the alleged testator lived at Mt. Andrew, and that he had known him for about 25 years. The paper shown witness was identified as that executed by the testator in the presence of witness and of a Mr. Cox, witness testifying that they each signed it in the presence of the other, as the last will and testament of T.M. Whittington, deceased. Proponent then asked witness, "What would you say as to his mental condition?" and the answer was:

"He was of sound mind. He was all right mentally; that is, he had testamentary capacity."

Due objection was made to the question; and exception reserved to the ruling of the court permitting the same, together with ...