Roberts v. Trawick

CHILTON, J. Upon a careful examination of this case, we think it very clearly appears that the share of the widow of Nathaniel Davis, the decedent, as secured by the will of her [57] husband, is much greater than the portion of the estate to which she would have been entitled had said Davis died intestate. Mrs. Davis having died a short time after the death of her husband, without children, her share of the estate belongs to her brothers and sisters. Her interest preponderating in favor of the will, her brother, John Willingham, who was offered by the contestants to defeat the will, was clearly a competent witness, as he was called upon to testify in opposition to his interest. It also follows for the same reason that Troy Griffin, who was the husband of the widow’s sister, and who was offered as a witness by the executor, was incompetent, as the effect of his testimony was to sustain the will, and thus to have secured a greater interest in the estate than he would have taken in right of his wife under the statute of distribution. á. It is recited in the bill of exceptions, that the witness. Willingham stated that two or three weeks before making the will in question, he, the witness, went to the house of the decedent and found Mrs. Davis crying. After a short time the testator said to witness, “all I can hear from some people is, a will, a will, a will, but the laws of Alabama make a better will than I or any body else can make.” The plaintiff in error objected to proving this declaration in the court below, but his objection was overruled, and he now insists in this court that its admission was erroneous. One of the grounds for impeaching the will relied on by the contestants is that the deceased was fraudulently induced by his wife to sign and publish it: That she took advantage of his old age and infirmities, both of body and mind, and exercised undue and improper influence over him, in order to obtain a will acceptable to her but prejudicial- to contestants. Fraud or undue influence .in obtaining a will is - rarely proved by direct and positive testimony. It is usually made out by proof of facts and circumstances, which when taken separately may be very weak, yet when grouped together and considered collectively may fully satisfy the mind as to the mala fides sought to be established. So in this case, the crying of the wile, and the contemporaneous declarations of the testator, that all some persons spoke of was a will, &c. tended to show on her part great solicitude, and'on his, agitation and mental embarrassment. This happened a short time, before the will purports to have been executed, and we think was very properly [58] allowed, to go to the'jury: Constituting of itself but feeble proof, yet to be weighed by them in connection with the other facts and circumstances attending the execution of the will. The rule is not so stringent as to require that proof of undue influence should'be confined to the time of the execution of the will — it is sufficient that the will was executed afterwards under the control of such influence, and that by reason of it, the testator was deprived of that free agency indispensable to the making of a valid testamentary disposition of his property. — Davis v. Calvert, 5 Gill & Johns. Rep. 269. When this case was before us, at a previous term, (13 Ala. Rep. 68-83,) we hold that the declarations of the testator made before and at the time of the execution of the will, or so shortly thereafter as to form part of the res gestee, may be received to prove fraud or undue influence in- its execution. Under the principle then settled, this proof clearly falls, and in our opinion was admissible. 3-. We are, however, clearly of opinion that the court below erred in rejecting the evidence of tlie declarations of the testator made before the execution of the will, that he intended to disinherit his daughters, as offered in proof by the witnesses, Whit-son and Caleb Willingham. Now it is said that undue influence, such as will avoid a will, must be an influence obtained by flattery, excessive importunity or threats, or in some other mode by which dominion is acquired over the will of the testator, destroying his free agency, and constraining him to do against his free will what he is unable to refuse. — 2 Greenl. Ev. 648, § 688, and authorities cited. The will before us conforms substantially to the declarations attempted to be proved. It gives to the daughters only a small, we might say a nominal sum. This proof conduced to establish that the testator, many years previous to the execution of the will in controversy, had a fixed and settled purpose to make a will similar to the one he is alleged to have executed. It was then proper, as rebutting the evidence on the part of the contestants, that the will was not the deliberate act of the deceased, but was obtained fraudulently or by the over-persuasion of his wife or others. It tends to show that the provisions in the will which exclude the daughters were not the result of any suggestion made at or near the time when the will was drafted, but that some ten years ante [59] rior thereto the testator declared his, intention then to disinherit his daughters, which intention was repeated five years after-wards. This proof should,have gone to the jury to-be weighed by them in determining whether in, fact the will in question was-procured fraudulently, or by the exercise of improper influence,, or was made by the deceased in th.e exercise of a free volition, and in accordance with his intention entertained’ at a period; when we must presume he was less under the imbecility of' mind and body resulting from the decrepitu.de of’ old age. The other points raised in argument and upon th.e briefs, are fully covered by the previous decision of the case,, (stopra,) and do not require here to be again noticed. O.ur conclusion is, that the court below mistook th.e law in the matter of excluding the testimony of the testator’s declarations, as above set forth. Its judgment is consequently reversed and the cause remanded.