Phillips v. Gaither

• Decision Date: 14 January 1915
• Citation: 191 Ala. 87,67 So. 1001
• Parties: PHILLIPS v. GAITHER et al.
• Court: Alabama Supreme Court

67 So. 1001

191 Ala. 87

PHILLIPS v. GAITHER et al.

Supreme Court of Alabama

January 14, 1915

Appeal from Probate Court, Jefferson County; J.P. Stiles, Judge.

Georgia D. Gaither and Arthur A. Adams, as executors named in the will of Virginia Z. Siddons, filed said will for probate, and L.W. Phillips contested same. Judgment for proponents, and contestant appeals. Reversed and remanded.

J.M Chilton, of Montgomery, and W.K. Terry and W.T. Stewart, both of Birmingham, for appellant.

A. &amp F.B. Latady, of Birmingham, for appellees.

SAYRE J.

Our cases make the giving of charge 11, requested in writing by proponents, error; and we are unable to say, upon consideration of the entire record, that this was not prejudicial to contestant or reversible error. On the question of undue influence the charge exacted of contestant too high a degree of proof. McBride v. Sullivan, 155 Ala. 166, 45 So. 902; Moore v. Heineke, 119 Ala 627, 24 So. 374; Torrey v. Burney, 113 Ala. 496, 21 So. 348; Emerson v. Lowe Mfg. Co., 159 Ala. 350, 49 So. 69; Southern Ry. Co. v. Riddle, 126 Ala. 244, 28 So. 422.

Contestant appellant here, complains also of the charge that it required of him proof that the will had been procured by coercion or fraud. In this particular the charge is open to criticism as an illuminating statement of the law to the jury in a case like this. In quite a number of our cases that undue influence which will suffice to set aside a will is spoken of as amounting to, or the equivalent of, coercion or fraud--that is, we take it, undue influence, to vitiate a will, must have an effect upon the testator's mind equivalent to that of coercion or fraud, must, in short, destroy its freedom of choice and action. This is the implication of the expressions used. Coercion of the sort here in question need not be physical duress, it may be moral only; the fraud need not be actual; it may be by construction of law. The disjunctive used in such expressions signifies, not an alternative between unlike things or ideas, but that the two conceptions are substantially equivalent; and, properly understood, they are substantial equivalents, for where a transaction is the result of "moral, social, or domestic force," exerted upon a party, controlling the free action of his will and preventing any true expression of intention, the courts will relieve against the transaction on the ground of undue influence, a species of fraud....