72 So. 531 | Ala. | 1916
This appeal is from a decree dismissing the bill of appellant, se'eking to annul the last will and testament of Mrs. Mariah Hortense Jones, deceased. The ground for annulment insisted on, stated in varying forms, was the procurement of the will by means of undue influence and fraud. This influence over testatrix is alleged, in some of the paragraphs of the bill, to have been exercised by her husband, Thomas A. Jones, and in other paragraphs, by Clifton A. Jones. The latter was the son of the said Thomas A. Jones, and a stepson of testatrix. Thomas A. Jones, having died before the taking of the testimony, was stricken as a party respondent. The will thus challenged was duly probated, and to the probate proceedings appellant and all the next of kin were made parties. Within the prescribed time, Cary P. McElhaney, the brother of testatrix, began this suit for its annulment in the mode prescribed by statute. — Code 1907, § 6207.
“Witnesseth, that the said Mariah Hortense Jones, for and in consideration of the many kindnesses shown her by her beloved stepson, Clifton A. Jones, and money furnished her to repair and furnish her house, known as McElhaney Hotel, it is her desire, after the death of herself and her beloved husband, Thomas A. Jones, that the said Clifton A. Jones, shall take possession of, and have as his own, all of her real estate, which consists of said McElhaney Hotel, and seven acres of land, more or less. Also all her personal effects, excepting the family portraits, which she desires shall go to and become the property of her two nieces, Katie B. and Mildred M. McElhaney. And the said Mariah Hortense J ones hereby gives, grants, and conveys to the said Clifton A. Jones, his heirs and assigns, the said McElhaney Hotel and seven acres of land, more or less, on which said hotel is situated, in the town of Auburn, Lee county, Alabama, and all her personal effects, except family portraits, as above mentioned, together with all the rights and privileges thereunto belonging, forever in fee simple. To take effect after the death of the said Mariah Hortense Jones, and her husband, Thomas A. Jones.”
In a frank, convincing way, Judge Drewery gives in detail Mrs. Jones’ instructions to him for the drafting of this conveyance, and her reasons impelling thereto. The witness’ version of how he came to prepare this conveyance was: “I met Clifton A. Jones this morning for the first time. He was not present at any conversation I ever had with Mrs. Jones. Thomas A. Jones was not present at the time she told me about the paper she wanted me to write, and the deed I testified about. He never said anything to me about that paper. He never made any suggestion as
The letter referred to by Judge Drewery was introduced in evidence. It was as follows:
“Auburn, Ala., June 3, 1912. Judge J. A. Drewery, Dear Friend. The papers were received all right, and I want to thank you with a heart full of gratitude for your kindness. I failed to write in the paper where my stepson was living at present, he has been living in Louisiana for the past seventeen years, but he considers Auburn home. Now would it make any difference in point of law, by not giving Louisiana as his home in the deed of gift? I wouldn’t want anything to come up that would give him any trouble. * * * Thanking you for your kindness, I am always, Truly your friend, ‘Sister Jones.’ ”
Judge Drewery explained that he had often been in testatrix’s house, on a personal (and, we may add, a most commendable) mission to Alabama — the courtship and marriage of his present wife, a friend of the testatrix. He stated that Mrs. Jones called him “Brother Drewery,” and he called her “Sister Jones.” On cross-examination this friendship was further illustrated as follows:
“Q. Did you first begin calling Mrs. Jones, ‘Sister Jones,’ or did she first begin calling you ‘Brother Drewery’ ? A. I don’t remember. Q. When did you first begin to use these terms towards each other ? A. I commence to call people I know as ‘brother’ and ‘sister’ if they are Christian people, from the time of my acquaintance with them. D. Do they respond by calling you Brother Drewery? A. Some do, and some do not.”
In this passage we have evidence of a friendship to be commended. • By it we are reminded of the church life in the community of our childhood, where this good custom was the rule.
