Bunyard v. McElroy , 21 Ala. 311 ( 1852 )

CHILTON, J.

— -This was a contest upon an issue devisavii vel non, in the Probate Court of Sumter, upon the will of Isaac McElroy, deceased.

The will gives legacies to several persons, the executor himself being one of the legatees.

The first question is, whether the admissions of the executor can be received to invalidate the will, which makes provision not only for himself but several others. We examined this question with much care in Roberts v. Trawick, 13 Ala. 68, and there decided it adversely to the plaintiff in error. True, in that case the declarations of the principal devisee were offered to impeach the will, which made provision also for others; but we think the principle is the same, whether such devisee be the executor or one having a legacy merely in common with others. All the legatees did not contest this will, and although it is stated that these admissions were offered in connection with proof that it would be to the interest of all but the executor to set it aside, nevertheless, we cannot assume that those legatees who are satisfied with the provision made for them, consented to tbe admission of testimony to defeat their rights under it.

The proof of the declarations made by the testator some six years or more before the making of the will, that the executor (who was testator’s son) and his wife, were constantly “ding-donging at him to make a will, but that he would not do it, and never meant to do it; that the law of Alabama would make a good enough will for him,” we think, was properly .rejected. Now, as we said in Roberts v. Trawick, 17 Ala. 58, 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. Yet the party offering such proof must show, that it is so connected with the act done, as to furnish some reasonable ground of inference that the act was influenced in whole or in paxt by it.

There is no such connection proved in this case. The executor and his wife might, six years before the will was made, have importuned the testator to make a will; but it does not follow that they were desirous to induce him to make an improper one, or that the one made six years thereafter was the result of such persuasion. No reasonable inference adverse to this will could be drawn from the fact, that, six years or more before it was executed, the testator said he would no make a will, although the executor and his wife were “ dingdonging ” at him to do so. It is too remote from the fact alleged to have been influenced by it, and, disconnected from proof of continuous intervening joersuasion, should have been rejected, as well calculated to mislead the jury, and to deny to the testator the right which every one has of changing his mind in respect to the disposition of his property by will.

Let the judgment be affirmed.