64 So. 105 | Ala. | 1913
The bill in this case seeks to set aside the last will and testament of Mary L. Scarbrough, deceased. Stress is laid .by complainants, who have taken this appeal from a decree sustaining the will, upon the proposition that the will was the product of actual
In cases of this character, where undue influence is charged, the issue set before the court is whether the instrument or the particular provision challenged was the result of testator’s free will, or whether his intention to so provide was produced by the dominant influence of another mind. In this jurisdiction the presumption of undue influence is not raised, nor is the burden of proof as to that issue shifted to the proponent of the will, or to one who would sustain it after probate, by the mere fact that the beneficiary occupied a confidential relation towards testator. Where, however, in addition to such relation of trust and confidence, circumstances of suspicion are shown, as, for example, that the beneficiary took part in the preparation or procurement of the will, the burden is shifted, and the law lays it upon the proponent to show that the contested instrument or provision was not superinduced by
It is not denied that Dr. Scarbrough, to whom we shall hereafter refer as the defendant, the chief beneficiary under the will' of his sister Mrs. Scarbrough, enjoyed his sister’s confidence to a high degree. During the life of her husband, on the frequently recurring occasions of his violent and dangerous drunkenness, she had been accustomed to ask and receive this brother’s assistance and care. During her brief widowhood of about two months, defendant had been her active and trusted agent in the management of the considerable estate left to her by her husband who, notwithstanding his habits, had been a successful man of business. Their relations were unquestionably confidential in a high degree, and, though she was a woman of good mind, she had the limitations one would expect to find in one of her sex whose life had not been troubled by matters of business. We are entirely satisfied that in respect to the management of those affairs which devolved upon her after the death of her husband defendant stood in such relation to the testatrix that probably, if he had been so disposed, he might have imposed his judgment and will upon her, and that this power and influence might have been so extended as to dominate the making of her will. Such a situation must attract the critical attention of the court.
It is disputed between the parties whether the activity of defendant in the matter of the execution of the will was such as, without more, to bring him within the rule of our law in respect to the burden of proof. When testatrix executed the will in question she had been confined to her bed for six days. She died four days later. From the testimony of the defendant and the attending .physician we find that defendant did nothing to
Complainants have adduced besides other evidence with the purpose to show circumstantial facts which must be taken into consideration in this connection. Those tendencies of the complainants’ evidence to which we here refer, and upon which they insist, are: That defendant had the opportunity to exercise undue influence over testatrix in the making of her will; that he was a masterful spirit, she yielding and easily influenced; that testatrix disposed of her property contrary to her previously expressed intentions; that defendant failed to notify relatives of the illness of testatrix; that he kept the execution of the will a secret; that the complaining brothers were poor, defendant well-to-do, and yet defendant took under the will the bulk of his sister’s property; that defendant misrepresented to testatrix the value of her estate, so that she supposed complainants would receive as residuary legatees a much larger benefit than they will receive if the will is sustained; and, lastly, that testatrix had not the benefit of competent independent advice. The effect of
That defendant had opportunity cannot be denied. It has already been conceded.
We are unable to find satisfactory ground upon which to base either branch of the proposition that defendant was a masterful, testatrix a yielding, spirit, if, as seems necessary to appellants’ case, it argues an unusual development of those characteristics in either of them. They both appear to us to have been well balanced, capable people, mindful of their own interests, though considerate of the rights of others.
The testimony for the proposition that testatrix had expressed different ideas about the disposition of the bulk of her estate we consider to be in part untrustworthy, in other part trival. ' We give credit to a part of it, but that part relates only to some articles of jewelry and personal adornment evidently of no great value as compared with the whole estate.
■ Defendant did fairly well in notifying relatives of testatrix’s illness, if that has anything to do with the question at issue. We cannot attach any importance to the evidence or the argument on this point.
