47 So. 584 | Ala. | 1908
Lead Opinion
— Annie M. Johnson died in August, 1901, childless, survived by her husband, Thomas M. Johnson, and the complainant, a brother, the only heir at law. The instrument contested, purporting to be a will and to have been executed on June 20, 1901, gave
The requisite mental capacity to make a valid will has been repeatedly defined by this court; and these words,
The burden assumed by the contestant (complainant) to establish mental incapacity is not grounded upon a state of habitual insanity affecting Mrs. Johnson at or prior to June 20, 1901; but such incapacity is predicated, in the testimony for contestant, upon a condition of mind wrought by the use of narcotics, which, with the cancerous disease inflicting her, it is urged, affected to destroy the requisite mental capacity of Mrs. Johnson to make a valid disposition of her property. This condition, asserted to have produced the disqualifying result indicated, was necessarily “temporary or ephemeral in its nature,” if present at any time prior to the execution of the instrument. No presumption of its continuance on that occasion can be indulged. —O’Donnell v. Rodiger, 76 Ala. 222, 52 Am. Rep. 322. Indeed, from the testimony for the contestant, alone, it is apparent that the disease, in and of itself, though inflicting intense pain and causing swelling of the arm, breast, side, shoulder, face, and neck did not result in any mental impairment or dethronement within the standard declared in the quotation from Taylor v. Kelly, supra. The whole insistence, then, resolves itself into the issue of fact whether the presumption of the soundness of Mrs. Johnson’s
In a general sense the testimony for complainant and that for respondents is in irreconcilable conflict, though it must also be said that upon the specific point of the issue, viz., her mental status at the time of alleged execution, comparatively few of the whole number of the witnesses testify. On both sides the mental status of Mrs. Johnson, both before and after June 20,1901, is the subject of opinions, favorable and unfavorable. For the contestant, many of his witnesses, while giving opinions opposed to her soundness of mind, evince unmistakable evidences of their opinions in that regard being unjustified by facts to which they testify. Some of them predicate their opinions on the mere fact that the stricken woman did not enter readily into conversations in progress about her, or, when under the influence of opiates and dozing therefrom, that she uttered incoherent or random expressions; and still others rest their opinions against her soundness of mind npon the asserted fact that Mrs. Johnson Avas in a stupor from the use of narcotics, at least from the 17th to the 20th of June. These conditions might all very well exist at times and be wholly absent at other times — might very well prevail and yet when the sick woman was aroused, or the effect of the opiate had been spent, leave her with such an unclouded mind as that she could measure in mental strength, up to the standard declared to be requisite in Taylor v. Kelly. And, in this immediate connection, touching the effect of morphine upon the mental ability
The witnesses in this cause to whom must be given the credence due disinterested witnesses enjoying the best of opportunities to know that about which they testify are
Dr. Dubose’s testimony is lengthy, covering a detailed account of Mrs. Johnson’s malady and its progress and treatment. He affirms that from the 10th to the 20th of June, she did not take for relief from pain, and that was the only reason it was given, altogether more than five grains of morphine; that after the latter date, which was subsequent to the execution of the instrument, a new treatment was employed, and after two weeks of use it was discontinued, because of the prostrating effect on the patient; that the disease had no effect upon her mind; that the opiates administered had no effect upon her mind; that her mind remained in its normal condition of soundness; that during the month of June she was able to be up and about the house the greater part of the day; that at the time of the execution of the will her mind was sound; and that at this time her physical condition was remarkably good for one so afflicted. Remembering that this witness saw Mrs. Johnson professionally twice daily from May to August, inclusive, no comment here could add to its probative force. Miss Ford was exhaustively examined in chief and on cross. She was trained for her calling, with two years’ service, at the A labama-Bryce Hospital for the Insane. In that course of instruction she must have had unusual advantages in the observation of persons mentally afflicted. She testified that up to the time Mrs. Johnson went to Philadelphia in August she was not confined to her bed nor was she unable to walk; that she directed her household affairs, her servants reporting to her; that she (witness') was experienced in the administration of mor
Additional to these witnesses, affirming the soundness of Mrs. Johnson’s mind, are more than a dozen who do not appear to be inclined by bias or interest to voice any other than a fair opinion of her mental strength. Some of these speak of transactions or occurrences in Avhich Mrs. Johnson participated, and which clearly shOAV her to have been of sound mind. Not the least credible of this array of Avitnesses are Dr. Dickinson, Mrs. Johnson’s pastor, Avho saAV her frequently in June and July, and Dr. Massey, the Philadelphia physician jvho treated her in August, and who in course of a long career in his profession had exceptional advantages in mental and nervous diseases. Among these advantages were three years’ service in the Pennsylvania Insane Hospital and seven years in a prominent infirmary for nervous diseases in Philadelphia, and also more than 10 years’ experience in the treatment of cancerous maladies, including the use of opiates in such treatment. Mrs. Johnson Avas under the care of Dr. Massey from August 5 to August 28, 1901. He saw her during that period at least once a day. He thus states his opinion of her mental condition : “Her mental condition during all of the period she Avas under my care was perfectly sound in every particular. She Avas decidedly of sound mind. She did converse rationally. She was at no time irrational or unintelligent. Neither her eyesight nor her hearing Avas
Assuming the admissibility of all the testimony for contestant on this issue, and contrasting it, with patient care, Avith that of the respondents, notably with the evidence of the witness named and specially quoted above, we feel no hesitancy in affirming on this issue the conclusion attained by the chancellor.
