Smith v. Smith

• Decision Date: 10 April 1930
• Docket Number: 7 Div. 935.
• Citation: Smith v. Smith, 221 Ala. 56, 127 So. 815 (Ala. 1930)
• Parties: SMITH v. SMITH ET AL.
• Court: Alabama Supreme Court

127 So. 815

221 Ala. 56

SMITH v. SMITH ET AL.

7 Div. 935.

Supreme Court of Alabama

April 10, 1930

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Bill in equity by George Smith against Andrew J. Smith and others to cancel a deed and to sell lands for division.From a decree for complainant, the named defendant appeals.

Reversed and rendered.

Culli Hunt & Culli, of Gadsden, for appellant.

J. M Miller, of Gadsden, for appellee.

GARDNER J.

AppelleeGeorge Smith, one of the heirs at law of Hardy L. and Amanda Smith, filed this bill for a sale of 160 acres of land for division among the heirs as joint owners thereof.Andrew J Smith is a grandson of Hardy L. and Amanda Smith, and asserts title in himself by virtue of a deed to this land executed to him by Amanda Smith on October 17, 1918, and filed for record October 19, 1918.Prior to the execution of this deed, the land here involved had been duly set aside by proceedings in the probate court to Amanda Smith, the widow of Hardy L. Smith, who died in July, 1917, and vesting in said widow absolute title thereto.This was so determined on last appeal, and is not now controverted.Smith v. Smith,216 Ala. 570, 114 So. 192.On a previous appeal, consideration of any question on the merits was not reached.Smith v. Smith,212 Ala. 132, 101 So. 903.

Complainant attacks the validity of the deed to Andrew J. Smith upon the grounds of unsoundness of mind of the grantor and undue influence executed over her by the grantee.The question of mental incapacity is here abandoned, and properly so, as all disinterested witnesses, including the family physician, testify to the soundness and normal condition of the mind of the grantor, Amanda Smith, at the time of the execution of the deed.It may be well to here add that the deed reserved to the grantor a life estate.

Upon the merits of the case, therefore, the charge of undue influence is the only matter left for determination.Andrew J. Smith, the grantee, is about 34 years of age, and had lived with his grandparents practically all of his life, and, upon the death of his grandfather, the grandmother, the grantor, moved into the house with him, and was cared for by him and his wife to the time of the grantor's death in April, 1920.This land was all that was left the widow, and a small pension, but, after the death of Hardy L. Smith, the little business which the widow had to be attended to was looked after by the grantee, her grandson.

Appellees insist, therefore, that confidential relations existed between the grantor and grantee so as to shift to the latter the burden of exculpating himself from the charge of exerting undue influence upon the former, citing Kyle v Perdue,95 Ala. 579, 10 So. 103.But without regard to this question and wherever the burden of proof may be placed, we cannot escape the conclusion that the execution of the deed was not only the free and voluntary act of the grantor, but that it was also in accord with the wishes of the grandfather, who originally owned the property.A year previous, the grandmother had signed a paper expressing her desire that their grandson be given a substantial sum out of the estate in the presence of four disinterested neighbors who witnessed the same.Some of these witnesses state that at that time she told them her husband had intended to make such arrangement in his lifetime, but failed to do so.Other disinterested witnesses testify to having heard both grandparents state they wanted Andrew J. to have what they had at their death for taking care of them.W. J. Alford was a very close neighbor; the lands adjoined.He appears to be wholly without interest in the result of this case.His testimony shows that the grantor confided greatly in him as to these matters, and at her request he went to see about...