Smith v. Smith, 56 So. 949

Smith v. Smith

56 So. 949 | Ala. | 1911

McCLELLAN, J.

The paper propounded for probate as the last will and testament of' Mary Smith, deceased, purports to devise and bequeath all her estate to six of her children, excluding Nancy Outlaw and James Marion Smith, the contestants, from sharing therein.

The trial was had on grounds of contest alleging fraud and undue influence in the execution of the instrument.

It appears without conflict in the evidence that Mary Smith and Frank Smith, her husband, were divorced before the date of execution of the instrument; that Frank was a man of intemperate habits; that prior to their divorce they had several times temporarily separated ; and that Mary Smith “was a frail, sickly woman, and could not attend to her business.”

From phases of the testimony it appears that Wes and Wyatt Smith, two of the beneficiaries, had promoted the disagreements and controversies between the-parents, culminating as indicated, they, with the other beneficiaries, favoring'and espousing the mother’s side, and the contestants, the father’s side, in the disagree*210ments; that the mother took account of the respective attitudes of the children; that she expressed the purpose to give her property to those of her children who were loyal to her in the controversies, and to exclude from sharing in her estate those of her children who were not loyal to her therein, and, on the other hand, that she had expressed the purpose and desire that all her children share equally in her property. From other phases of the testimony, it appears that Wes and Wyatt Smith were her advisors in all of her affairs; that she would take no action Avithout their advice and approval ; and that after her last separation from Frank Smith she Avent to live Avith Wes or Wyatt, or both. It also appears from other phases of the testimony that Wes and Wyatt had made statements indicative of their purpose, or in recital of ‘the result of their effected purpose, to bring about the exclusion of contestants from sharing in the mother’s estate. There Avas also testimony tending to shoAV that Wes and Wyat desired the separation of their parents and purposed its perpetuation — that they discountenanced a reconciliation. There Avas also evidence by Wes Smith to the effect that he on the day of the paper’s execution took his mother home in his conveyance; that en route she showed him the paper; that he then became^acquainted Avith its provisions ; that he kneAV where she kept it; that he got it when she died; and that he did not relate the fact to contestants. Wes Smith also testified that “he never asked her to make a Avill cutting out the contestants or either of them, and did not know that she liad done so until she had been to Dothan and had done it.”

From this summary recital of some of the tendencies of the evidence it is clear that the determination of the issues raised by the grounds of contest before stated was for the jury. And if the jury credited that phase of *211the evidence tending to show that Wes and Wyatt Smith initiated, or directly or indirectly participated in, the preparation or execution of the instrument in which they are named as beneficiaries, occupying at the time relations of confidence with the decedent, then the burden of proof was upon the proponent to show that the instrument was not induced by coercion or fraud, directly or indirectly exercised, on the part of Wes and Wyatt Smith, or either of them. — Bancroft v. Otis, 91 Ala. 29, 291, 8 South. 286, 24 Am. St. Rep. 904; Lyons v. Campbell, 88 Ala. 462, 7 South. 250; Coghill v. Kennedy, 119 Ala. 641, 24 South. 459; Daniel v. Hill, 52 Ala. 430; Mullen v. Johnson, 157 Ala. 262, 47 South. 584. Confidential relations alone will not suffice to shift and impose the burden of proof in such cases.— Author, supra.

Special written charges numbered (in the transcript) 4, 5, and 6 were copies of charges considered in Coghill v. Kennedy, supra. There was no prejudicial error in giving them.

Special written charge numbered (in the transcript) 1 is at least of doubtful soundness. It might well have been refused. It is by no means clear from its terms that each of the alternative hypotheses in its last lines is the legal equivalent of undue influence or fraud as understood in our law. — Eastis v. Montgomery, 93 Ala. 300, 9 South. 311; Mullen v. Johnson, 157 Ala. 262, 47 South. 584. Impaired mental strength is, of course, a more favorable subject of undue influence than a mind not so impaired. Notwithstanding the susceptibility of a weakened mental state, in so far as independence of thought and action is concerned, to receive and yield to undue influence, still the undue influence that will avoid a testamentary act must amount to coercion or fraud — must destroy the free agency of the party upon *212whom it is exercised and constrain him to do what is against his will.- — Eastis v. Montgomry, supra; Mullen v. Johnson, supra.

Charge 3 was erroneously given upon request of contestants. According to its terms, mere concealment by a beneficiary confidentially relationed of a Avill already executed would cast upon the proponent the burden of proof to negative fraud and undue influence in its procurement or execution, notwithstanding such concealment was by a beneficiary in no Avise connected with the preparation or execution of the instrument, and Avho was not shown to have’conspired Avith any one exerting such influence or practicing a fraud upon the testator. The concealment by the beneficiary confidentially relationed to Avhich reference is had in Bancroft v. Otis, 91 Ala. 279, 291, 8 South. 286, 24 Am. St. Rep. 904, must bear some relation to the inducement of the testator to make the Avill, or to some activity Avith re-, spect to its preparation or execution. The charge probably possesses other vices.

The court is divided in opinion upon the question Avhether charge 2 Avas misleading or affirmatively erroneous. None approve the instruction. One of its vices appears in the particular that it may be taken as affirming that a discriminating (between children) testamentary instrument would be as a matter of law illegal; whereas such discrimination is evidential only under issues of mental capacity vel non to execute the paper, or of undue influence vel non in its execution.— Coleman v. Robertson, 17 Ala. 87, 88; Eastis v. Montgomery, 93 Ala. 300, 9 South. 311.

It Avas shoAvn, at least inferentially, on the trial, notwithstanding proponent’s objection, that contestants at some previous time contributed through their labor to the purchase of the land owned by the mother at the *213time of her death and at the date of the execution of the-instrument now propounded for probate. , This was error.- — Winston v. Elliott, 169 Ala. 416, 53 South. 750. That character of testimony had no legitimate bearing-up on the issues of fraud and undue influence in the execution of the instrument.

Nor should the contestants have been permitted to adduce testimony tending to show that decedant and her husband conveyed two or three years before their separation tracts of land to Wes and Wyatt Smith “because-they promised to quit bringing rows between witness (Frank Smith) and Mary Smith.” Such testimony was aside the issues formed upon the trial. Its inevitable effect was to draw into the inquiry extraneous and wholly remote matter.

For the errors indicated, the judgment is reversed and the cause is remanded.

Reversed and remanded. All the Justices concur, save Dowdell, C. J., not sitting.