The other issue relates to the before-stated undue influence exerted upon Mrs. Johnson, resutling, it is averred, in attempted execution of the instrument. With us the laAV by which must be determined the validity vel non of a will upon an issue of undue influence is as indisputably settled as that of mental capacity vel non to make a valid will. Wé cannot hope to improve in exactness of statement of the rule upon that to be found in numerous decisions of this court. It will suffice to quote one of the number: “The undue influence Avhich 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
Justices Haralson, Dowdell, Simpson, Anderson, and Denson, entertain the opinion that, regardless of whether the burden to refute the presumption of undue influence was upon the contestant or upon the respondent Thomas M. Johnson, on the whole evidence in the cause, on this issue, the conclusion is irresistible that the contested instrument was not the product of any undue influence in the premises. While the writer concurs in the conclusion of fact just stated, he prefers to ground his opinion, in affirmance of the chancellor’s view, upon the reason and fact to be later set forth.
The contestant insists that the requisite activity of the beneficiary, Thomas M. Johnson, in the preparation and execution of the contested instrument, was so shown as to cast upon him the onus of rebutting the presumption of undue influence thereupon arising and that, since there is no evidence in the cause tending to show “a severance of the relation by independent and competent advice,” this burden was not discharged, and the
On this issue of fact the undoubted weight of the evidence is that the husband was commendably solicitous about, and notably diligent, affectionate, and faithful to, his wife during her long illness, and, as before stated, that there existed between them a strong attachment. The chancellor in his able opinion, sustaining the instrument on this issue, thus summarizes, and correctly, these controlling conclusions from the whole testimony in the cause: “After testatrix returned from the infirmary, some time before the execution of the will, she was daily and hourly attended and surrounded by her family and the trained nurse. The husband rarely saw her alone, and only for a short time. The neighbors, the
As indicated, the Justices named above affirm the conclusion of the chancellor that the will was not the product of any undue influence, but was the result of the free ; choice and act of Mrs. Johnson, in the disposition of her . estate. The writer rests his opinion in affirmance of the •validity of the will on the issue of undue influence upon ■ the fact that there is an utter absence of testimony, relieving the contestant of the burden of proof in the cause, tending even remotely to show any activity on the part of the chief beneficiary, the husband, in or about the preparation for or execution of the will of Mrs. . Johnson. There is, aside from the contended-for effect of the presumption arising from such activity by a beneficiary, absolutely no proof of any effort or act on the part of any one to influence Mrs. Johnson to execute the contested instrument.
The testimony, some of which is indicated in the summary quoted before from the opinion of the chancellor touching Thomas M. Johnson’s connection with the i preparations for and execution of the will of Mrs. Johnson, is to the effect that she, without suggestion of -any kind from him, or any one else, for that matter, told the husband to see Mr. Mallory and have him draw her will leaving her property to him, her husband; that he, in response, told her that, since she was going to do as stated, he would make his will in her favor, and suggested a joint will; that she adopted the suggestion of a joint will, and instructed him to have Mr. Mallory draw a joint will; that the husband saw Mr. Mallory, stated the request of Mrs. Johnson to him, and he advised separate Avills; that he (the husband) communicated Mr. Mallory’s advice to Mrs. Johnson, and she directed him (the husband)' to have Mr. Mallory draw the separate wills;
In my opinion the testimony in the cause clearly shows that Thomas M. Johnson acted only under the directions 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 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, 39 Am. St. Rep .89; but in that case the confidentially relationed person was held, under the facts there present, to have been so active as to merit the imposition of the burden.
The decree below is affirmed.
Dissenting Opinion
(dissenting). In this case it- is clearly established that the appellee, a young, strong, and healthy man, not shown to be possessed of any estate, with a wife feeble and sick unto death with a painful and mortal disease, and constantly under the influence of narcotics, by .personal negotiation, with or without the. assistance of a brother, who was much in control, made an agreement with, his wife, who was childless and possessed of considerable-wealth, to make mutual wills
Under these well-proved and undisputed circumstances, the husband, commanding from his relation the very citadel of influence over the wife, conceived and carried, through by his own acts and interference the scheme of mutual wills, under which his feeble and death-stricken wife makes him her executor and sole devisee and legatee. He must have known that in a short time the gift of all his estate to his wife would be a lapsed legacy, on account of the death of -the beneficiary during his life ; and, if the transaction be sought to -be. sustained upon