Wear v. Wear

• Decision Date: 21 December 1916
• Docket Number: 6 Div. 123
• Citation: 200 Ala. 345,76 So. 111
• Parties: WEAR v. WEAR et al.
• Court: Alabama Supreme Court

76 So. 111

200 Ala. 345

WEAR v. WEAR et al.

6 Div. 123

Supreme Court of Alabama

December 21, 1916

Rehearing Denied May 31, 1917

Appeal from Probate Court, Jefferson County; J.P. Stiles, Judge.

Probate proceeding by C.N. Wear to establish the will of William T Wear, deceased, which was contested by O.S. Wear and others. From a decree denying probate, the proponent appeals. Reversed and remanded.

Sayre J., dissenting.

The contest was as follows:

(1) That said W.T. Wear was of unsound mind at the time of the alleged execution of the paper purporting to be his last will and testament.

(2) That W.T. Wear, at the time of the making of said paper purporting to be his will, was under the domination and control of C.N. Wear and his wife, Mary J. Wear, or either of them, and that the will is the result and product of the undue influence exercised by them, or either of them, over the mind of said W.T. Wear, deceased, and was not the result of the exercise of his free volition.

(3) That said will was not duly executed by said W.T. Wear and that the execution of said paper was procured by the fraud of C.N. Wear, in this: That said W.T. Wear was a man of old age, and suffering from physical and mental weakness due to senility, and that C.N. Wear was the son of W.T. Wear; that said W.T. Wear was living in a house by himself, near the home of C.N. Wear, and that said C.N. would visit W.T., and would persuade him that the lands owned by said W.T. did not exceed in value $600, and that it would be equitable, owing to the value of the land not being in excess of $600, to will said land to C.N. Wear, and to will O.S. Wear, Mrs. Partain, and Belle Nabers each the sum of $600 in money, well knowing that his statement to his father was false, and that the land he sought to secure, and did procure his father to will to him, greatly exceeded in value the sum of $600. And your petitioners aver as facts that at the time of the procuring and execution of said paper, purporting to be the will of said W.T. Wear, it greatly exceeded the value of $600, and was at said time and is now of the value of $4,000; that at the time that said representations of the value of said land were made to him by said C.N. Wear, W.T. Wear was a man old, feeble in health, and with his mind impaired by his advanced age, and he relied upon the representations of his said son as to the value of said land, and as to the equitable disposition of the property, on the basis of each receiving an equal distribution.

The following charges were refused to proponent:

(49) The court charges the jury that, if they believe the evidence in this case, they must find a verdict for proponent on the issue of the soundness of mind of the testator.

(41) If the jury believe from the evidence that, at the time when the paper propounded for probate by C.N. Wear as the last will and testament of W.T. Wear was executed by said W.T. Wear, and witnessed by B. Moore and W.L. Everett as subscribing witnesses thereto, the said W.T. Wear had mind and memory sufficiently sound to know and understand the business in which he was engaged, then he possessed testamentary capacity, and they should find the issues in favor of the proponent.

(77) The court charges the jury that it is a great mistake of the principles of law under consideration, as applicable to wills, to suppose that a person who, by forethought and affectionate attention and provisions for the wants of another, and by integrity, acquires the confidence of such person, and the controlling influence over him, using no deceit, is in the exercise of what in law is termed undue influence. Such a doctrine would place a premium on neglect and indifference, and rob virtue of its reward.

(81) The court charges the jury that, although the evidence may show or tend to show some impairment of the mind, if testamentary capacity remains, the fact that there has been an unequal distribution of the property does not authorize the conclusion that such distribution was the result of fraud or undue influence. There must be other evidence tending to show that the will of the testator was unduly coerced, or that there was fraud or deceit practiced in its procurement. To hold otherwise would lay down a principle which would authorize the setting aside of every will on the ground of fraud or undue influence, when any impairment of mental vigor was shown, although the testator possessed such mental capacity, unless the disposition of the property accorded with what in the opinion of the jury it should have been.

The following charges were given for the contestants:

(1) It is not the means employed, so much as the effect produced, which must be considered in determining whether undue influence has contributed to the making of the will; for, though the influence exerted over the testator was such as if, under ordinary circumstances or the exercise of persons of ordinary powers of resistance, would be regarded as innocent, yet, if in the particular case it resulted in a disposition of the property contrary to the testator's desire, the influence was undue.

