Opinion
4 Div. 756.
May 1, 1919.
Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.
Farmer, Merrill Farmer, of Dothan, and Sollie Sollie, of Ozark, for appellants.
H. L. Martin, of Ozark, for appellee.
The original bill sought cancellation of the conveyances here in controversy upon the ground of undue influence. Other grounds were added by amendments to the bill, including fraudulent representations; but the conclusion we have reached renders a consideration of these phases unnecessary, and they may therefore be laid out of view.
The bill very clearly is sufficient in its averments for the setting aside of these conveyances upon the ground of undue influence. Alexander v. Gibson, 176 Ala. 258, 57 So. 760. And the case simply presents a question of fact as to whether or not the proof was sufficient to authorize the relief sought upon this ground.
Since the act of 1915 (page 594) it has been the policy of this court not to enter into any analysis or discussion of the evidence in detail. Underwood v. Underwood, 77 So. 233. However, the cause has been very elaborately and ably briefed by counsel for the respective parties, and we have felt it proper to state as briefly as we may the conclusions reached from a careful study of the evidence, no detail of which has escaped our attention. The report of the case will contain a sufficient reference to the tendencies of the evidence for a general outline of the merits of the cause, as thus presented by the proof.
200 Ala. 690.
As stated by this court in Shipman v. Furniss, 69 Ala. 555, 44 Am. Rep. 528:
"Undue influence is a species of constructive fraud, and a question depending upon the circumstances of each particular case."
Distinction is also made by the authorities between wills and deeds of gift; stronger proof being required to raise a presumption of undue influence in the case of a will than in a deed.
"Improper influence may be often inferred to have operated in producing gifts, where the same evidence would fail to authorize such an inference in case of a legacy or devise." Authorities supra.
We are impressed that some of the evidence for the respondents displays too great an interest and a willingness to have complainant placed in an unfavorable light before the court. We refer particularly to the statements claimed to have been made by the complainant to some of her sisters in reference to her brother's will, just a few hours previous to his death. We do not find from this record such evidence as would tend to support the theory that complainant was a woman of so grasping a disposition, so lacking in a sense of propriety of the occasion and in real affection for her brother, as to have given utterance (in a whisper) to such expressions as here claimed. But we intend no detailed discussion of the evidence.
Suffice it to say, the evidence has been read and reread, and given most careful consideration; and from a study of this record the following conclusions are reached: Complainant at the time of the execution of the deed, while of sound mind, was suffering with pellagra, and was evidently very nervous, as well as greatly grieved over the death of her brother, with whom she had been living. She was alone in the world but for these sisters and her nephews.
We are further persuaded that Mrs. S. L. Varner came to the home of W. C. Pilcher at his request, and that the will of Walter Surles was discussed and understood among them, and that these three went on the following day to complainant's home, without previous notice to her, for the purpose of securing the deeds here in controversy. While the question of complainant and her sister moving to the home of W. C. Pilcher was doubtless discussed during the conversation, yet we are rather impressed that this discussion was more as a means to an end, and that this was in no manner the primary object of the visit. We also think that W. C. Pilcher went to the home with the blank deeds already in his possession.
It may be seriously questioned that W. C. Pilcher occupied such a confidential relation with the complainant as, under the decisions, would cast the burden of proof upon the respondents to show that the transactions were fair and just in every respect. But this question we pass without decision as being unnecessary; for we have reached the conclusion that, regardless of the question of the burden of proof, actual undue influence has been sufficiently established to justify the relief granted in the court below. W. C. Pilcher was a man 52 years of age, with more than 30 years of varied business experience; and it is shown without dispute that he was of a strong mind and persuasive powers. During all this period he had intimately known the complainant. There can be no question but that she had, as shown by her conduct, great confidence in his business integrity as well as his ability. He had attended to some of her business affairs; she had been his security at the bank, and loaned him money without even a note and without interest. She was 75 years of age, a spinster, diseased and nervous, and deeply grieved over the loss of her brother. It is quite clear that his was the dominant mind, and she decidedly the weaker. Respondent's testimony shows that the execution of just such deeds as are shown was first mentioned to complainant by W. C. Pilcher, and sufficient excuse for such suggestion being then made does not here appear. He merely advised her "it would be much better for her." At no time does it appear that she had ever considered, for even a moment, or suggested making such disposition of her property as is here shown; yet, according to the theory of W. C. Pilcher, within half an hour she stripped herself of practically all the property which she owned, reserving only the rents and income during her natural life, with the understanding that she was to pay the taxes and make the repairs.
We think it clearly appears, notwithstanding the denial on the part of the respondents, that the complainant's version of these transactions is correct, and that the will of the brother was discussed and complainant made to entertain fears that the respondents, through W. C. Pilcher, would deprive her of the fruits of his gifts, or prolong litigation in reference thereto. In addition to this, it may be she was influenced by the promise of Pilcher to provide a place for her to live at his residence, then owned by the complainant, and doubtless she had been affected by the expressed fears of her sisters as to her safety in remaining in Madrid; and, further, that W. C. Pilcher, in the presence of her sisters, by the dominance of his will and with his great persuasive powers, led complainant in her feeble and mentally disturbed condition to act hastily, without time or opportunity for deliberation, and without any disinterested advice or opportunity to obtain it, and under the influence of threats of disturbing the brother's will.
In cases of this character, the improvidence of the transaction is a cogent circumstance. Shipman v. Furniss, supra. Likewise the inadequacy of the consideration, when associated with the evidence of actual undue influence, may also be given consideration. Hassell v. Hassell, 201 Ala. 190, 77 So. 716.
That these transactions were most improvident is too clear for discussion. According to the testimony of the respondents, complainant was assured that the income from the property would give her a "bountiful support," yet actual experience has demonstrated its insufficiency for this purpose, and that in case of sickness she would be dependent upon the charity of others.
Complainant was taken wholly by surprise; she had had no intimation of the visit, and in her impaired state of mind and health no doubt was shocked, as she testified, when their purpose was made clear. The following quotation from Holt v. Agnew, 67 Ala. 360, is here pertinent:
"And so in cases of surprise, of sudden action without due deliberation, if there is great inequality of consideration in the transaction, and advantage is taken of the circumstances which mislead, confuse or disturb the reason and judgment, the court will intervene."
It also clearly appears that immediately upon complainant finding herself from under the influence of W. C. Pilcher and her sisters, she recovered, and, realizing what she had done, demanded the return of her deeds.
We are also of the opinion that complainant had a very affectionate regard for her nephews, and, as shown by the testimony of one Reese, witness for the respondents, she had desired that they share in her small estate at her death. They were in need of assistance, while the sisters were not.
We think it a matter of some significance that the sister Mrs. A. A. Varner, who was living with complainant, could testify to nothing of any value in the cause, although in the house during the entire day; but we forego further discussion.
The facts and surrounding circumstances come with impelling force upon the unbiased judicial mind, producing the conviction that the execution of these deeds was induced by undue influence, as herein shown, and that the transactions should not stand. In view of this conclusion, questions as to other phases of the bill become immaterial, and therefore unnecessary to treat.
The decree of the court below is in accord with the conclusion we have here reached, and is therefore accordingly affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.