Mindler v. Crocker

• Decision Date: 25 May 1944
• Docket Number: 6 Div. 225.
• Parties: MINDLER v. CROCKER.
• Court: Alabama Supreme Court

18 So.2d 278

245 Ala. 578

MINDLER v. CROCKER.

6 Div. 225.

Supreme Court of Alabama

May 25, 1944

Barber & Barber, of Birmingham, for appellant.

Chester Austin, of Birmingham, for appellee.

FOSTER Justice.

There was a successful contest of the probation of a will. The proponent appeals. There were six grounds of the contest which we will designate pleas, as was done in Coghill v Kennedy, 119 Ala. 641(3), 24 So. 459. The first two raise the question of insanity, the next two of undue influence, and the last two of the proper execution of the will. There was a motion to strike each plea. The court struck the first, and overruled the motion as to the others. Proponent then demurred on the same grounds, and it was overruled.

A plea which is not prolix, irrelevant or frivolous cannot properly be disposed of by a motion to strike, but if it is defective in the matter of substance, the question should be raised by demurrer. Brooks v. Continental Ins. Co., 125 Ala 615, 29 So. 13; Bennett v. Bennett, 224 Ala. 335 336, 140 So. 378. We will therefore only consider the demurrer to the contest raising defects thought to be of substance.

The second plea did not clearly state that the alleged insanity was as of the date of the execution of the will, and the demurrer to it might have been properly sustained. Wear v. Wear, 200 Ala. 345, 76 So. 111(1). But it was treated on the trial as of that date, and such is its implication so that we think there was no injury in overruling the demurrer. Plea No. 3 attempts to allege undue influence, but does not in proper terms. It is in substance that the "instrument is the product and result and influence exercised by John W. Mindler." This was probably meant to say that it was the product and result of undue influence exercised by him, but it did not so allege. Plea No. 4 alleges that testatrix was unduly influenced against contestant (husband of testatrix) at the time of the execution of the will, but does not allege by whom she was so influenced, nor that the will was the product of such influence.

The grounds of demurrer include the contention that it does not allege that the influence of John W. Mindler was not a proper influence; also that only general statements are made in the pleas.

This Court has gone a long way to simplify pleading, and has held that a plea is sufficient as one of undue influence, if it simply alleges that the instrument propounded was the result of undue influence exercised by a named person upon the testatrix. The essentials are that the influence produced the execution of the will, and that it was undue and exercised by a named person. Daggett v. Boomer, 210 Ala. 673, 99 So. 181; Ross v. Washington, 233 Ala. 292, 171 So. 893; Coghill v. Kennedy, 119 Ala. 641, 24 So. 459; Wear v. Wear, 200 Ala. 345, 76 So. 111 (2); Powe v. Payne, 208 Ala. 527, 94 So. 587; Borton v. Borton, 225 Ala. 457, 143 So. 468; East v. Karter, 218 Ala. 366, 118 So. 547.

The first plea was free from objection, Wear v. Wear, supra; Wainwright v. Wainwright, 223 Ala. 522, 137 So. 413, and that was stricken out on motion of proponent. The issue should be made up under the direction of the court on proper pleas specified in the contest as directed in section 52, Title 61, Code of 1940. The only two pleas which went to the jury and which were not objectionable were numbers 5 and 6, denying the execution of the will, and there was no contention on the trial that the evidence was insufficient as to the legal formality in the execution of the will. None of the pleas of undue influence or mental unsoundness that were submitted to the jury properly tendered matter on which proponent should have been required to take issue.

But the question at this point is whether the judgment overruling the demurrer to pleas 3 and 4 was prejudicial error.

We have also gone a long way toward holding that errors in rulings on pleadings may often be cured by the incidents of the trial. See 2 Alabama Digest, Appeal and Error + 1040 (13). Parties to a cause are entitled to know in advance of trial what issues are to be met. But if those issues are stated so as to apprise them of their true nature and substance, and the trial is had as though they were completely stated, and no objection is made on the trial as to the relevancy and effect of the evidence in that respect, and in the charge of the court they are correctly stated to the jury who are clearly informed as to those issues as though the pleading was sufficient; and no surprise is claimed on the trial or injustice done on account of the insufficiency of the pleading, Rule 45, Supreme Court Practice, Code 1940, Tit. 7, Appendix, prevents a reversal. And such was the principle of pleading in will contests before and without Rule 45, supra; Miller v. Whittington, 202 Ala. 406(3), 80 So. 499; Barker v. Bell, 49 Ala. 284.

