Eastis v. Montgomery

95 Ala. 486 | Ala. | 1891

McCLELLAN, J.

Many, of tbe questions presented by tbis record were before tbis court on a former appeal, and then determined against tbe appellants. It was then held that tbe error of excluding, when first proposed, evidence as to tbe conveyances by the testatrix, after tbe making of tbe will, of seventy acres of land to Jonathan Montgomery, and twenty acres each to said Montgomery and tbe other principal beneficiaries, was cured by its subsequent admission, tbe facts in tbis regard being clearly proved, and indeed not controverted; that tbe declarations made by Jonathan. Montgomery, then, and now again, offered in evidence, were not competent either to support or' invalidate the will; and that the proposed testimony as to the transaction between Jonathan Montgomery, representing •the testatrix, and W. J. Cameron, involving a sale and bond for title of and to one hundred acres of land, was properly excluded. It was also then ruled, that the giving of a charge requested by the proponents, to the effect that there was no evidence in the case of threats made by Jonathan Montgomery towards his mother, to induce or cause her'to make the will in controversy, involved no reversible error. — Eastis v. Montgomery, 93 Ala. 293. And these several rulings we re-affirm.

This contest is prosecuted by, or in the interest óf grandchildren of the testatrix — the issue of two daughters who had died before the will was executed — for whom the instrument makes no substantial provision. One of the two main grounds of contestation is the alleged undue influence exerted by the children of the testatrix', or some of them, who are equal beneficiaries under it. Evidence was adduced going to show affectionate relations between the testatrix and these grandchildren. This was, of course, intended to afford an inference that had the testatrix taken counsel of her affections, and been allowed to make such dispositions of her property as they naturally dictated, the grandchildren would not have been cut off with a penny; and therefore, the argument proceeds, undue influence must have been exerted upon her to induce this unnatural result. It is manifest that the strength of this inference depends greatly upon the circumstances and necessities of the' grandchildren. If they, for instance, were already provided for — -if their conditions in life were not such as to appeal to the bounty of the testatrix — it was much more reasonable that she should have failed of her own free will to make additional provision for them in her will, than had they been in necessitous circumstances. And for the purpose of showing that this exclusion from any substantial benefits under the will, notwithstanding the affection entertained for them by the testatrix, was not unnatural, and did not afford a'basis for any inference of undue influence, it was entirely proper for the proponents to adduce evidence to the effect that the contestants had property of their own. — Schouler on Wills, § 242 ; Beaubien v. Cicotte, 12 Mich. 459 ; Crocker v. Chase, (Vt.) 1 East. Rep. 755; Stubbs v. Houston, 33 Ala. 555; Fountain v. Brown, 38 Ala. 72.

An objection was made to the introduction of the will in evidence, on the ground that it was not shown to have been properly executed. We are not advised by counsel in what respect the preliminary evidence fell short of proving the requisite formality in the execution of the instrument, nor have we been able fo find that anything essential in that regard was omitted to be. done. The objection was without merit.

Charge No. 1 requested by the contestants was well refused, because, to say the least, it is abstract in a sense, and would have tended to confuse and mislead the jury. Some ,of its postulates find no lodgment in any tendency of the evidence. There is no evidence in this record of any activity on the part of Jonathan Montgomery in and about the preparation and execution of the will, except such as was the result of the wishes and requests of the testatrix, which, so far, as the evidence discloses, were entertained and expressed by her of her own free will, and not themselves induced by any undue influence.. Such activity, not of proponent’s own motion, or prompted by personal motives, but in behalf of the testatrix, and in furtherance of her purposes, will not combine with confidential relations to shift the burden of proof as to undue influence upon the proponent. And because of this, the charge was misleading; the activity shown by the evidence was not of a character to support the conclusion sought to be drawn from it. Moreover, there is no evidence whatever that the proponent excluded persons from the presence of the testatrix about the time of the execution of the will, — a fact which is made a sub-postulate for the proposition declared in the charge; and to this extent, at least, the instruction was palpably abstract.

