Coghill v. Kennedy

119 Ala. 641

• Court: Supreme Court of Alabama
• Decided: July 1, 1898
• Status: Published

Opinion

BRICKELL, C. J.

The appellant, in the capacity of executor, propounded for probate two instruments in writing; the one purporting to be the last will and testament, and the other a codicil thereto, of Leonora Kennedy, deceased. The validity of the writings was contested by the husband and a sister of the deceased, one of her next of kin. The assignments of error are numerous, and we propose to consider them in the order in which they have been argued by counsel.

A jury having been summoned to try the issue joined between the parties, in the course of its organization five of the persons summoned, in response to questions asked by the proponent, stated that they had expressed an opinion as to the validity of the will, and were challenged for cause by the proponent. The court then inquired of each of the first four challenged if he had formed an opinion that would bias his verdict, and if he was open to conviction. The first question having been answered negatively, and the latter affirmatively, the challenge was overruled, and they were put upon the proponent for peremptory challenge. The fifth, on inquiry of the proponent, stated that he had. expressed an opinion as to the validity of the will, and was challenged for cause, and the challenge overruled. The court, in these rulings, was not in error. The Civil Code, Avitli a single exception, incorporated in the Code of 1896 as subdivision 11 of section 5016 of the Criminal Code, does not declare or define the constituents of a challenge of a juror for cause. There is no more than the general proAdsion that in civil cases jurors are drawn, summoned, impanneled, and sworn, as directed by the provisions of the Criminal Code. — Code, 1886, §2750; Code, 1896, §2654. The practical construction has been that whatever are the disqualifications of jurors prescribed by the Criminal Code, not by their terms applicable to criminal cases only, are disqualifications in civil cases. A juror, having a fixed opinion as to the guilt or innocence of the defendant Avliich Avould bias his verdict, is disqualified by the Criminal Code. — Cr. Code, 1896, §5016, subd. 7. And a juror in a civil case, having such an opinion in reference to the matter in issue, is disqualified by the statute, and upon the principles of the common Iuav. — 1 Thom. Trials, §§71-88. The mere formation and expression of an opinion is not disqualifying. There must be in it the element of positiveness Avhich would control the juror in the jury box. — Bales’ Case, 63 Ala. 30; Carson’s Case, 50 Ala. 134; Hammil’s Case, 90 Ala. 577. Nor is the formation or expression of an opinion, though the opinion is so positive as to constitute challenge for cause, unless the juror is prejudiced against the party challenging. As to the direction of the opinion — Av’liether it was favorable or unfavorable to the Avill — the jurors were not interrogated by the proponent, and he Avas not in condition to interpose a challenge for cause. — 1 Thomp. Trials, §71.

The mode of contestation of the probate of a will before the court of probate is prescribed by the statute. Code, 1886, §1989; Code, 1896, §4287. The contestant must file “allegations in Avrlting that the Avill Avas not duly executed, or of the unsoundness of mind of the testator, or of any other Adalid objection thereto; and thereupon an issue must be made up, under the direction of the court, between the person making the application as plaintiff/and the person contesting the validity of the will as defendant; and such issue must on application of either party be tried by a jury.” The rulings of the court touching the paper purporting to be a notice of contest, it is unnecessary to consider, as they could not have been harmful to either party, and proper pleading was subsequently filed, upon which issues were formed under the direction of the court; and it was upon these issues the trial was had, and the verdict rendered. We do not regard the demurrer to the third and fourth pleas, or specifications of grounds of contest, as well taken. They allege undue influence exercised over the mind of the testatrix by the proponent, or other members of his family. In addition to the facts averred in the third, the fourth avers the existence of confidential relations between Maggie Coghill and the deceased, together with activity and participation on her part, and by other members of the family, in and about the preparation and execution of the will. The undue influence which will invalidate a will need not be exercised by all the beneficiaries, nor by any of them. If fraud or undue influence affects the whole will, though exercised by one only of the beneficiaries, or by one not named therein, no part of it can stand. — Florey's Ex’rs v. Florey, 24 Ala. 248.

