Alexander v. Alexander

Supreme Court of Alabama

Alexander v. Alexander

94 So. 53, 208 Ala. 291, 1922 Ala. LEXIS 448

CourtSupreme Court of Alabama

DecidedOctober 26, 1922

Docket8 Div. 363.

StatusPublished

Cited by14 cases

This text of 94 So. 53 (Alexander v. Alexander) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Alexander v. Alexander, 94 So. 53, 208 Ala. 291, 1922 Ala. LEXIS 448 (Ala. 1922).

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Opinion

SAYRE, J.

Appellant propounded for pro-hate a paper writing purporting to be the last will and testament of L. A. Alexander, deceased, wherein he was named as sole beneficiary and executor. Appellee’s contest was framed in several aspects, but the course of the trial indicated very clearly contestant’s contention to be twofold; that deceased had not executed the paper; and that its execution had resulted from undue influence exercised by proponent. Jury and verdict went for contestant and from the judgment denying probate proponent has appealed.

There is no need to consider in detail the several assignments of error since the court is clear to the conclusion that the evidence offered to sustain the two aspects of appellee’s contest was wholly insufficient to that end and should not have been allowed to !prevail against proponent’s motion for a venire de novo.

[1] The evidence of the two witnesses to the will was direct, positive, and unclouded, save by some testimony tending to show vagrant general statements by testator to the effect that he did not intend ever to make a will, but would let the law dispose of his estate, and some dubiously established expressions on the part of proponent after the death of deceased, indicating his lack of knowledge that deceased had disposed of his property by will, or even, it may be conceded, that he intended to deny the existence of a will. The evidence, besides being clear to the effect already stated, discloses ample reason why deceased should have made just the will in dispute, and the court is of opinion that the verdict should not have been allowed to stand.

[2] As for the other ground of contest, viz. that the will was the result of undue influence, proponent was entitled to the general charge. Let it be assumed for the argument that there was some evidence of confidential relations in fact between testator and proponent, and that'proponent exercised in general a dominating influence over testator, there was an entire absence of evidence going to show that there was any activity on the part of proponent beneficiary in procuring the execution of the will, or that such influence had any connection whatever with its execution, and in the absence of such evidence the finding on the issue of undue influence could not possibly be sustained. Betz v. Lovell, 197 Ala. 242, 72 South. 500; Jones v. Brooks, 184 Ala. 115, 63 South. 978; Scarbrough v. Scarbrough, 185 Ala. 468, 64 South. 105; Curry v. Leonard, 186 Ala. 666, 65 South. 362.

Reversed and remanded.

ANDERSON, O. J., and GARDNER and MILLER, JJ., concur.

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SAYRE, J.

Appellant propounded for pro-hate a paper writing purporting to be the last will and testament of L. A. Alexander, deceased, wherein he was named as sole beneficiary and executor. Appellee’s contest was framed in several aspects, but the course of the trial indicated very clearly contestant’s contention to be twofold; that deceased had not executed the paper; and that its execution had resulted from undue influence exercised by proponent. Jury and verdict went for contestant and from the judgment denying probate proponent has appealed.

There is no need to consider in detail the several assignments of error since the court is clear to the conclusion that the evidence offered to sustain the two aspects of appellee’s contest was wholly insufficient to that end and should not have been allowed to !prevail against proponent’s motion for a venire de novo.

[1] The evidence of the two witnesses to the will was direct, positive, and unclouded, save by some testimony tending to show vagrant general statements by testator to the effect that he did not intend ever to make a will, but would let the law dispose of his estate, and some dubiously established expressions on the part of proponent after the death of deceased, indicating his lack of knowledge that deceased had disposed of his property by will, or even, it may be conceded, that he intended to deny the existence of a will. The evidence, besides being clear to the effect already stated, discloses ample reason why deceased should have made just the will in dispute, and the court is of opinion that the verdict should not have been allowed to stand.

[2] As for the other ground of contest, viz. that the will was the result of undue influence, proponent was entitled to the general charge. Let it be assumed for the argument that there was some evidence of confidential relations in fact between testator and proponent, and that'proponent exercised in general a dominating influence over testator, there was an entire absence of evidence going to show that there was any activity on the part of proponent beneficiary in procuring the execution of the will, or that such influence had any connection whatever with its execution, and in the absence of such evidence the finding on the issue of undue influence could not possibly be sustained. Betz v. Lovell, 197 Ala. 242, 72 South. 500; Jones v. Brooks, 184 Ala. 115, 63 South. 978; Scarbrough v. Scarbrough, 185 Ala. 468, 64 South. 105; Curry v. Leonard, 186 Ala. 666, 65 South. 362.

Reversed and remanded.

ANDERSON, O. J., and GARDNER and MILLER, JJ., concur.

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94 So. 53, 208 Ala. 291, 1922 Ala. LEXIS 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alexander-v-alexander-ala-1922.

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