It should follow that if there was no undue influence in procuring the execution of this deed, which was to take effect after the death of Mariah Hortense Jones, and of her husband, it is of great evidential value to show that no undue influence induced the testatrix to the execution of the will. This court has long held that an instrument to take effect at the death of the maker may be upheld as a deed when the same was duly delivered during the life of the maker. — Goodlittle v. Bailey, Cowper, 600; 2 Black. Com. 302; Hall v. Burkham, 59 Ala. 349; Sharp v. Hall, 86 Ala. 110, 5 South. 497, 11 Am. St. Rep. 28; Griswold v. Griswold, 148 Ala. 239, 42 South. 554, 121 Am. St. Rep. 64; 2 Mayf. Dig. 817.
That Mrs. Jones had a fixed intention to give or devise this property to appellee is abundantly shown. Take, for example, the testimony of Mrs. Drewery on this point. It will be noted that Mrs. Drewery was a former resident of Auburn, that she had been on most friendly terms with Mrs. Jones, and that she did not know Clifton A. Jones. Mrs. Drewery was married in December, 1911, and thereafter, on her visits to Auburn, she frequently called on Mrs. Jones, and had had frequent conversations with her before witness left Auburn after her marriage. This witness testified that she had heard testatrix speak of the disposition she wanted to make of her property, or that she intended to make of it; she especially referred to a conversation had in the summer of 1908, when witness, with testatrix, was spendirig the day at the home of witness’ sister, and stated that at such time testatrix told witness’ sister “she wanted to give the hotel to Mr. Clifton Jones.” On cross-examination witness detailed the circumstances of this conversation. Said testatrix spoke of the many kindnesses he (appellee) had done for her, and stated that if he had been her own son he could not have been kinder, and that she wanted this place (meaning the property in question) to go to him after her death. This conversation took place about 4 years before the execution of the deed drawn by Judge Drewery.
. It would subserve no good purpose to discuss in detail the testimony, on this point, of witnesses Wright, Smith, Sellers, Jones, and Dr. Yarbrough. Each of these witnesses swore that while appellee was absent from Auburn Mrs. Jones stated she would devise her property to him. These statements of testatrix were made under circumstances that indicated they were the expression of her own volition, and were not the product of any undue influence on the part of any one. The subsequent exeeution of the deed, and of the will of like import, was confirmatory of such statements.
It is insisted by appellant, however, that testatrix was addicted to the use of opiates, which were administered by her physicians and by her immediate family, and that appellee retained a subtle influence over her, by sending these drugs from New Orleans. Counsel for appellant in argument say: “The court judicially knows something of the habits of mind and impairment of will power of a confirmed user of opium, a ‘morphine eater/ as described in the very frank statement of one witness— who had been through the valley — and as so vividly portrayed in the immortal work of Thomas De Quincey.”
There can be no doubt that the long-continued use of opium impairs the power of a human will, and it may be, as De Quincey said, in his Confessions, that, “The power to will is left, yet not the power to decide it.” Yet the evidence does not show such a state of fact as to the mind of testatrix.
It is true that the witness for appellant, referred to by counsel, gave it as her opinion that one who was addicted to the morphine habit would steal the drug or go any length to obtain it. The evidence shows, however, that Mrs. Jones’ physician had been providing and injecting morphine daily, as the occasion of her necessities demanded. She was therefore not entirely dependent on appellee for her daily opiates.
If it be a fact that appellee knew of the weakness of his stepmother, of her desire for more of the drug than was provided by her physician, and that neither he nor his father reported this to her physician, such fact, of itself, would not show the exertion
The testimony of her pastor, of the pastor of a sister church, of her physician, and of many witnesses is uniform to the effect that testatrix was in the possession of her mental faculties before, and at the time of, the execution of these two conveyances.'
Appellee denies that he sent such narcotics to testatrix. Yet, even if he did, we could not, in the light of the evidence, infer that this gave him a dominion over her such as amounted to undue influence — that influence which, exerted in the procurement of a will or like instrument, will, in law, invalidate the instrument. The case of appellant would be stronger if appellee had been the only agency through which testatrix could obtain this drug.