It is, therefore, no objection to a plea that it attacks the whole will, and charges the exercise of undue influence by one only of the beneficiaries. Nor are the pleas objectionable on the ground that they state mere legal conclusions, and do not aver facts constituting undue influence. The third plea charges that the deceased at the time of the making of the will was under the domination and control of certain named members of the Coghill family, or some of them, and that the will is the result and product of the undue influence exercised by them, or some of them, over the mind of the deceased, and was not the result of the exercise of her free volition. This must be treated as equivalent to an averment that the persons named, or some of them, acquired a dominating influence over the mind of the deceased, which destroyed her free agency, and constrained her to execute the instrument against her will; and, thus treated, it is sufficient. To require the- contestant to state in the plea the means by which the influence was acquired, and the manner in which it was exercised, would be to require that which, in the great majority of cases, is impossible, since the knowledge of these facts rests entirely in those who are most interested in withholding it. The fourth pipa, after reciting the weak mental and physical condition of the deceased, caused by sickness which confined her to bed, and the fact that Maggie Coghill, who had been engaged as nurse, assumed and exercised the entire control and management of the sick room and person of deceased, alleged that the said Maggie Coghill and the proponent, with other members of the family, all of whom were strangers to the blood of testatrix, conceived the scheme and entered into a conspiracy to take advantage of the feebleness of the deceased and to overcome her will power, and induce her by means of their relation of confidence and otherwise to execute the instrument offered for probate, and that they carried out this conspiracy in manner and form as follows, viz: They excluded the relatives and friends of deceased from her room and society, while the entire Coghill family were freely admitted to her presence and were constantly with her; they procured the execution of the will without the knowledge of any of her family or relatives, although her husband and sister were living in the same house with her; they furnished instructions for the drawing of the will, employed the lawyer to draw it, procured the witnesses, had it executed secretly, and retained its custody after execution; “and that said will was executed by said deceased while she was under the undue and fraudulent influence of the said Coghill family, and in their presence, or of some of them, without any competent and independent advice, and is wholly the result of such influence and fraud.” We are of opinion that this is a sufficient plea of undue influence, without reference to any presumption arising from the confidential relations supposed to have existed between Maggie Coghill and the deceased, and activity in and about the preparation and execution of the' will. We need not decide whether the facts averred are sufficient to show the existence of such relations. Proof of the existence of confidential relations between a testator and beneficiaries under the Avill may be made under a proper plea of undue influence, although there is no averment in the plea of the existence of such relations. The existence of these relations does not, of itself, constitute any defense to the probate of the will, but merely changes the burden of proof, when coupled with activity in and about the preparation or execution of the will. Under the third plea, evidence was admissible to prove every fact averred in the fourth, and hence, even though the fourth plea were defective, the overruling of the demurrer would have been error without injury. It is objected that the plea does not show any fraud or deceit was practiced upon the deceased. Undue influence is itself fraud, or a species of fraud, and any plea which shows the exercise of undue influence necessarily shows fraud. Deceit is the use of any trick, false statement, secret device, or false pretense to defraud anotherand it is clear that undue influence may be exercised without the use of any of these means, — for example, through the imposition of fear, or constant importunity, to which the testator yields from a desire for peace. It was not necessary to aver -that fraud or deceit was practiced upon the testatrix.

