Opinion
3 Div. 194.
January 7, 1937.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Hill, Hill, Whiting Rives, of Montgomery, for appellant.
A ground of contest of a will based on undue influence is defective and subject to demurrer if it does not name the person who it is claimed exercised such influence. Daggett v. Boomer, 210 Ala. 673, 99 So. 181; Johnson v. Johnson, 206 Ala. 523, 91 So. 260. Where a ground of a will contest is based upon alleged undue influence of a named person, a charge that would authorize a verdict for contestant if some other person than the one named exercised undue influence is erroneous. Daggett v. Boomer, supra. If there is no evidence showing undue influence as charged in a ground of the contest, it is error for the court to refuse to charge the jury that they cannot find for contestant on such ground. Moore v. Heineke, 119 Ala. 627, 24 So. 374. See Hale v. Cox, 222 Ala. 136, 131 So. 233; Dulaney v. Burns, 218 Ala. 493, 119 So. 21; Bulger v. Ross, 98 Ala. 267, 12 So. 803; Mullen v. Johnson, 157 Ala. 262, 47 So. 584; Little v. Little, 209 Ala. 651, 96 So. 928; Bancroft v. Otis, 91 Ala. 279, 8 So. 286, 24 Am.St.Rep. 904. When a burden is upon a litigant to reasonably satisfy the jury of the existence of a certain fact, a charge to the jury that the litigant must prove the fact imposes a burden higher than the law requires. Southern Exp. Co. v. Roseman, 206 Ala. 681, 91 So. 612; Lockridge v. Brown, 184 Ala. 106, 63 So. 524.
Blakey, Blakey Levin and Thos. E. Martin, all of Montgomery for appellee.
While it is appropriate that the pleading in a will contest name the person alleged to have exerted undue influence, a charge of the court is not bad for not confining the influence to the person so named; since such person may have employed other persons as means and devices in furthering his purpose, and it is not requisite that the quo modo be alleged. Borton v. Borton, 225 Ala. 457, 143 So. 468; Alexander v. Gibson, 176 Ala. 258, 57 So. 760; Wear v. Wear, 200 Ala. 345, 76 So. 111; Lewis v. Martin, 210 Ala. 401, 98 So. 635. Daggett v. Boomer, relied upon by appellant, applies only to pleading and not to charges. But, if a charge is objectionable because of its generality or because calculated to mislead, its giving is not cause for reversal. An explanatory charge should be requested by the adverse party. Chandler v. Jost, 96 Ala. 596, 11 So. 636; Reid v. Sloss-S. S. I. Co., 177 Ala. 262, 58 So. 301; Meighan v. Birmingham Term. Co., 165 Ala. 591, 51 So. 775; Daniel v. Bradford, 132 Ala. 262, 31 So. 455. Undue influence need not be proved by direct evidence but may be inferred from the general facts and circumstances surrounding alleged execution of an alleged will. To have given the affirmative charge on the ground for proponent would have been to invade the jury's province. Moreover, the refusal of such charge was immaterial, since the testator was obviously non compos mentis, and his will could not be sustained. Smith v. Smith, 174 Ala. 205, 56 So. 949; Lewis v. Martin, supra. Charge 3 correctly states the burden of proof. O'Donnell v. Rodiger, 76 Ala. 222, 52 Am.Rep. 322; Saxon v. Whitaker's Ex'r, 30 Ala. 237; Grubbs v. McDonald, 91 Pa. 236; West v. Arrington, 200 Ala. 420, 76 So. 352; McBride v. Sullivan, 155 Ala. 166, 45 So. 902.
It is well settled by the decisions of this court that upon the contest of a will upon the ground of undue influence the quo modo need not be set out, yet it is necessary to name the person or persons who exerted the undue influence. Daggett v. Boomer, 210 Ala. 673, 99 So. 181, and cases there cited. In fact, the trial court seems to have recognized this well-settled principle by sustaining the demurrer to those grounds of contest that did not conform therewith.
The trial court erred in giving contestant's charge Z. It did not conform to the law or the issues presented by the pleading. True, the Daggett Case, supra, was reversed because of a failure of the trial court to sustain the demurrer to the contest, but the court also considered and discussed certain charges given the contestant and pointed out that they possessed the same defect as charge Z in the present case. See charges 3 and 9 given for the contestant in the said Daggett Case.
Charge X, given for the contestant, could have well been refused as singling out and giving undue prominence to a part of the evidence. Moreover, we think the trial court erred in refusing the proponents requested charge 7. The contest as finally amended and submitted to the jury charged the fraud or undue influence to Elizabeth Drake, yet the proof failed to establish the charge as to her. Indeed, counsel for the appellee in brief, in effect, concede that the charge as to undue influence was not established. Quoting from brief: "The only real question that the jury considered or could have considered was whether or not the testator possessed said testamentary capacity." We agree that that was the only question that should have been considered, but cannot agree that it was the only question considered by the jury, as the trial court permitted the question of undue influence to go to the jury and there was a general verdict finding for the contestant on the issues presented. Had the verdict been confined to the want of testamentary capacity, we could, of course, apply the doctrine of error without injury as to instructions relating to the charge of undue influence.
There was a conflict in the evidence as to the mental capacity of the testator when the will was made and previous thereto and whether or not such incapacity was permanent or chronic. The rule seems to be settled that when permanent disease of the mind is established, the burden is on the contestee to show that the act involved was during a rational or lucid period of the mind and the contestant's given charge 3 asserts a correct legal proposition. It could have more properly used the words "reasonably satisfy you from the evidence." But, appearing as it does, it was at most misleading and could have been easily explained or qualified by a counter charge. It could have probably been refused without reversible error, but it was not reversible error to give same. The two cases relied on by appellant's counsel do not hold that the giving of such a charge was reversible error. In the case of Lockridge v. Brown, 184 Ala. 106, 63 So. 524, charges 30 and 32 were refused by the trial court and the refusal was justified upon several grounds, one of which was that it used the word "show" which was probably a stronger term than "reasonably satisfy." In the case of Southern Express Co. v. Roseman, 206 Ala. 681, 91 So. 612, exception seems to have been taken to the use of the word "prove" in the oral charge of the court. The opinion did discuss the word "prove" and stated that it required a higher degree than to reasonably satisfy, but the real holding was that it was merely misleading and an explanatory request should have been made, and, as none was made, the party excepting could not complain.
For the errors heretofore pointed out, the judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
THOMAS, BROWN, and KNIGHT, JJ., concur.