Shelton v. Gordon

• Decision Date: 21 April 1949
• Docket Number: 1 Div. 331.
• Citation: 40 So.2d 95,252 Ala. 187
• Parties: SHELTON v. GORDON.
• Court: Alabama Supreme Court

40 So.2d 95

252 Ala. 187

SHELTON v. GORDON.

1 Div. 331.

Supreme Court of Alabama

April 21, 1949

Johnston McCall & Johnston, of Mobile, for appellant.

Caffey, Gallalee & Caffey, of Mobile, for appellee.

SIMPSON, Justice.

This is a contest of the will of Mary B. Jackson by appellant, as the next of kin of testatrix, against appellee, as executor who propounded the will for probate. The contest was rested on three main grounds: (1) the alleged unsoundness of mind of the testatrix, (2) undue influence on the part of appellee and (3) that the instrument was not duly executed. From a verdict and judgment in favor of the proponent, the contestant has appealed.

It is argued for appellant that the court committed reversible error in refusing for the contestant the general affirmative charge, in overruling her motion for a new trial on the ground that the verdict was against the weight of the evidence, the giving of certain written charges for proponent, and the refusal of other special written charges requested by contestant. The case has had the studious consideration of the court, but the conclusion has been reached that there is no meritorious ground on which a reversal can be rested.

The first and third grounds of the contest are manifestly untenable and need but little comment. There was hardly a vague conjecture, if that, of any mental impairment of the testatrix, juxtaposed against the clear proof of her mental soundness, when the will was made; and the evidence was without dispute that the instrument was duly executed as the last will and testament of Miss Jackson. So we will confine discussion to the remaining ground, that the execution of the will was procured by the undue influence of proponent, and to the assignments of error based on the action of the court with reference to the special written charges and in overruling the motion for a new trial on the stated ground.

The proponent, a practicing attorney of the bar of Mobile, was the lawyer, confidential adviser and trusted friend of the testatrix, a resident for many years of the same city, and a spinster in her early sixties when the will was executed in 1936. She died in 1947. As we view the case, there was no evidence of undue influence in fact exerted by anyone to induce the execution of the instrument, but it is considered a jury question was presented on that ground of contest by reason of the confidential relation of the proponent, who prepared the will and by its terms was a favored beneficiary.

The law thought by appellant to be controlling to a reversal in refusing her request for the general affirmative charge and in overruling the motion for a new trial is that confidential relations between testatrix and a favored beneficiary coupled with activity on the part of the latter in and about the preparation or execution of a will, raises a presumption of undue influence and casts upon the beneficiary the burden of showing that the will was not directly or indirectly the product of such influence, and which burden, it is contended, was not sustained. Zeigler v. Coffin, 219 Ala. 586, 123 So. 22, 63 A.L.R. 942; Lewis v. Martin, 210 Ala. 401, 98 So. 635; Smith v. Smith, 174 Ala. 205, 210, 56 So. 949; McElhaney v. Jones, 197 Ala. 303, 312, 72 So. 531; Bancroft v. Otis, 91 Ala. 279, 8 So. 286, 24 Am.St.Rep. 904.

But this statement of principle only means that when the evidence shows this situation to have existed, the party against whom this presumption has been cast has the duty of overcoming it by satisfactory evidence, and failing, the opposing contention will prevail. The burden of proof, as such, however, never shifts during the course of the trial and the duty of substantiating that the will was procured by undue influence rests on the contestant throughout. King v. Aird, Ala.Sup., 38 So.2d 883, 888; Birmingham Trust & Savings Co. v. Acacia Mutual Life Ass'n, 221 Ala. 561, 130 So. 327; Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257.

