DocketNumber: 8 Div. 400.
Citation Numbers: 35 So. 2d 181, 250 Ala. 518
Judges: FOSTER, Justice.
Filed Date: 3/18/1948
Status: Precedential
Modified Date: 1/11/2023
This is a contest of the will of Mrs. Nannie Hyde by some of her children. It was executed January 9, 1947, and she died March 25, 1947, at the age of eighty-four. She had eight children, all alive at her death. She had tuberculosis, and had been in the hospital twice during the preceding year, but was sent home because nothing could be done for her. She had resided in her own home, with one son (Herbert) being taken care of by her. She had real estate in Russellville, and a small tract of land in Colbert County, and money and personal effects. She specified what disposition should be made of each parcel of land, and which child should have it. All but one child received a parcel of land. That one she said had received his share. He and some of the others who thought the parcel left them, respectively, was an unequal share, contested. The money and effects were by the will to be equally distributed between them all.
The grounds of contest were principally mental incapacity and undue influence. There was a verdict in favor of contestants (defendants). The court granted a motion for a new trial and set aside the verdict and judgment, and defendants appeal. The court did not indicate the ground on which the motion was granted. The motion included as grounds that the verdict was contrary to the weight of the evidence, and various adverse rulings on evidence and on requested charges. So that we are authorized to assume that it was upon a conviction that the verdict *Page 519
was not supported by the weight of the evidence. As said in Parker v. Hayes Lumber Co.,
The affirmative charge was also requested by plaintiffs as to the grounds of mental incapacity and undue influence, each separately. On the question of undue influence, we have repeatedly held that the burden is on contestants, in order to raise a presumption of undue influence, to prove a dominant confidential relationship and undue activity in the execution of a will by or for a favored beneficiary. Street v. Street,
This testatrix is shown to have had a very strong mind and will of her own; and it further appears that not one of the so-called favored beneficiaries, nor anyone else, had a dominant influence over her, or was active in the preparation or execution of the will except as directed by her.
It may be that equal values were not given each child. But that was done after careful consideration by testatrix, and without any appearance of undue influence exerted by anyone on her, or the intention unduly to favor any of them.
Plaintiffs were entitled to the affirmative charge on the claim of undue influence, and the court was justified for that reason in granting the motion and ordering a new trial.
And on the issue of mental incapacity, we do not think that the evidence so plainly and palpably sustained the verdict as to justify us in disagreeing with the judgment of the trial court in granting the motion for a new trial on the ground that the verdict on that issue was contrary to the great preponderance of the evidence. Parker v. Hayes Lumber Co., supra. The judgment should be affirmed for that reason also. Templeton Son v. David,
We need not consider other grounds of the motion for a new trial.
Affirmed.
GARDNER, C. J., and LAWSON and STAKELY, JJ., concur.
Webb v. Gay , 241 Ala. 336 ( 1941 )
Street v. Street , 246 Ala. 683 ( 1945 )
Parker v. Hayes Lumber Co. , 221 Ala. 73 ( 1930 )
Lindsay Products Corp. v. Alabama Securities Corp. , 247 Ala. 662 ( 1946 )
Cook v. Morton , 241 Ala. 188 ( 1941 )
Kilgore v. Atkinson , 227 Ala. 310 ( 1933 )
Templeton Son v. David , 233 Ala. 616 ( 1937 )
Clark v. Clark , 280 Ala. 644 ( 1967 )
Smith v. Smith , 384 So. 2d 1069 ( 1980 )
Jackson v. Davis , 398 So. 2d 242 ( 1981 )
Sanford v. Coleman , 418 So. 2d 856 ( 1982 )
Wall v. Hodges , 465 So. 2d 359 ( 1984 )
Bolan v. Bolan , 611 So. 2d 1051 ( 1993 )
Smith v. Smith , 482 So. 2d 1161 ( 1985 )
American Mut. Li. Ins. Co. v. Louisville N. R. Co. , 250 Ala. 354 ( 1948 )
Holderfield v. Deen , 269 Ala. 260 ( 1959 )
Pruitt v. Pruitt , 343 So. 2d 495 ( 1976 )
Romano v. Thrower , 258 Ala. 416 ( 1953 )
Lackey v. Lackey , 262 Ala. 45 ( 1954 )
Yellow Cab Co. of Birmingham, Inc. v. Frost , 279 Ala. 591 ( 1966 )