It is earnestly contended by counsel for appellant that there is no evidence of undue influence in the record, and that the trial court erred in its refusal to give the general charge in favor of the proponent on this issue. The argument in support of this contention is directed rather to the weight that should be accorded to the evidence in the record, and this was a question to be determined solely by the jury. If there Avas any evidence in the case, the tendency of or just inference from which Avas that undue influence had been exercised, it was proper to submit the issue to the jury. The physical condition of the testatrix, her previous intention, expressed two or three weeks before the will was signed, to make a disposition of her property different from that made by the will, in Avhich none of the Coghills were to share, except Maggie, and she to an extent much less than the will provides; the fact that three days before the execution of the will she had no property which she could dispose of by will, except a few shares of stock, and that the proponent endeavored to pursuade, and succeeding in pursuading, the deceased’s husband, who was of Aveak mind, to transfer to her a large amount of property, although she was at the time confined to her bed with cancer of the womb, a disease which was knoAvn to be fatal; the impaired mental condition of the husband, rendering him incompetent to transact business, and the effort to induce the sister of testatrix to leave the house; the execution of the Avill without the knowledge of the husband and sister and. other relatives, and the keeping its execution a secret from them, and, when its execution finally became known to them through the testatrix herself, the denial and withholding of all knowledge of its contents; the exclusion of the friends and relatives of the deceased from her bedside, while all the members of the Coghill family were freely admitted; the fact that the latter were strangers to her blood, and the previous dislike entertained by testatrix for the proponent, and the latter’s activity in and about the preparation and execution of the will, — all these and many other facts are to be found in the tendencies of the evidence. However cogent may have been the evidence offered by the proponent in rebuttal of these tendencies, it could not operate to withdraw their consideration from the jury. We have examined all the evidence very carefully, and without discussing it here in detail, we are convinced that it Avas sufficient to justify the submission of this issue to the jury, even if there had been no evidence tending to show the existence of confidential relations betAveen the testatrix and Maggie Ooglxill or the proponent, and activity on their part in and about the preparation or execution of the will. To authorize the application of the doctrine declared in Bancroft v. Otis, 91 Ala. 291, and followed in many subsequent cases, that the existence of confidential relations between a testator and a principal or large beneficiary, coupled with activity on the part of the latter in and about the preparation or execution of the Avill, casts upon him the burden of showing that the Avill was not induced by coercion or fraud, directly or indirectly, it is not necessary that the relation be that technical fiduciary relation imposed by laAv upon persons standing in peculiar positions of trust, such as guardian and Avard, trustee and cestui que trust, attorney and client, parent and child, and the like. There are many other persons standing in confidential relations in which the principle applies; and it may be stated generally that the relation'exists Avherever confidence is reposed and accepted, and the one has it in his poAver, in a secret manner, for his own advantage, to sacrifice those interests of the other Avhich he is bound in honor and good conscience to protect. — 1 Story, Eq. Jnr. §323. The rule embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another. If there is any evidence tending to show the existence of such relations on the part •of a large beneficiary, and activity on his part in and about the preparation or execution of the will, it is the duty of the court to submit to the jury the ascertainment of their existence as a fact; and this necessarily involves the submission of the, issue of undue influence, since, if it is found as a fact that there did exist such relations and activity, the law will presume the exercise of undue influence, and cast upon the beneficiary the burden of rebutting the presumption. We do not doubt that such relations may exist between a patient, who is confined to her bed with a fatal disease, and her nurse, who has entire charge of her sick room and person, a.s they may exist between a medical adviser and his patient; and we think the evidence in this case, together with the just and reasonable inferences to be drawn from it, was sufficient to justify the court in submitting to the jury the ascertainment of the fact of the existence of confidential relations between Maggie Cog-hill and the testatrix. There is also evidence tending to show that the proponent, a brother of the nurse, occupied such relations, and was active in and about the preparation and execution of the will. It is shown by his own testimony that the testatrix believed she had no one other than himself to depend on. The contention of counsel that this activity, in order to create the legal presumption against the validity of the will when coupled with confidential relations, must be on the part of the person who occupies such relations, or of a beneficiary, cannot be sustained. In the case of Henry v. Hall, 106 Ala. 95, we decided that where there was a devise to the Avife of one between whom and the testator there existed' such relations, and who was active in and about the preparation and execution of the will, these facts brought the devise to the wife under the influence of this principle,- and cast upon her the burden of showing that it was not induced by coercion or fraud. And. we regard it as a legitimate application of the doctrine, resulting from the reason upon which it is founded, that if the menbers of the family have a common scheme or purpose to induce a person to execute a will in favor of any members of the family, one of whom occupies these confidential relations, and another, in the execution of thé common purpose, actively participates in the execution of the will, by which legacies are given to various members of the family, the legal presumption arising from these-facts will cast upon each of these beneficiaries the burden of showing the absence of undue influence. We do not decide, however, that the existence of such relations between one member of the family and the testator, together with the necessary activity on his part, without any evidence of conspiracy or common purpose, will necessarily raise a presumption against the validity of benefits given by the will to all the other members of the family.

We will next consider some of the many exceptions to the rulings of the trial court on the objections to the admission of evidence. The inquiries opened up by the issue of undue influence are always difficult of solution, because of the secrecy with which the acts constituting the undue influence are committed, and the evidence admissible under the issue covers a wider field than usual in ordinary litigation. While the investigation is directed to the particular time at which the will was executed, yet evidence of facts preceding and subsequent to that particular time is often competent and admissible. Chandler v. Jost, 96 Ala. 602; Kramer v. Weinert, 81 Ala. 415. Like fraud, it is rarely susceptible of proof, “except by a comprehensive and comparative view of the actions of the party to whom the fraud is imputed, and his relative position a reasonable time before, at, and a reasonable time after, the time at which the act of fraud is alleged to have been committed.” — Snodgrass v. Bank, 25 Ala. 174.