Another pertinent principle is that, though confidential relations between testator and a favored beneficiary is a factor for consideration in determining the sufficiency of evidence to take the case to the jury on the question of such beneficiary's undue influence over the testatrix, to invalidate the will on such ground there must be evidence of active interference of the beneficiary to procure its execution. Kahalley v. Kahalley, 248 Ala. 624, 28 So.2d 792; Lockridge v. Brown, 184 Ala. 106, 63 So. 524; Fulks v. Green, 246 Ala. 392, 20 So.2d 787.

As was observed in the Kahalley case, supra, 248 Ala. at page 626, 28 So.2d at page 794:

'This activity must be in procuring the execution of the will and more than an activity and interest referable solely to a compliance with or obedience to the voluntary and untrammeled directions of the testator. Jones v. Brooks, 184 Ala. 115, 63 So. 978; Zeigler v. Coffin, 219 Ala. 586, 123 So. 22, 63 A.L.R. 942; Sikes v. King, 224 Ala. 623, 141 So. 555.'

In the light of these governing principles, it will be made manifest by a brief recital of the facts that the refusal to the contestant of the general affirmative charge or the overruling of the motion for a new trial cannot be made a predicate for reversal.

The facts are: On March 16, 1936, testatrix and her sister, Miss Dora Jackson, once residents of Texas but for many years resident in Mobile, Alabama, made mutual wills reciprocally devising and bequeathing their joint property to each other, and providing for residuary devises and bequests should the sister beneficiary be not living at the death of the respective testatrix. Miss Dora Jackson predeceased her sister, whose will is now under contest. There were no next of kin included in either will and the nine residuary beneficiaries, who were bequeathed various properties and sums of money (all but one of considerable value), were attentive and affectionate friends, including a nurse of the two sisters, their who long-time Negro servants, their physician of many years, who was bequeathed a piece of property of very considerable value, and the proponent, who, as stated, was the largest beneficiary. No question was made as to the soundness of mind of Miss Dora Jackson or that she was under any influence whatsoever as regards the making of her contemporaneous will, though it was in exact duplicate as to residuary beneficiaries of the will under contest and proponent occupied the same relation with her as with testatrix. As regards the circumstances surrounding the execution of the two wills, the evidence is without dispute that proponent exerted no activity in their making except to follow the dictates of the two sisters. The wills were prepared in compliance with their directions, in substantial conformity with a memorandum prepared by them and taken by the testatrix to proponent's law office as a guide in their preparation. To sustain the will against the charge of undue influence there were not only the beneficiaries under the will, but disinterested witnesses, who testified to statements by the two sisters, made before the execution of the wills as to their purpose and intention in regard to the disposition of their estate as it was so disposed of, and after the execution as to their complete satisfaction with the manner and method of the dispositions made therein. There were many statements by the two sisters of their purpose to dispose of their joint estate as it was disposed of and of an intention not to leave any of their possessions to their next of kin in Texas, some of whom they had never seen and none of whom they had seen for many years, and with whom, it was testified, the sisters had had some adverse litigation in years past. It may be added that the preponderance of the evidence showed them to have been women of intelligence and strong purpose.

Against this clear and convincing evidence were letters written by the testatrix suggesting some deterioration in mind and health and also evincing an interest in and affection for these Texas cousins and a desire to hear from them, and to see them. There also was a letter in evidence from proponent to one of these second cousins suggesting the cancellation of a proposed visit to testatrix during an illness subsequent to the date of the wills. This letter, however, was subject to two interpretations and if the proponent's explanation be credited, which evidently the jury did, was written at the request of the testatrix and in her interest.

It is clear that the general affirmative charge was not due contestant, nor could the impartial mind possibly conclude that the verdict of the jury was so manifestly wrong and unjust as to warrant our overturning the ruling of the trial court in refusing the new trial.

The remaining insistences of error, now to be considered, relate to the giving of certain charges requested by the proponent and to the refusal of a charge requested by the contestant.

Charge 8 given at the request of proponent reads 'The Court charges the jury that if it is reasonably satisfied from the evidence in this case that any of the bequests or devises made in the instrument propounded...