Shirley v. Ezell

• Decision Date: 14 January 1913
• Citation: 60 So. 905,180 Ala. 352
• Parties: SHIRLEY v. EZELL.
• Court: Alabama Supreme Court

60 So. 905

180 Ala. 352

SHIRLEY v. EZELL.

Supreme Court of Alabama

January 14, 1913

Appeal from Probate Court, Sumter County; P. B. Jarman, Judge.

Application of J. C. Ezell to probate the will of E. N. Powell. Contest by T. C. Shirley. From a decree admitting the will to probate, contestant appeals. Affirmed.

The oral charge of the court referred to and assigned as error is as follows:

"Gentlemen of the jury, in this case it is shown that the testatrix on the 28th day of October, 1909, executed a will disposing of her property. This she had a perfect legal right to do provided the said will conformed to all the legal requirements. Gentlemen, you have heard the evidence of the two subscribing witnesses, and you are to weigh the same and decide whether or not the will was executed in accordance with the requirements of the law. It is contended in this case that undue influence was exercised over the mind of the testatrix by the plaintiff, and that the will is the result and product of the undue influence exercised over her mind, and not the result of the exercise of her free volition. This is equivalent to an averment that an influence was exercised over the mind of the deceased which destroyed her free agency, and caused her to execute the instrument against her will. You are to weigh this evidence and give it your careful consideration, and decide whether or not such undue influence was, in your judgment, exercised over the testatrix as to make her do what she would not otherwise have done in this disposition of her estate. Now, gentlemen, we come to that part of this case where it is contended by the defendant that the testatrix was in such a mental condition as to be incompetent, disqualified, and unfit to dispose of her property, as she would have done had she been in proper mental condition. The burden of proof is on the defendant to show testamentary incapacity at the time the will was executed. The fact that testatrix made an unequal distribution of her property raises no presumption as to her insanity; and if she was free from undue influence, and no actual insanity existed, she had a right to make such a disposition of her property as her conscience dictated. If testatrix was of sound mind, she could will and dispose of her property as she saw fit, and to whom she pleased. However, if you believe from the evidence that the will was not duly executed, or that undue influence, such as the law contemplated, was exercised over the testatrix, or that she was mentally incapacitated, you should find for the contestant; but if, on the other hand, after carefully considering the evidence, you believe that the will was legally executed, and that the testatrix was not unduly influenced, and at the time of making the will she was in proper mental condition, it will then be your duty to find for the proponent."

The court then gave the form for verdict.

The second exception noted is to that portion of the oral charge above set out beginning with the words "it is contended in this case that undue influence was exercised" and ending with the words "in the disposition of her estate."

The third exception noted is to that part of the oral charge which begins, "Now, gentlemen, we come to that part of this case where it is contended," and ending with the words "at the time the will was executed."

The following charges were refused to the contestant:

(1) "If the jury believe from the evidence that Mr. Ezell occupied a confidential relation to Mrs. Powell, and that he took an active part in the preparation of the will, or employed the draughtsman, or selected and sent for the witnesses to the will, the burden of proof is on him to show by the weight of the evidence, that the alleged will was not procured by fraud or undue influence; and if the jury should not be satisfied in their own minds, from the evidence, that no fraud or undue influence was exerted by Mr. Ezell, directly or through the instrumentality of others, upon Mrs. Powell in the procurement of the making of the alleged will, the jury must find that the will is not valid, and render their verdict for the contestant."

(2) "If the jury shall believe from the evidence that a confidential relation existed between Mr. Ezell and Mrs. Powell, and that Mr. Ezell was active in and about the preparation of the will, or that he participated in the preparation of the same, employed the draughtsman, or sent for the attesting witness thereto, then the burden is cast upon Mr. Ezell to show, by a preponderance of the evidence, that the alleged will was not superinduced by fraud or undue influence, but was the result of a free volition of Mrs. Powell."

(3) "If the jury believe from the evidence that a confidential relation existed between Mr. Ezell and Mrs. Powell, and that Mr. Ezell was active in or about the preparation or execution of the will, or the initiation of proceeding for the preparation of the instrument, or participated in such preparation or the employing of the draughtsman or the selection of the witnesses, then the burden was cast upon Mr. Ezell to show, by a preponderance of the evidence, that the alleged will was not superinduced by fraud or undue influence, but was the result of a free volition of Mrs. Powell. This rule of law is one of public policy, designed to prevent the abuse of certain confidential relations, and to preserve them free from the taint of an overreaching selfishness."

(13) "If thejury believe from the evidence that the deceased, at the time of the execution of the alleged will, was an aged woman, and had a weak mind and memory, although she might not be legally incompetent to make a will, yet the will of such a person ought not to be sustained, unless it appears that such disposition of property has been fairly made and emanated from a free will, without the interposition of others."

Patton & Patton, of Livingston, and ...