Whitten v. McFall

• Decision Date: 02 June 1899
• Citation: 122 Ala. 619,26 So. 131
• Parties: WHITTEN ET AL. v. MCFALL ET AL.
• Court: Alabama Supreme Court

26 So. 131

122 Ala. 619

WHITTEN ET AL. v. MCFALL ET AL.

Supreme Court of Alabama

June 2, 1899

Appeal from chancery court, Lauderdale county; William H. Simpson Chancellor.

Bill by Selinah B. McFall and others against Nancy J. Whitten and others. There was a decree for complainants, and defendants appeal. Reversed.

On the 18th day of May, 1895, Z. M. Johnson died in Lauderdale county, Ala., at about the age of 78 years. His children who are living or who left descendants are M. C. Johnson, T. W Johnson, John C. Johnson and Nancy J. Whitten. M. C. Johnson is dead and his only descendants are the infant appellees Beulah and Maud Johnson. T. M. Johnson is also dead and his only descendant is Selinah E. McFall. The wife of Z. M Johnson died about two years prior to his decease, and soon after her death said Johnson went to live with his daughter, Nancy J. Whitten. Said Johnson died owing no debts, and the bill in this case was filed October 11th, 1895, by Selinah E. McFall and Beulah and Maud Johnson against the appellants Nancy J. Whitten, John C. Johnson and H. W. Johnson. The bill averred that Z. M. Johnson died seised of certain lands specifically described in the bill; that by reason of advancements made to his other children, which were equal to their distributive share in said decedent's estate, the complainants were alone entitled to the lands described in the bill, and the bill prayed that said lands be partitioned between the complainants and if partition be impracticable, that the lands be sold for division among the respective owners thereof. The defendant, Nancy J. Whitten, answered the bill, which answer was adopted by the defendant John C. Johnson, admitting all the allegations of the bill except that she denied therein that Z. M. Johnson owned the lands described in the bill at the time of his death. She alleged in reference thereto that prior to his death, the said deceased conveyed the said described lands to her and her husband jointly in consideration of her giving him a home and caring for him and providing for his burial, etc.; and that, thereafter, the complainants had no interest in the said land.

It was shown by the evidence that Z. M. Johnson had executed some sort of an instrument to Mrs. Whitten and her husband, a short time before his death; that this instrument was not recorded, and that after its execution it was destroyed by said Z. M. Johnson. It was the claim of the complainants that this instrument was testamentary in its character, and was intended as a will and was, therefore revocable, and by its destruction the beneficiaries therein acquired no interest in the lands. It was also contended by the complainants that at the time of the execution of said instrument, Z. M. Johnson was living in the home of Nancy J. Whitten and was, therefore, unduly influenced by her and her husband in the execution of said instrument.

It was the contention of Nancy J. Whitten and her evidence tended to show that said instrument conveying the lands described in the bill, was a deed and was so intended, and that there was no undue influence exercised by her or her husband to bring about the execution of said deed. The facts of the case are sufficiently stated in the opinion.

On the final submission of the cause on the pleadings and proof the chancellor decreed that the conveyance executed by Z. M. Johnson to Nancy J. Whitten and her husband was not intended as an absolute conveyance, but was testamentary in its character; and, therefore, revocable, and having been destroyed by the said Z. M. Johnson, it transferred to Nancy J. Whitten and her husband no property rights to the lands mentioned in said bill; and further, if it was a deed, it was obtained through influence on the part of the grantees. It was further decreed that the complainants were entitled to the relief prayed for, and a decree of reference was ordered. From this decree the defendants appeal, and assign the rendition thereof as error.

Paul Hodges, for appellants.

John T. Ashcraft, for appellees.

HARALSON J.

When a lost or destroyed deed or will is sought to be established, the proof of its contents ought to be such as to leave no reasonable doubt as to its substantial parts. The evidence of what it contained should be clear, full and satisfactory. Land Co. v. Denny, 108 Ala. 553, 18 So. 561. The burden of proving the contents of such a paper is on the party seeking an interest under it. Newell v. Homer, 120 Mass. 277.

Another well recognized principle is, that when intimate personal and business relations exist between the parties, and one has advantage or superiority over the other, the validity of a deed made between them for the benefit of the one occupying such superior advantages, should be scrutinized with jealous care, and the bona fides of such transaction and its entire freedom from fraud and undue influence should be fully shown. Ryan v. Price, 106 Ala. 584, 17 So. 734.

"In determining whether an instrument be a deed or will, the main question is, did the maker intend any estate or interest whatever to vest before his death and upon the execution of the paper? or, in other words, did he intend that all the interest and estate should take effect only after his death? If the former, it is a deed; if the latter, a will; and it is immaterial whether he calls it a will or deed, the instrument will have operation according to its legal effect." Gillham v. Mustin, 42 Ala. 366; Trawick v. Davis, 85 Ala. 342, 5 So. 83; Abney v. Moore, 106 Ala. 131, 18 So. 60.

Another rule of construction is, that if the paper is on its face equivocal, the presumption is against its operating as a testamentary disposition, unless it is made clearly to appear that it was executed animo testandi, or being intended by the maker to operate as a posthumous disposition of his estate....