Posey v. Donaldson

Citation66 So. 662,189 Ala. 366
Decision Date07 November 1914
Docket Number740
PartiesPOSEY et al. v. DONALDSON.
CourtSupreme Court of Alabama

Appeal from Probate Court, Winston County; John S. Curtis, Judge.

Petition by J.A. Donaldson for the probate of the will of J.G Donaldson, deceased, contested by Ella Posey and another. From a judgment for the proponent, contestants appeal. Reversed and remanded.

The contest was based on testamentary incapacity, and undue influence. The evidence on this issue is sufficiently stated in the opinion. The will was executed January 25, 1913, and the testator died March, 1913, at the age of 77 years. The testator left surviving him a widow, three sons and four grandchildren, children of Britt Donaldson, a deceased son of testator, and who died about 15 years before. The proponent of the will is J.A. Donaldson, one of the surviving sons of testator. By the terms of the will, each of the four granddaughters received $50, the widow received nothing, and the residue of the estate in value about $25,000 was given to the three living sons in equal parts. Two of the four granddaughters are the contestants in this proceeding. The assignments of error present for review several rulings on the evidence, but the main question arises upon the propriety of the action of the trial court in giving to the jury the general affirmative charge for the proponent.

William L. Chenault, of Russellville, and Chester Tubb, of Haleyville, for appellants.

R.L Blanton, of Haleyville, for appellee.

SOMERVILLE J.

The evidence presented on the issue of testamentary capacity showed no more than the great physical weakness of the testator, with increasing mental weakness and impairment of memory, such as was naturally incident to his advanced age. The uncontradicted testimony of numerous witnesses, including some of those offered by contestants, conclusively shows that, at and about the date of his testamentary act, the testator was fully capacitated therefor. So far as this issue was concerned, there was nothing to be submitted to the jury.

On the issue of undue influence, there was no evidence indicative of confidential relations between testator and beneficiaries leading to the dominance of the latter over the former nor was there any evidence of activity on the part of the latter in or about the preparation or execution of the will. The burden of proving undue influence in the procurement of the will on the part of one or more of the persons charged therewith therefore rested affirmatively upon the contestants. Hawthorne v. Jenkins, 62 So. 505; Bancroft v. Otis, 91 Ala. 291, 8 So. 286, 24 Am.St.Rep. 904.

"While of course direct evidence of fraud or undue influence is sufficient to establish those issues, such evidence is rarely obtainable, and the
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12 cases
  • Howell v. Howell
    • United States
    • Supreme Court of Alabama
    • February 8, 1923
    ...... and we need not consider the sufficiency of the evidence as. to whether or not the testator was unduly influenced in. making the will. Posey v. Donaldson, 189 Ala. 366,. 368, 66 So. 662. . . There. was no error in the refusal of charges numbered 11 and 12;. they are "no ......
  • Hale v. Cox, 7 Div. 334
    • United States
    • Supreme Court of Alabama
    • June 27, 1935
    ...... control of testator were circumstances for the consideration. of the jury. Cox v. Hale et al., 217 Ala. 46, 117. So. 465; Posey et al. v. Donaldson, 189 Ala. 366, 66. So. 662. . . The. oral charge of the court followed the announcements of this. court on former ......
  • Cox v. Hale
    • United States
    • Supreme Court of Alabama
    • November 10, 1927
    ...of circumstances, having support in the evidence, warranted the submission of the issue of undue influence to the jury. Posey v. Donaldson, 189 Ala. 366, 66 So. 662. we find no error to reverse in the oral instructions given. We are constrained, however, to hold charges B, C, (16), and (17)......
  • Park v. Whitfield
    • United States
    • Supreme Court of Alabama
    • June 7, 1923
    ...under the issues. Little v. Ennis, 207 Ala. 111, head note 5, 92 So. 167; Gaither v. Phillips, 199 Ala. 695, 75 So. 295; Posey v. Donaldson, 189 Ala. 368, 66 So. 662; Eastis v. Montgomery, 95 Ala. 492, 11 So. 204, Am. St. Rep. 227; Schieffelin v. Schieffelin, 127 Ala. 36, 28 So. 687. H. S. ......
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