Posey v. Donaldson

SOMERVILLE, J. The evidence presented on the issues of testamentary capacity showed no more than the great physical weakness of the testator, with increasing mental weakness and impairment of memory, such as was naturally incident to his advanced age. The uncontradicted testimony of numerous witnesses, including some of those offered by contestants, conclusively shows that, at and about the date of his testamentary act, the testator was fully capacitated therefor. So far as this issue was concerned, there was nothing to be submitted to the jury. . On the issue of undue influence, there was no evidence indicative of confidential relations between testator and beneficiaries leading to the dominance of the latter over thé former, nor was there any evidence of activity on the part of the latter-in or about the preparation or execution of the will. The burden of proving undue influence in the procurement of the will on the part of one or more of the persons charged therewith, therefore, rested affirmatively upon the contestants. [368] —Hawthorne v. Jenkins, 182 Ala. 255, 62 South. 505; Bancroft v. Otis, 91 Ala. 291, 8 South. 286, 24 Am. St. Rep. 904. “While of course direct evidence of fraud or undue influence is sufficient to establish those issues, such evidence is rarely obtainable, and the issues are generally determined by inferences drawn from a large number of facts and circumstances, no one of which is of much weight or conclusive when considered alone, but is of some weight when combined with other facts. Taken collectively, such facts and circumstances acquire their proper weight, and may then be sufficient to prove the issues. Thus it is only when considered in connection with other circumstances that weight is given to the motive and opportunity of a person benefltted by the will to unduly influence the testator; prior hostility between proponents and contestants; * " unjust, unequal, or unnatural provisions in the will, such as the exclusion of part, or all, of the natural objects of the testator’s bounty; general good or had treatment of the testator; * * declarations of the testator * * * that he had been unduly influenced to make the will, or that he intended to dispose of his property by will in a certain way; * * * or the fact that the' testator lived with the beneficiary.” • — 40 Cyc. 1166-1168, and cases cited. The following facts or conditions here find support in the evidence. The testator was very old and very infirm, and his memory and other mental faculties were failing and sometime^ useless; he lived with or was constantly in company with his three sons; his wife, who. had previously left him, returned to his home about the time he began to prepare the will, and its provisions were framed in accordance with her suggestions or wishes; she and the sons were not friendly to the grand [369] daughters 'and their mother, and discouraged their presence with and attentions to the testator; the testator was very fond of his granddaughters, recognized his duty to them as the children of his dead son, alnd intended to give to them the share of his estate which their father would have received if living; he made repeated declarations of this intention within a few months before the execution of the will; in giving favors to contestants or their mother he concealed the fact from his immediate family in fear of their disapproval or censure; he was harassed and bothered by his family, and especially his wife, with respect to the division of his estate, before and about the time of mailing the will. From all these circumstances the jury might have drawn a rational inference that the testator was unduly influenced in the making of his will as he did, and that his purpose to give a fourth of his estate to these granddaughters was dislodged by the intervention of the superior will of another, dominating and directing his own to an undesired result. This evidence may be unsatisfactory, and the conclusion may be weak, but we cío not feel justified in declaring that the evidence presented no issue for the determination of the jury, and hence we must hold that the trial judge erred in instructing the jury to find for the plaintiff. The assignments of error with respect to- rulings on the evidence are not of sufficient merit or consequence to justify their discussion. The fact, if established, that Gillie Donaldson, the testator’s wife, induced him to make his will different from what he otherwise would have done, did not, in the absence of fraud or coercion, or its equivalent, amount to undue influence. The charge predicating a [370] verdict for contestants on tlie ground of such inducement alone was therefore properly refused. The judgment will be reversed, and the cause remanded. Reversed and remanded. McClellan, de Graffenried, and Gardner, JJ., concur.