Opinion
7 Div. 467.
October 6, 1938.
Appeal from Circuit Court, Calhoun County; Larmar Field, Judge.
Whiteside Woolf and Merrill, Jones Merrill, all of Anniston, for appellant.
It is essential to the validity of a gift that the donor have sufficient mental capacity to make a gift. A gift by a donor mentally incompetent is void. 28 C.J. 627; Collins v. Baxter, 231 Ala. 247, 164 So. 61; East v. Karter, 218 Ala. 366, 118 So. 547; Knox v. Knox, 95 Ala. 495, 11 So. 125, 36 Am.St.Rep. 235. Weakness of mind, though insufficient to produce mental unsoundness, may, in view of other circumstances, operate to invalidate a gift. Collins v. Baxter, supra. In transactions involving gifts inter vivos, where confidential relations exist between the parties, the law raises up the presumption of undue influence. And where the donee is the dominant party, the burden is upon him to repel such presumption by competent and satisfactory evidence. Hutcheson v. Bibb, 142 Ala. 586, 38 So. 754; Bancroft v. Otis, 91 Ala. 279, 8 So. 286, 24 Am.St.Rep. 904; Gibbons v. Gibbons, 205 Ala. 636, 88 So. 833; Dowe v. Farley, 206 Ala. 421, 90 So. 291. The relation between parent and child is per se confidential, and the presumption that the parent is the dominant party is rebuttable. Where it is shown that the child is the dominant spirit, the burden is upon the child to establish the fairness of a gift to him from the parent. Dowe v. Farley, supra; Gibbons v. Gibbons, supra; Keeble v. Underwood, 193 Ala. 582, 69 So. 473; Sikes v. King, 224 Ala. 623, 141 So. 555; Little v. Little, 209 Ala. 651, 96 So. 928.
C. H. Young and Knox, Acker, Sterne Liles, all of Anniston, for appellees.
The presumption of sanity prevails until the contrary is proved. Harris v. Bowles, 208 Ala. 545, 94 So. 757; McLeod v. Brown, 210 Ala. 491, 492, 98 So. 470; Lockridge v. Brown, 184 Ala. 106, 63 So. 524. If donee has sufficient mental capacity to fairly understand the nature and consequences of the act, mere weakness, not amounting to incapacity to understand the act, is not enough to avoid the gift. Harris v. Bowles, 208 Ala. 545, 94 So. 757; Burney v. Torrey, 100 Ala. 157, 14 So. 685, 46 Am.St.Rep. 33. Where evidence was in sharp conflict, judge trying the case and hearing the testimony ore tenus, the presumption is in favor of the correctness of his ruling. Willis v. Excello Bottling Ice Co., 202 Ala. 513, 81 So. 15; Price v. Price, 199 Ala. 433, 74 So. 381; Andrews v. Grey, 199 Ala. 152, 74 So. 62.
This appeal involves the action of the trial court in failing to charge George W. Rutledge, as administrator of his mother's estate, with a sum of money turned over to him by her prior to her death upon the contention that the claimed gift to him of such sum was invalid because, at the time of the delivery of the fund to him, she, the mother, was mentally incapable of making a valid disposition of her property or, in the alternative, that if not totally incompetent, it was the result of undue influence.
There is little doubt that the mother, Mrs. Rutledge, was a very old woman at the time of her death and that she had reached a state of senility and that her mind began to weaken two or three years before her death, but the gift in question was made in 1926, about nine years before her death.
The evidence was in sharp conflict as to the mental condition of the mother when said gift was made and it was ore tenus; the witnesses being seen and heard by the trial court, the conclusion on the facts is like unto the verdict of a jury and will not be disturbed upon appeal unless the conclusion was contrary to the great weight or preponderance of the evidence, and this rule obtains in equity as well as law. Fitzpatrick v. Stringer et al., 200 Ala. 574, 76 So. 932; W. C. McCarty et al. v. John Yarbrough, 223 Ala. 702, 137 So. 913. We can not say that the conclusion of the trial court, as to the mental capacity of the mother, was contrary to the great weight of the evidence.
As to the charge of undue influence, it may be conceded that the relationship and general dealings between George and his mother were such as to place the burden upon him to show that the gift to him was voluntary and well understood by his mother and that the transaction was fair, just and righteous. The trial court, in effect, found that it was and, applying the foregoing rule, we can not say that said finding was contrary to the great weight of the evidence. True, there was no proof of independent advice, but this is not the sole or indispensable method of satisfying the judicial conscience that the act was voluntary. Scott v. Hardyman, 218 Ala. 515, 119 So. 224; Jones v. Brooks, 184 Ala. 115, 63 So. 978; limiting McQueen v. Wilson et al., 131 Ala. 606, 31 So. 94.
The decree of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.