(3) Whether the free agency of the testator is destroyed or mastered by physical force or mental coercion, by threats occasioning fear, or by the importunity which the testator is too weak to resent, or which exhorts compliance in the hope of peace, is immaterial. In considering the question, therefore, it is essential to ascertain as far as practicable the power of coercion on the one side, and the liability to influence on the other, and whenever, through weakness, ignorance, dependence, or implicit reliance of one on the good faith of another, the latter obtains an ascendancy which prevents the former from exercising an unbiased judgment, undue influence exists.

J.H. McNeill, George D. Finley, and Horace C. Wilkinson, all of Birmingham, for appellant.

Beddow & Oberdorfer, of Birmingham, for appellees.

McCLELLAN J.

This is an appeal from a decree, following verdict of a jury, denying probate to a paper, of date November 30, 1914, propounded as the last will and testament of William T. Wear, deceased. The probate was prayed by C.N. Wear, a son of the decedent, who was named executor thereof. The contestants were O.S. Wear and Mrs. Partain, children of the decedent, and Mrs. Nabers, a daughter of a long-deceased child of the decedent. The report of the appeal will contain all of the grounds of contest, viz.: Nos. 1, 2, and 3.

There can be no doubt of the sufficiency of the first ground of contest, which averred the want of decedent's mental capacity, at the time, to validly execute a will. Barksdale v Davis, 114 Ala. 623, 627, 22 So. 17, treating ground B there considered. The second ground, which asserted the invalidity of the instrument because of undue influence, itself a manifestation of fraud, practiced on the decedent by the proponent beneficiary, C.N. Wear, and his wife, or either, was not subject to the demurrer. Coghill v. Kennedy, 119 Ala. 641, 655, 24 So. 459. It is obvious that the charge of fraud asserted in the third ground was entirely justified by the allegations of fact upon which that charge was rested. The general rule of Barksdale v. Davis, 114 Ala. 623, 22 So. 17, touching the sufficiency of allegations of fact to justify such a charge, was fully met in the averments of ground 3. There was no error in the rulings on the pleadings.

Prior to November 4, 1914, the decedent, a man 79 years of age, was the owner of two tracts of land--one, the "home place," containing 140 acres, and one, the "ridge place," containing 40 acres. At that time, and at the time of his death in March, 1915, the decedent had about $1,800 on deposit in a bank. Reckoning his granddaughter, Mrs. Nabers, as representing a deceased child, decedent had four heirs, the proponent and the contestants. It appears from the evidence that on November 4, 1914, decedent made a conveyance of all the land to C.N. Wear; there being evidence tending to show that decedent's original purpose was to value the 140-acre tract at $600 and to give that tract to C.N. Wear as his part of the decedent's estate, the other of his heirs to be given $600, respectively, out of the money on deposit in bank. It is indicated in the testimony that the consideration recited in the conveyance was $600. When the deed was being written out, the description of the other--the 40-acre--tract was also included, thus, if effectual, transmitting on November 4, 1914, to C.N. Wear all of the land then owned by the decedent. The paper propounded for probate purports to devise to C.N. Wear this same land. This paper was attested by two witnesses on November 30, 1914, about 26 days after the conveyance was executed. There is testimony tending to show that the paper propounded for probate was prepared by an attorney and delivered by C.N. Wear to his father on November 11, 1914.

At this point assignment of error No. 14, predicated of the trial court's refusal to give a special written instruction wherein the proponent (appellant) sought to have the jury advised that there was "no evidence" of a particular fact, or to support a particular proposition, may be eliminated. It has been long settled that trial courts are not required to declare to juries that there is no evidence of particular facts or supporting a particular proposition, and it is not error to refuse such requests for the instruction of juries. Troup v. State, 160 Ala. 125, 127, 128, 49 So. 332, and Coal Co. v. Kilgore, 162 Ala. 642, 655, 50 So. 205, among others.

The court did not err in refusing the special charge numbered 49 (assignment 17) requested for proponent. It was bad in form in view of the fact that there was another issue before the jury. N. & O.R.R. v. George, 94 Ala. 201, 221,...