Smith v. Smith

• Decision Date: 02 August 1985
• Citation: 482 So.2d 1161
• Parties: Ray O. SMITH v. Kenneth SMITH, Diane Anderson and Faye Drew. 83-1404.
• Court: Alabama Supreme Court

Page 1161

482 So.2d 1161

Ray O. SMITH v. Kenneth SMITH, Diane Anderson and Faye Drew.

83-1404.

Supreme Court of Alabama.

Aug. 2, 1985.

Rehearing Denied Jan. 17, 1986.

W.E. Garrett, Atmore, for appellant.

J. Milton Coxwell, Jr. of Coxwell & Coxwell, Monroeville, for appellees.

ADAMS, Justice.

This appeal arises out of a will contest in the Circuit Court of Monroe County, wherein the jury found that the proponent of the will, Ray O. Smith, had exerted undue influence over the testatrix, Zadie Smith, and, therefore, that the instrument was not her last will and testament. We reverse and remand.

Zadie Smith lived with her brother Ezra Smith in Mexia, Alabama. Much of Zadie's adult life was dedicated to the care of her brother Ezra. According to the testimony at trial, Zadie did not drive, so her brother Bernie Smith bought her groceries, drove her places when she had business to attend to, and generally assisted her in any way possible. Bernie died in May of 1972. Ray O. Smith, Zadie's nephew, had been cutting the grass for Zadie before Bernie died, and, subsequent to Bernie's death, Ray began to stop by regularly, on Tuesdays and Fridays, to help Zadie and Ezra. He bought their groceries, chopped wood, and drove Zadie around, as Bernie had done.

On August 1, 1972, Zadie went to Monroeville to see Attorney Wendel C. Owens about the preparation of her will. Owens drew up the will, and Zadie went over it and signed it. In the will, Zadie directed that her estate go to Ezra, but that if he should predecease her, then the estate was to go to her nephew, Ray O. Smith. Zadie gave the will to Ray and told him to put it away for safe keeping.

Some time after the execution of the will, Zadie added Ray's name to her bank accounts. After Ray got her house wired for electricity, Zadie gave Ray money to pay the electric bills.

Ezra died in 1980, and some time thereafter Zadie went to live with Ray and his wife in Goodway, Alabama. Zadie lived with Ray until her death on July 14, 1983.

Ray Smith offered the will for probate on July 20, 1983, in the office of the Probate Judge of Monroe County. The contestants, appellees herein, filed a contest, alleging faulty execution, lack of testamentary capacity, and undue influence on the part of Ray Smith. The contest was transferred to the Circuit Court of Monroe County, where summary judgment was entered in favor of Ray Smith with regard to the faulty execution and mental capacity issues, and the case was tried solely on the undue influence issue. Counsel for proponent Ray Smith made a motion for a directed verdict at the close of all the evidence, which was denied by the court, and the case went to the jury. The jury returned a verdict which stated that the instrument was not the last will and testament of Zadie Smith. Proponent filed this appeal after his motion for judgment notwithstanding the verdict was denied.

The only issue for our review is whether there was sufficient evidence of undue influence to allow the court to deny proponent's motion for directed verdict and submit the case to the jury.

Regarding will contests, this Court has stated that, in order to survive a motion for a directed verdict, the contestant must present a scintilla of evidence that the favored beneficiary was unduly active in procuring the will. Rule 50(e), A.R.Civ.P., Bardin v. Jones, 371 So.2d 23 (Ala.1979); Rabon v. Rabon, 360 So.2d 971 (Ala.1978). In Arrington v. Working Woman's Home, 368 So.2d 851 (Ala.1979), this Court stated further that:

The scintilla rule is not satisfied by speculation. Rota v. Combs, 267 Ala. 50, 99 So.2d 692 (1957). Moreover, evidence to support undue influence must provide at least a reasonable inference, rather than mere suspicion. Locke v. Sparks, 263 Ala. 137, 81 So.2d 670 (1955).

368 So.2d at 854.

This precise issue was addressed by this Court in Jackson v. Davis, 398 So.2d 242 (Ala.1981), wherein we were presented with facts remarkably similar to those in the instant case. In Jackson, the testator had been living with his brother, Alton Davis, until early July 1978, at which time he moved in with his sister Irene and her husband. Irene cared for him, buying his food, cooking for him, feeding him, doing his laundry, and tending to his personal needs. She also arranged for his transportation when necessary. Although his physical condition was weakened due to lung cancer, there was testimony that this did not affect his mind; that he knew what he wanted and was determined to get it; and that his mind was "very good" at the time the will was executed. He signed the will in August of 1978, nine days before he died. Irene testified that he had told her that he intended to re-write his will in her favor out of gratitude for her help and care. The widow of the testator's deceased brother testified that, sometime during the summer of 1978, she heard Irene ask the testator if he was "going to do what he said he was going to do," to which he responded in the affirmative, collected some papers, and left.

After the court denied Irene's motion for a directed verdict, it submitted the case to the jury, with the only issue being whether Irene had exerted undue influence over the testator. The jury returned a verdict against Irene, and we reversed and remanded, stating:

The foregoing does not constitute sufficient evidence of undue influence. Indeed there was no evidence whatsoever that Mrs. Jackson pressured the testator, threatened him with abandonment, or in any way at any time forced or otherwise unduly influenced him to write his will in her favor.

This Court has recently held no undue influence on a set of facts which far more seriously indicated potential undue influence than do the facts in the present case. In that case, Pruitt v. Pruitt, 343 So.2d 495 (Ala.1977), we stated the following:

Our cases have consistently held that when undue influence is asserted in a will contest, the contestant has the burden, in order to raise a presumption of undue influence, to prove a dominant confidential relationship and undue activity in the execution of the will by or for a favored beneficiary. Wilson v. Payton, 251 Ala. 411, 37 So.2d 499 (1948), citing Hyde v. Norris, 250 Ala. 518, 35 So.2d 181 (1948). In other words, evidence must establish: (1) a confidential relationship between a favored beneficiary and testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) undue activity on the part of the dominant party in procuring the execution of the will. Wilson v. Payton, supra; Alexander v. Alexander, 208 Ala. 291, 94 So. 53 (1922).

....

These elements of the presumption go far, of course, in proving the principal charge of undue influence which has been defined in Locke v. Sparks, 263 Ala. 137, 140, 81 So.2d 670, 673 (1955):

Undue influence, must be such as, in some measure, destroys the free agency of the testator, and prevents the exercise of that discretion which the law requires a party should possess as essential to a valid testamentary disposition of his property.

And it must be kept in mind that not all influence is undue; any influence resulting from sympathy and affection only is not disfavored. See Abrams v. Abrams, 225...