95 Ala. 579 | Ala. | 1891
The original bill in this case was filed for the foreclosure of a mortgage, the ownership of which was claimed by the appellants, R. B. Kyle and Sam. Henry, under a certain instrument alleged by them to have been executed by Mrs. Augusta E. Perdue on the 9th day of
The' testimony of several witnesses, whose credibility does not seem to be affected by any improper bias, tends strongly to show that on the 9th of August, 1886, Mrs. Perdue was in no condition, mentally or physically, to attend to the disposition of her property. Two colored women who waited on Mrs. Perdue during her sickness describe her condition at and about the time the paper was signed as one of extreme illness. It appears from their testimony that she was physically helpless, was out of her head, and was unable to transact any business. Mrs. Hosmer, who was a near neighbor of Mrs. Perdue and was present when the instrument in question was signed, describes her as completely prostrated mentally and physically at that time, and says that her mind was not theu strong enough to enable her to know and understand the business she was engaged in. Mr. Mower, a minister of the Protestant Episcopal Church, states that he had known Mrs. Perdue since 1850, and was lor many years a friend of her deceased husband, who was a minister of the same church. He testifies that as minister he called to see Mrs. Perdue on the day the paper was signed,
In considering the evidence bearing upon the charge that Mrs. Perdue, in signing the instrument, was unduly influenced by Kyle and Henry who abused the confidence which she reposed in them as her trusted friends and business advisers, it is material to ascertain at the outset the truth as to the relations existing between the parties. Kyle and Henry admit that they were on terms of intimate friendship with Mrs. Perdue, but deny that they occupied toward her any relation of special trust or confidence. From their own account of this matter the following state of facts is disclosed : Kyle and Henry were men of wealth actively engaged in business pursuits. For many years prior to his death they were intimate personal friends of Dr. Perdue who was a clergyman and a school-teacher. He frequently advised with them as to his business affairs. His means were invested in a residence in Gadsden, in railroad stocks and bonds, and in notes and mortgages. He had no children, and bequeathed all his property to his wife. A few weeks before his death he told Mr. Henry that he wanted him to look after and care for his wife. This conversation
There are well established rules to be applied in passing upon transactions between persons whose relations are such as to suggest that in dealings between them confidence is reposed and accepted to such an extent that one of them is subject to the influence or ascendency of the other. When such a relationship is shown to exist if the one who was in a position to exert the influence claims the benefit of a contract with the person bestowing the confidence, the burden is cast upon the former to show affirmatively that the influence of his position, was not unduly exerted, that the utmost good faith was exercised, and that all was fab', open, voluntary and well understood. This rule as to the burden of proof is of familiar application to contracts by which benefits are conferred by a cestui que, trust upon his trustee, by a ward upon his guardian, by a child upon his parent, by a client upon bis attorney, by a patient upon bis physician, Or by any one upon bis priest or spiritual adviser. — Noble v. Moses, 81 Ala. 530; Dickinson v. Bradford, 59 Ala. 581; Malone v. Kelly, 54 Ala. 532 ; Boney v. Hollingsworth, 23 Ala. 690; Johnson v. Johnson, 5 Ala. 94; Marx v. McGlynn, 88 N. Y. 357 ; Hugnenin v. Baseley, 2 Leading Cas. in Eq., (W. & T.) 1156. The relations here mentioned are but instances in which the principle is applicable. ■ It is not essential that any formal or technical relationship of a fiduciary character has been established betweén the parties. It suffices that they stand in such a relation to each other that, while it continues, confidence is justifiably reposed by one, and the influence which naturally grows out of that confidence is possessed by the other. When -the parties are merely friends of each other and deal upon • terms of equality, the burden of showing the invalidity of any transaction between them is upon the one who assails it. But where their situation is such that as a matter of fact confidence • is reposed on one. side and there is superiority on the other side resulting from the influence acquired by the acceptance of the confidence bestowed, there is a presumption of undue influence to be rebutted by the superior party. Transactions between such persons may be entirely valid, but the
In the present case it appears from the testimony of, the beneficiaries in the instrument which is assailed that the grantor therein had long been in the habit of seeking and relying upon their advice and assistance in reference to her business affiairs; that the circumstances leading to their visit to her on the occasion when the instrument was signed were such as to make it plain that she looked to them to see that the disposition of her property which she desired was properly made; and that by the arrangement which she then suggested and to which they fully assented they formally assumed the position of trustees of all her property with powers implying her unlimited confidence in their fidelity to her interests. It does not often happen that any of the familiar relations of a fiduciary character between adults beget in fact more of trust and confidence than the statements of Messrs. Kyle and Henry show that they were the recipients of on the occasion in question. "We are satisfied that it is incumbent upon them to show that Mrs. Perdue signed the instrument voluntarily, deliberately and advisedly, with full knowledge of its nature and effect; that there was an absence of all undue influence, advantage, or imposition; and that they did not in any way mislead her as to the meaning or operation of the paper prepared for her signature. — Balkum v. Breare, 48 Ala. 75; Jackson v. Harris, 66 Ala. 565; Haydock v. Haydock, 34 N. J. Eq. 570; Gillespie v. Holland, 48 Am: R. 1; Baker v. Monk, 4 DeG., J. & S. 388, and authorities cited supra.
Mr. Kyle states that Mrs. Perdue said to Mr. Henry: “I wanted to see you and Col. Kyle about the disposal of my property. They want me to give it to the church, but I do not want to do it. I know what I want to do with it. I want you and Col. Kyle to take charge of all my property and take care of me while I live, and when I die Í want you to pay all my debts, if any, and put a tomb-stone like the one over my dear husband’s grave over my grave, and then I want the balance of my property divided equally between you and Col. Kyle, reserving to Bookie and Zeebie the lots
The instrument which was signed by Mrs. Perdue does not provide for such a disposition of ber property as the.
It is urged that by accepting' money and supplies from Kyle and Henry Mrs. Perdue ratified the invalid instrument. It is plain that she had no intention to ratify it. She was asserting its invalidity in the courts. Her adversaries, by the active assertion, of their claim, had succeeded in cutting her off from,the enjoyment of the income from her property. She received their contributions toward her support during the pendency of this suit, and while she was under the stress of want, caused by the withdrawal of her accustomed means of livelihood. Ón one of the receipts which was presented for her signature she wrote, “I take this money because I am starving.” Beceipts given in such circumstances are entitled to no weight as evidence of a free consent to confirm the voidable transaction. The evidence by no means shows that the alleged acts of ratification were free, voluntary and well understood.— Voltz v. Voltz, 75 Ala. 567; Thompson v. Lee, 31 Ala. 392; Butler v. Haskell, 4 Dessau. (S. C.) 651; 2 Pom. Eq. Jur., § 964.
"We discover no error of injury to the appellants in the decree of the Chancery Court.
Affirmed.