The only connection appellee is shown to have had with the making of the will was such as might be inferred from the facts that testatrix read in his presence the deed, placed it in an envelope and -requested thaf he take it to her attorneys for consideration ; that he did as she requested, and sent to her the attorneys’ reply; that he returned, at her request, to the attorneys’ office for the will prepared by them pursuant to the terms of the Drewery deed, and that he gave to testatrix the will so prepared by her attorneys. Appellee was not in Auburn when the will was executed, but at his home in Louisiana.
The testatrix’s act in executing the will was but the consummation of the intention she had freely expressed and reiterated to friends and physicians, and this will was of like import to the deed she had had Judge Drewery to draw. The record does not show even persuasion or argument addressed to the judgment or affection of the testatrix. — Eastis v. Montgomery, 93 Ala. 293, 9 South. 311; s. c., 95 Ala. 486, 11 South. 204, 36 Am. St. Rep. 227; Mullen v. Johnson, 157 Ala. 262, 47 South. 584; Councill v. Mayhew, 172 Ala. 295, 55 South. 314; Smith v. Smith, 174 Ala. 205,
In Mullen v. Johnson, supra, it was shown that the wife, without suggestion, told Johnson to see an attorney, and have her will drawn, leaving him her property; that he then told her that he would make a will in her behalf, and suggested a joint will. The attorney advised separate wills, and so drew them, and delivered the wife’s will to Johnson. The latter paid the attorney’s fee and carried the will home on the date of its execution, placing it in his wife’s desk. At the request of testatrix, the nurse got the will from the desk and handed it to her. After she had read it, she remarked to those present that it was drawn as she had directed. The nurse replaced the will in the desk. When the physician came testatrix asked that he and the nurse witness her signature, made by mark; she being unable to write. This court said:
“In my opinion the testimony in the cause clearly shows that Thomas M. Johnson acted only under the direction and instructions of his wife, supplying, of his motion, not even a suggestion from the beginning to the end, except that of a joint will following, and conditioned in suggestion upon the clearly expressed purpose and desire of Mrs.' Johnson. The activity that effects to cast the burden on the beneficiary, confidentially relationed, can never be an activity solely referable to a compliance with or obedience to the free and voluntary instructions or directions of the testator. This is the view announced in Eastis v. Montgomery, 95 Ala. 493 [11 South. 206, 36 Am. St. Rep. 227]. * * * ‘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 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.’ ”
This principle was affirmatively recognized in Garrett v. Heflin, 98 Ala. 615, 13 South. 326, 38 Am. St. Rep. 89; but the decision was that, under the facts of that case, the person enjoying the confidential relation had been so active as to merit the im
The facts tending to show participation on the part of the devisee in the preparation of the will, in the present case, are not as strong as were those in Mullen v. Johnson, supra, or in Scarbrough v. Scarbrough, supra. In the latter case the relationship was that of brother and sister, and was confidential. The testatrix, in her last illness, was confined to her bed at devisee’s home. The devisee, acting upon his sister’s suggestion “made a memorandum of her wishes, and by her direction took it to the lawyer, who had for years been advising her husband and herself about their affairs of various kinds. The lawyer, acting upon his own initiative entirely and upon his own notion as to what was proper and expedient in the premises, though disposing of the estate, according to the indicated wishes of testatrix, added certain collateral provisions to which appellants refer as being greatly for the benefit of defendant, but some of which defendant thinks imposed burdens upon him of which he would have been gladly relieved, to wit: He inserted a provision that defendant, who
If, however, the slight activity on the part of the appellee, to be gathered from the evidence, casts upon him the burden of showing that the contested instrument was not superinduced by fraud or undue influence, we are of the opinion, in the light of the whole evidence, that he has overcome all adverse presumptions. The preponderance of the evidence shows that this will was the voluntary and untrammeled act of testatrix (194 Ala. 119, 63-South. 978), and, as such, was justly admitted to probate as the last will and testament of Mariah Hortense Jones, deceased.
The decree of the Lee county court of law and equity is affirmed.
Affirmed.