We do not find any prejudice to appellant. The doctrine of unsoundness of mind was made by the court clearly to refer to the time of executing the will (plea 2). The influence of John W. Mindler as alleged in plea 3 was limited to that which was undue as correctly defined by the trial judge. And the undue influence against contestant in plea 4, as said in the oral charge, must have been the producing cause of the execution of the will and exerted by John W. Mindler. So that the omissions in the pleading were supplied, and it is not contended that the issues as thus explained were not proper issues on such a trial.

Appellant invokes the rule to justify his requested affirmative charge that when there is no demurrer to a plea or replication, which is immaterial, and issue is taken on it, and it is proven, a verdict and judgment for the pleader should follow. Turner v. Williams, 235 Ala. 502, 180 So. 95; Fraternal Aid Union v. Monfee, 230 Ala. 202, 160 So. 529. This upon the theory that defendant took issue on the seventh paragraph of what plaintiff denominated his answer to the pleas of defendant, without demurring to it.

But we think that the issue to be made up under the direction of the court as provided in section 52, Title 61, Code of 1940 does not contemplate formal replications and subsequent pleadings as on a common-law trial, except by permission of the court, as found appropriate. Miller v. Whittington, supra (1). The proponent is there called plaintiff and contestant is the defendant. But there is no field for the operation of the prolonged process of common-law pleading. Barker v. Bell, 49 Ala. 284. Plaintiff calls the instrument an answer, in numbered paragraphs all being the general issue in substance, except paragraph 7, which alleged matter wholly inappropriate as a replication or as the tender of a special issue, and it was ignored on the trial without prejudice to appellant.

A reversal for refusing the affirmative charge on that contention cannot be supported.

Appellant also claims that his request for the affirmative charge as to undue influence (assignment No. 20, plaintiff's refused charge No. 7) should have been given, for that there is no evidence of undue influence, nor evidence of facts which cast on plaintiff any burden to dispel a presumption to that effect. In this contention we concur.

Plaintiff was the only child of testatrix, and that by a former husband. She and defendant, her second husband, were estranged. She was living with her mother and refused to have any communication with defendant for a year or more before the will was executed. She had been married to him a long time (twenty-three years), and by their joint effort had acquired substantial real estate holding,-some fifteen dwelling tenant houses. He first put the title in his name alone. When she discovered it, she had it corrected, but apparently became suspicious of him. She was a business woman until she lost her health some months before she died. She conducted a suburban store in their dwelling while he did a trucking and hauling business. She looked after renting and collecting the rent on the property, and was self-sufficient and independent.

There was evidence of mental unsoundness not now being considered. But it was such as to make it a jury question.

The rule in this State as to a presumption of undue influence and the burden of proof is settled to be that "confidential relations, accompanied with activity of a favored beneficiary in the preparation and execution of a will, raise a presumption of undue influence and cast the burden of proof on the proponent." Raney v. Raney, 216 Ala. 30, 112 So. 313, 316; Jones v. Brooks, 184 Ala. 115, 63 So. 978; Coghill v. Kennedy, 119 Ala. 641, 24 So. 459; Bancroft v. Otis, 91 Ala. 279, 8 So. 286, 24 Am. St.Rep. 904; Zeigler v. Coffin, 219 Ala. 586, 123 So. 22, 63 A.L.R. 942.

All of those essentials need consideration in view of the evidence. First the meaning of activity in the preparation of the will; then the meaning of a favored beneficiary, also the matter of confidential relations as here applied.

Activity must be more than conduct referable solely to a compliance with or obedience to the free and voluntary instructions or directions of testatrix. Zeigler v. Coffin, supra; Sikes v. King, 224 Ala. 623, 141 So. 555; Ritchey v. Jones, 210 Ala. 204, 97 So. 736; Jones v. Brooks, supra. Those cases could be supplemented by many others.

It is also important to consider the question of what is a "favored beneficiary" as the term is used in this connection. It is said in Cook v. Morton, 241 Ala 188, 1 So.2d 890, 892, to be "one who, in the circumstances of the particular case, has been favored over others having equal claim to the testator's bounty. An unnatural discrimination, leading to a natural inference that advantage has been taken by one in position so to do; and shown to have been...