Charge No. 2 refused to contestants is open to the same objections as those stated to charge 1. There is no evidence of such procurement of the draughtsman and witnesses, as, with proof of confidential relations, cast the onus of negativing undue influence on the proponent.

Charge 3 refused to contestants was well calculated to mislead the jury, in that it assumes that the will referred to had been procured to be made by the exercise of improper influence, and might thereby have led the jury to the conclusion Abut, in the opinion of the court, the will in this case had been so procured. Had this charge directed the jury to the effect that, if they believed from all the evidence that Martha Montgomery had been induced by improper or undue influence to execute a will different from the will she would have executed but for such influence, they would be authorized to set it aside, it would have been unobjectionable; but, as it is written, it is clearly open to a construction which would have made it an invasion of tbe province of tbe jury, tbe effect being to deny tbeir right to say, in tbe first instance, whether the will propounded had leen so procured to be made.

Charge 4 refused to contestants is palpably an argument throughout. Of course, tbe conduct of one toward another may be such as to excite that degree of dread and terror in tbe latter as will induce him to execute an instrument purporting to be a will wbicb does not accord with bis real wishes and purposes, and is therefore not a will at all; and this regardless of tbe respective physical and mental conditions of tbe parties. But it is no part of tbe court’s duty, charged only with tbe declaring tbe law to tbe jury, to enter upon this kind of disquisition as to tbe probable or possible effect of tbe conduct of one man toward another. This is a matter of fact and inference for tbe jury, and one upon which they are deemed as competent to pass as tbe presiding judge, and one, too, upon wbicb tbe judge is not, and they are, authorized and required to pass. This charge, moreover, as well as tbe 5th instruction requested for contestants, is abstract. There is no evidence of tbe excitation of terror and dread in tbe mind of tbe testatrix, nor of any threats, or over-persuasion, or putting in fear on tbe part of Jonathan Montgomery, in connection with tbe execution of tbe will by bis mother.

Charges 5, 12,14, and 15 given at tbe instance of tbe proponents, to tbe effect, or involving tbe ideas, that testamentary incapacity is an incapacity existing cotemporaneously with tbe execution of tbe alleged will; that the burden of proof as to such incapacity is upon the contestants, tbe original presumption of sanity and capacity being always indulged; and that this burden can only be discharged or shifted by showing prior habitual or fixed insanity, or actual insanity, or other incapacity at tbe date of tbe instrument, are correct expositions of tbe law; as also is charge 9, wbicb defines testamentary capacity. — Leeper v. Taylor, 47 Ala. 221; Cotten v. Ulmer, 45 Ala. 378 ; Daniel v. Hill, 52 Ala.. 430; O'Donnell v. Rodiger, 76 Ala. 322; Kramer v. Weinert, 81 Ala. 414.

Tbe pleadings presented three issues: (1) whether tbe instrument propounded as a will bad been efficiently 'executed; (2) whether Mrs. Montgomery bad testamentary capacity; and (3) whether tbe will propounded was procured to be made by the exercise of undue influence. Charge 8, “That unless tbe evidence shows that the will was obtained by moral coercion, or by importunity which could not be resisted by the testatrix, the jury must find the issue in favor of the proponents,” had reference to the issue of undue influence vel non. If contestants apprehended that the jury would be misled by this charge to the conclusion that all three of the issues — the whole case — should be determined against the contestants, if they found that nó undue influence had been resorted to, they should have asked an explanatory and limiting charge. This tendency or capacity to mislead in charges, while it will justify their refusal, is no ground for reversal when they are given, if they in fact assert the law correctly. And the charge, abstractly considered, is sound. — Bancroft v. Otis, 91 Ala. 279 ; Eastis v. Montgomery, 93 Ala. 293.

Every assignment of error which has not been specifically discussed is covered, either by what we have said, or by the opinion of the court on the former appeal; and as the facts of the case as then and now presented, when brought to the touch of the principles of law obtaining in the premises, are substantially the same, we deem it unnecessary to say more here than that we find no error in the record.

Affirmed.