Moore v. Spier , 80 Ala. 129 ( 1885 )

SOMERYILLE, J.

-The motion to dismiss the appeal can not be sustained. It was taken within the thirty days allowed by the statute, so far as appears from the record. The notice or citation, it is true, was not served for several months after-wards, but this irregularity affected' only the question as to' when the appeal should stand for trial, and not the jurisdictional validity of the appeal itself, which became complete when it was prayed for and the requisite security given. Willingham v. Howell, 34 Ala. 680. The appellee, it may be, had his remedy for this delay by requesting a judgment of affirmance on production of the proper certifícate from the court be-ow. But this he did not do. The irregularity, moreover, was ■^waived by the joinder in error without previously interposing the objection. Mobile Mut. Ins. Co. v. Cleveland, 76 Ala. 321; Bolling v. Jones, 61 Ala. 508; 1 Brick. Dig. 103, §§ 289-290.

The instruction of the court to the jury was free from all error so far as it defined what was requisite in law to the mechanical execution of a will. The statute requires wills, other than those that are nuncupative, to be “in writing, signed by the testator, or some person in his presence and. by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator.” Code, 1876, § 2291. It is not required that the witnesses should sign in the presence of each other, Hoffman v. Hoffman, 26 Ala. 535.

The question of chief importance in the ease is that of undue influence which is alleged to have been exerted by the appellee upon the mind of the testatrix in procuring' the execution of the will in contest. It is not only proper but necessary for us to say, that we find no positive evidence in the record which tends to show the exercise of any influence, which is in its nature essentially fraudulent, involving, as it does, a resort to improper arts or circumvention, operating to induce one to confer a benefaction contrary to his deliberate judgment, reason, and discretion. Bigelow on Frauds, 288 ; 1 Bedfield on Wills, 530. Hence many of the charges, which may be interpreted to assume the existence of such influence, were properly refused, because they were, for this reason, faulty and misleading.

It is made to appear, however, that a confidential relation existed between the devisee, Spier, and the testatrix at the time of the execution of the will, which was on the fourteenth day of May, 1866. IIe was her trusted agent, having the general management of her property and business, being employed at a stipulated salary payable by the year. Though a kinsman by consanguinity, he was not so nearly related to her as were some of the contestants. By great kindness towards the testatrix he had acquired an influence over her which, though it may not have been illegitimate, was very great. Mrs. Savage was about sixty-eiglit years of age at the time she executed the will, and was simple-minded, although not, perhaps, of strictly feeble intellect. Being occasionally addicted to drinking, she was sometimes of eccentric manners and apparently hysterical. The value of the property left by the will was about ten thousand dollars, being substantially all owned by the testatrix, except a few legacies, purely nominal in amount, left to other relatives.

Under the rule laid down by this court in Shipman v. Furniss, 69 Ala. 555, 564, and Waddell v. Lanier, 62 Ala. 347, the burden of proof, in our opinion, was cast on the devisee to show that the will in question was not superinduced by fraud or undue influence, but was the result of free volition on the part of the .testatrix. We need not add anything more here by way of discussion to what is said in those cases, except that this rule as to the burden of proof is one of public policy, designed to prevent the abuse of certain confidential relationships, and to preserve them free from the taint of an overreaching selfishness.

The court, under the influence of this rule, shoirld have given the twelfth and fifteenth charges requested by the contestants.

Conceding that the sale of- the land to the appellee was a revocation of the will so far as the land itself was concerned, it would not invalidate the will in loto. The instrument might still be valid and operative as to the other property of the testatrix, and, if so, should be admitted to probate as to it. The twenty-fourth charge, failing to recognize this principle, was properly refused. Taylor v. Kelly, 31 Ala. 59; Welsh v. Pounders, 36 Ala. 668; Code, 1876, § 3287.

The other charges, bearing on the subject of undue influence, except the fourth, were abstract or otherwise misleading, and their refusal imputes to the court no error.

The witnesses, who were examined as to the condition of Mrs. Savage’s mind at the time of making the will, should have been required first to show that their acquaintance with her had been sufficiently intimate and long to justify the formation of a correct judgment as to her mental status and habits. The rule on this subject is discussed at length in Ford v. The State, 71 Ala. 385, and will be a sufficient guide upon another trial.

The proper inquiry was, of course, the condition of the testatrix’s mind on the day the will was executed. Its status before this period was relevant, however, because it may have continued in the same condition. So, one of the points urged being weakness of mind engendered by senility, it was competent to show that, subsequent to the date of the will, her mind was free from every appearance of imbecility.

It was competent to ask witnesses, who showed ample lcnowledge of the facts, whether the testatrix was a woman firm in her views and convictions, or one capable of being easily influenced. This would be in the nature of a collective fact. But it was clearly erroneous to permit the witness, Thompson, to testify that her character in the community was that of one easily influenced. This was not a case where proof of character was admissible. It was an attempt to establish a substantive fact by public repute.

So the estimate in this particular, or any analogous one, in which she may have been held by McCondichie, could not be proved by declarations made in the latter’s last will, as was sought to be done by the appellants. This evidence was obviously hearsay, and was properly excluded from the jury.

The judgment of the probate court is reversed and the cause remanded.