Park v. Whitfield

• Decision Date: 07 June 1923
• Docket Number: 3 Div. 622.
• Citation: 210 Ala. 18,97 So. 68
• Parties: PARK v. WHITFIELD ET AL.
• Court: Alabama Supreme Court

97 So. 68

210 Ala. 18

PARK v. WHITFIELD ET AL.

3 Div. 622.

Supreme Court of Alabama

June 7, 1923

Appeal from Probate Court, Montgomery County; D. W. Crosland, Judge.

Petition of Willie V. Whitfield and R. M. Vandiver, to probate the will of Sallie P. Vandiver, deceased, with contest by Clara V. Park. From a decree admitting the will to probate contestant appeals. Affirmed.

The following are charges given at proponents' request:

"2. I charge you that the burden of proving to your reasonable satisfaction that Mrs. Sallie P. Vandiver was, when she executed the will in question, under the domination and control of Mrs. Willie V. Whitfield, or members of her family, or persons in her employ, and that said will is the result and product of undue influence exercised by them, or some of them, over the mind of the deceased, and was not the result of the exercise of the deceased's own volition, is upon the contestant, Clara V. Clark, and if she has failed to so reasonably satisfy your minds, then you must return a verdict in favor of the will and declare it to be the last will and testament of Mrs. Sallie P Vandiver.

"3. I charge you that the law presumes that Mrs. Sallie P. Vandiver had mental capacity to make this will, and was free from undue influence, and the burden is upon the contestant, Clara V. Park, to reasonably satisfy you from the evidence in this case that Mrs. Sallie P. Vandiver was unduly influenced in making it, and if you are not so reasonably satisfied, then you must return a verdict in favor of the will, and declare it to be the last will and testament of Mrs. Sallie P. Vandiver, deceased."

"54. Undue influence to vitiate a will must have been actually exercised to produce the particular will, and this must be operative at the very time of the execution of the will, and the burden of proving that such influence was undue, and was operated at the time of the execution of the will, and caused its execution contrary to the free and independent wishes of the testatrix, is upon the contestant, Mrs. Park, and not upon the proponents."

"40. The fact, if it be a fact, that there was a confidential relationship existing between Mrs. Vandiver and her daughter, Mrs. Whitfield, and Mrs. Whitfield sent for the attorney who prepared Mrs. Vandiver's will, does not of itself raise any presumption of undue influence nor does it place upon Mrs. Whitfield or R. M. Vandiver, proponents of the will, the burden of showing that there was no undue influence.

"41. If you believe from the evidence in this case that at the time Mrs. Vandiver executed this will, she sought and obtained independent advice and counsel, and are reasonably satisfied from the evidence that her will was the voluntary act of her mind, then I charge you that you must find in favor of the will."

Charge A, refused to contestant, is as follows:

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

Charge 1, given for contestant, reads:

"If you believe from the evidence that at the time of the execution of the instrument offered for probate there existed between Mrs. Vandiver and her daughter, Mrs. Whitfield, a confidential relationship, in which relationship Mrs. Vandiver reposed confidence and trust in her said daughter, that Mrs. Whitfield is a large beneficiary under her mother's will, and that Mrs. Whitfield was active in and about the preparation and execution of the will, such as the initiation of proceedings for the preparation of the will, procuring the attorney who drew the will, and the like, I charge you that the law raises a presumption of undue influence exercised by Mrs. Whitfield over her mother, and casts upon her the burden of showing that the execution of the will offered for probate was not induced by coercion or fraud on her part, directly or indirectly."

Rushton, Crenshaw & Rushton and Hill, Hill, Whiting & Thomas, all of Montgomery, for appellant.

Steiner, Crum & Weil, of Montgomery, for appellees.

MILLER J.

Mrs. Sallie P. Vandiver, the widow of W. F. Vandiver, deceased, died on April 19, 1922, leaving a last will and testament. Two children survived her, Mrs. Willie Vandiver Whitfield and R. Merritt Vandiver, and one granddaughter, Mrs. Clara V. Park, daughter of her deceased son, Henry F. Vandiver; these three, one daughter, one son, and one granddaughter, daughter of a deceased child, constitute all and are the only heirs of the testatrix.