There is no suggestion as to how or by whom, other than defendant, the will might have been more appropriately kept during the three or four days testatrix survived its execution, nor any reason why, within that
Among children and lineal descendants, if they be similarly circumstanced, some approach to equality may be expected of the normally disposed, freely acting, mind when making a testamentary disposition of property. Rut the law is careful of the right of the individual to dispose of his property according to his own will. Hence the rule in respect to the burden of proof in certain conditions in cases where undue influence is charged. Hence also, on the other hand, to quote the appropriate language of the judge below: “Irregularities or preferences in bequests do not signify in themselves anything except the desire of the testator. In the absence of other evidence, inequality would not of itself be a circumstance of the slightest consideration against the validity of a will. More especially would this be true in the case of collateral kin, but even in a case of direct descent it would not be a circumstance of suspicion without something else.”
That defendant — referring now as heretofore to Dr. Scarbrough — fraudulently misrepresented to his sister, the testatrix, the value of her estate, and thus induced a division of her property among her brothers and the children of a deceased'sister in what must have seemed to her to be approximately equal parts when in fact as residuary legatees complainants and those in whose interest they are contesting got only a small proportion of the estate, or that he misrepresented to her the value of her property at all, is a conclusion without substantial or satisfactory support in the record. Complainants lay stress on this point. They make it the subject of a separate brief. They say this fact alone constituted
Complainants urge that testatrix should have had competent independent advice in the matter of- making her will. In the short interval since her husband’s death testatrix had intrusted her business affairs to her brother, the defendant. Equity has established the wholesome doctrine that where such relation is shown undue influence is presumed in the case .of a gift inter vivos. This doctrine has been extended in this country to cases of testamentary gifts; but there is an inherent difference in the two- cases which must affect in some degree the measure of proof necessary to overturn the presumption which equity indulges as a matter of public policy, for in the case of a gift inter vivos the donor denudes himself, while in the case of a testamentary gift he has the satisfaction of disposing of that which he can no longer use. — Huguenin v. Baseley, 2 White & Tudor Lead. Cas. 1276. The presumption in any case may be overturned by proof of competent independent advice and counsel or by any other evidence which satisfies the judicial conscience that the gift was the voluntary and well-understood act of the testator’s mind. The only advice which it occurs to us testatrix could possibly have needed as affecting those provisions of the will to which complainants really object would have been advice as to the relative value of the specific and residuary gifts. Defendant, if he would rely on the fact that testator had independent advice on that subject, certainly need not show that testatrix was furnished with a complete inventory of her property and its value. To re
Conceding then, again, that there is enough in complainants’ case to put defendant to his proof, we will turn to that. Some part of the support for it is furnished by the testimony of defendant himself. Complainants (appellants) propound in this connection the doctrine that one who would procure the execution of a will by fraud will not hesitate to sustain it by perjury. That may be sound doctrine in cases where actual fraud is practiced,. though its use as argument that there has been such fraud begs the question. But where the contest is rested, as this now seems to rest, upon the bare technical doctrine of the courts in regard to that undue influence which is presumed to arise out of the mere fact of confidential relations, complainants’ proposition is harsh and unwarrantable.
Actual fraud is never presumed; but equity will set aside, upon the principle of general public policy, vol
We have said that the defense depends in part upon the testimony of defendant. But he is corroborated at many and most vital points by the testimony of witnesses against whom, with one exception, nothing has been said — against whom, we infer, nothing can be said. These are the attending physician, the lawyer who- drew the will and witnessed its execution, and the other witness to the will, as well as some others who testified to facts persuasive of the truth of defendant’s account of the circumstances under which testatrix determined to make a will and did execute the will in contest. The testimony of these witnesses shows to our mind a state of affairs altogether creditable to defendant. It shows that defendant had a special claim on the affections of his sister, the testatrix, and that she was fully justified in reposing confidence in him. He had given her aid and conifort on many occasions when she needed them and at times and under conditions indicating that his good offices were exercised without any expectation of
Affirmed.