95 Ala. 495 | Ala. | 1891
The case comes to this court by appeal from the Circuit Court, to which court an appeal had been taken from the decree and judgment rendered by the Probate Court of Montgomery county, on a contest of the validity of the will of Mrs. Anna O. Knox. On June 28th, 1883, testatrix executed in due form an instrument purporting to be her last will and testament. One provision of this will.was in the following words : “And whereas certain powers were vested in me by two deeds executed by my deceased husband, William Knox, the one to William S. Donnell, trustee, dated May 30th, 1853, and the other to Thomas J. Semmes, trustee, dated December 18th, 1856, over one half of the property, real and personal, conveyed by said deeds, and held under the said trusts thereof, to be exercised by last will; now therefore, under the execution of said power, I do hereby by my last will direct,” &c., disposing of the property. So much of this instrument as contained the exercise of the power therein specified was offered, in connection with the will and codicil made by testatrix on the 16th day of September, 1889, and as a part of testatrix’s will which was offered for probate. The bill of exceptions does not undertake to set out all the evidence ; in fact there is nothing in the bill of exceptions which indicates that other evidence than that set out was not before the court. Looking at the two instruments together, we can not say the one executed in 1883 was not a testamentary exercise of the power authorized by the deeds of trust referred to; and there is certainly nothing in evidence to show that the power thus
The grounds - of contest were testamentary incapacity, undue influence, and fraud. Wbat constitutes “testamentary capacity,” or “sound and disposing mind and memory,” as established in this State, is : if tbe testatrix bad mind and memory sufficient to recall and remember the property she was about to bequeath, and the objects of her bounty, and the disposition which she wished to make — to know and understand the nature and consequences of the' business to be performed, and to discern the simple and obvious relation of its elements to each other — she had, in contemplation of law, a sound mind.- — Kramer v. Weinart, 81 Ala. 416; Taylor v. Kelly, 31 Ala. 59.
As to undue influence, the rule as declared in Bancroft v. Otis, 91 Ala. 290, is as follows : “The undue influence which will avoid a will, must amount to coercion or fraud; ideas which involve actual intent to control the testator against his will. The law never presumes fraud, or the evil intent and unlawful acts essential to the coercion here contemplated. There must be some proof of these things. They can not be considered to have been done, merely because the proponent had the power to coerce, or to defraud.”
In Eastis v. Montgomery, 93 Ala. 293, it is said: “The undue influence which will avoid a will, must amount to coercion or fraud, an influence tantamount to force or fear, and which destroys the free agency of the party, and constrains him to do what is against his will. Mere persuasion or argument addressed to the judgment or affections, in which there is no fraud or deceit, does not constitute undue influence.”.
There was some evidence in the case of Eastis v. Montgomery, supra, which tended to show that, on the part of a preferred legatee, he was at times disrespectful, abusive, and ill-treated testatrix, as in the present case ; but, as the evidence failed to show that such conduct operated to influence testatrix at the time of the execution of the will, it was held by a majority of the court that it was not improper for the court to instruct the jury, “that there was no evidence in the case of any threats to induce or cause testatrix to make the will contrary to her intention.”
When the probate of a will is contested on the ground of mental incapacity, or undue influence, the real issue is as to the condition of the mind, or the operation and effect of undue influence, at the particular time of the execution of
In charge No. 20 there appears evidently an error in copying. It is conceded by counsel on both sides, that tbe original charge read ‘'if suffered” instead of “if sufficient,” and should be thus corrected. "With this correction tbe charge is free from error.
Charge “X” requested by contestant is objectionable for many reasons. It is misleading. In tbe next place, tbe law does not undertake to prescribe tbe duties of a testator to bis family, in regard to tbe disposition of bis property. And again, altbougb a testator might not dispose of bis property equally to bis next of kin, that fact alone does not raise a presumption of' mental incapacity or undue influence. Tbe manner in wbicb a testator disposes of bis property is a fact in evidence, to be considered with other facts in determining tbe issue; but there is no conclusion of law from sucb a fact as to shift tbe burden of proof upon proponent, or tbe beneficiaries under tbe will, to sbow a sound mind, or freedom of will, on tbe part of the testator. It is a mere circumstance to be weighed by tbe jury. Eastis v. Montgomery, supra.
Charge marked “Y” was properly refused. As was previously declared in this opinion, to sustain tbe contest of tbe probate of a will on tbe ground of ud due influence, tbe evidence must sbow that sucb undue influence operated at tbe time of tbe execution of tbe will. This principle is not recognized in charge Y. We also think tbe charge abstract. There is no evidence in tbe record to sbow “undue influence,” as contemplated by tbe law.
Charge “Z” was properly refused. It is abstract, and is objectionable for tbe further reason, that it requires a higher degree of proof than tbe law demands. When tbe jury is reasonably satisfied from tbe evidence of any fact in civil cases, that' is all that is required. But, when a charge asserts that any fact requires tbe “fullest” explanation, we
We find no error in the record, and the judgment is affirmed.