Mrs. Whitfield, the daughter, and R. M. Vandiver, the son of testatrix, devisees under the will, and named respectively as sole executrix and executor therein, filed petition in the probate court of Montgomery county to probate the will on May 2, 1922. Mrs. Clara Vandiver Park, the granddaughter of testatrix, filed her written contest of the probate of the instrument on May 25, 1922, setting up, first, that the paper writing was not duly executed by testatrix as a last will and testament; second, that Mrs. Sallie P. Vandiver was not of sufficient mental capacity to make a will at the time of the alleged execution of the writing propounded for probate; and, third, that this paper writing was the result of undue influence practiced on Mrs. Sallie P. Vandiver by Mrs. Willie V. Whitfield and members of her family and other persons in her employ.

After all the evidence was introduced on these issues, and after the attorneys concluded their arguments to the jury, but before the court charged the jury, the contestant by her attorney withdrew the ground of contest or plea which set up the mental incapacity of Mrs. Vandiver to make the will. This left before the jury the issues of the execution of the instrument and that of undue influence in obtaining its execution. The jury decided these issues against contestant and in favor of the validity of the will. This appeal is prosecuted by the contestant, Mrs. Park, from a decree of the probate court on the verdict of the jury admitting the instrument to probate as the last will and testament of Mrs. Sallie P. Vandiver, deceased.

Mrs. Vandiver, by this instrument, made many devises and bequests to different relatives and to others. By it she provided for an annuity of $1,800 to be paid to Mrs. Annie V. Vandiver, widow of Henry F. Vandiver, deceased, for her life or as long as she remains a widow and for Mrs. Clara V. Park, daughter of Henry F. Vandiver, deceased, to receive an annuity of $1,500 for life, with the provision that at her death, leaving issue, her children should receive $15,000, and in the event she died without issue the trust of $15,000 was devised to her daughter, Mrs. Whitfield, and her son, R. M. Vandiver. The rest and residue of her estate, real, personal, and mixed, was devised to her two children, Mrs. Whitfield and R. M. Vandiver, share and share alike.

The net value of her estate at the time of the execution of the instrument was estimated to be worth from $250,000 to $275,000 by the witnesses, and the net annual income from it was from $6,000 to $8,000, estimated. R. E. Steiner, a witness for the proponents, was asked the following question on redirect examination over contestant's objection: "Just state approximately the amount of money that Mrs. Vandiver paid out to and for Henry Vandiver." The court did not err in overruling the objections to that question.

R. E. Steiner, on direct examination, testified that he drew the will, went to Mrs. Vandiver's room alone, consulted with her in the presence of no one, received her instructions alone as to drawing the will, and followed her instructions; he was one of the subscribing witnesses to it. He testified that she signed it as her last will and testament in his presence and in the presence of the other subscribing witness, and at her request, in her presence and in the presence of each other, each witness signed it as witnesses.

The contestant, on cross-examination, went into full details as to all that was said by Mrs. Vandiver to her attorney at the time she gave him instructions as to drawing the will. The proof without conflict showed the will was drawn and executed in form required by the statute. The daughter and widow of testatrix's deceased son received less of the principal of the estate under the terms of the will than her other two children; and therefore any evidence showing motive or reason for this inequality was relevant and competent under the issues of mental incapacity and undue influence.

The question above quoted called for facts indicating the reason and motive of the testatrix in making the bequests unequal. The testimony of this and other witnesses showed that Mrs Vandiver had paid out to or for her deceased son, father of Mrs. Park, over $200,000, which had never been paid back by him; and that her other children had been no expense, practically, to her. This testimony indicated the testatrix by the will was taking into consideration the advancements, amounts paid to this son, and was endeavoring to do equal justice between her children, thereby showing her mental capacity to remember, consider, decide, and divide her property justly and equitably between them at the time of the making of the will. The...