The will was signed December 3, 1894. The evidence ‘tends to show that prior to December 1st the testatrix had no property which she could dispose of by will, except a few shares of stock, but that her 'husband, A. M. Kennedy, possessed real and personal property of considerablé value. The theory of the contestants was that the proponent and his family, in the execution of a common purpose to obtain a part of this property, knowing their power over the testatrix, first induced the husband to transfer valuable property to the testatrix, and then, by tbe exercise of undue influence, constrained the.latter to execute the will by which the property was ■ devised to them. In support of this theory, which was certainly a legitimate one iipon which to try the case, contestants introduced the testimony, against the objection of proponent, tending to show,that the husband was of weak mind, and incapable of protecting,himself or his wife, and that on -December 1, 1894, two days before the will was signed, he transferred to his wife valuable property, consisting of real estate and stocks, and that 'this transfer was induced by the Coghills, the proponent taking an active part in the preparation and execution of the papers evidencing the transfers. We are of the opinion this testimony was admissible. Under the contestants’ theory, as stated above, the procuring of these transfers was a part of the same scherhe and common purpose in the carrying out of which the execution of the will was procured, and for this reason evidence of the-former was admissible. It is shoAvn that the only inmates of the home of testatrix, besides Maggie Coghill and the servant, Avere her husband and her sister, who was about 67 years of age. It is always competent for the contestant to show what opportunities existed, or were created by the persons charged with the exercise of undue influence, for procuring the execution of a will in their favor. Hence it was competent to shoAv that the husband of the testatrix, her natural protector, was of weak mind, and unable to protect her against the fraudulent designs of others, and that efforts Avere made by some of the family of proponent to induce the sister to leave the house and go to Goosada prior to the execution of the will, and that they did induce her to be absent from the house on the day the codicil was signed, in orr der that the testatrix might be alone with them. It is upon the same or similar grounds that evidence is admissible to sIioav that the friends and relatives of the testatrix were excluded from her bedside and society. No error was committed,in the admission of testimony tending to show any of these facts.

The sister of the deceased, a witness for contestants, in reply to the question whether she had ever heard the deceased make any declaration of affection for any of the Coghills, said she had never heard her express any affection for them, and that “she was wrecked and torn by the Coghills.” The court overruled a motion by proponent to exclude the words quoted, made upon the ground that they were “illegal, incompetent, and irrelevant.” The witness was then asked by the contestants what she meant by the expression “wrecked and torn by the Cog-hills,” to which she replied, “because she was always bothered by them so.” No objection was made to this explanation. An objection that testimony is illegal is general, and does not raise the point that it is a mere conclusion. — Steiner v. Tranum, 98 Ala. 319. Considered in connection with the explanation, to which no objection was made, the testimony was relevant, as tending to show the feelings and state of mind of testatrix towards the Coghills, and no error was committed in refusing to exclude it. The same witness, in reply to the question, “Did you notice anything in the appearance of Mr. Kennedy that had any effect on Mr. Ooghill?” said, “I never thought it was anything on Mrs. Kennedy’s side. I thought they were a-chiseling Mr. Kennedy out of his money, not her.” The latter part of this answer was clearly illegal,' and should have been excluded on proper motion; but the proponent, by a single motion, moved to exclude both the question and answer, although the record shows that separate exceptions were reserved to the overruling of the motion. The error, if any, must be predicated on the action of the court in overruling the motion, and not on the character of the exception; and as the question was relevant, and might have elicited legal evidence, the motion, in the form made, was properly overruled.

There are many exceptions in the record to the overruling of objections to questions which were not objectionable in form, but which might have elicited both legal and illegal evidence, and it does not appear that objections were made to the answers to such questions. If illegal evidence is contained in the reply to such questions, the objection should be made to the reply, and the exception directed against the admission of the answer. So, where an answer is not strictly responsive to the question, though apparently suggested by it, the objection to the question does not cover the independent matter thus elicited. — Eagle & Phoenix Mnfg. Co. v. Gibson, 62 Ala. 369; E. T., V. & G. R. R. Co. v. Bayliss, 74 Ala. 150. There are exceptions to the overruling of general objections to evidence, a part of which was clearly legal. 3 Brick. Dig. p. 443, §570.

There were many objections to the admission of testimony to show declarations made by the testatrix between the date of the execution of the will and her death. The will was executed December 3,1894; the codicil was signed February 2, 1895, and' testatrix died February 13,1895. Undue influence, to be effective to invalidate a will, must so operate upon the mind .of the testator as to destroy his free agency, and constrain him to make a disposition of his property such as he would not have made of his free will. When made an issue, therefore, two lines of inquiry are opened up: First, the conduct of those charged with the exercise of undue influence; and, second, the effect of this conduct upon the mind of the testator — that is, the mental state produced by it. • And this latter inquiry necessarily involves an inquiry into the entire mental structure and development of the testator, not only at the time of the execution of the will, but prior thereto and for a reasonable time thereafter. It has been said that the successful exercise of undue influence presupposes a weak and impaired mind; that, in the absence of actual fraud or deceit, a strong and vigorous mind cannot be successfully operated upon by undue influence. Whether this be strictly true or not, it is clearly competent to show any weakness of mind or peculiarities in the mental structure of the testator, whether natural or caused by disease, such as to render it probable that he was liable to be easily influenced. And, as these qualities of the mind are more or less permanent, the inquiry properly covers a reasonable period before and subsequent to the execution of the instrument. It would be strange, indeed, if the mind of one who had been constrained to execute so solemn an instrument against his 'will should immediátely upon its execution resuihe its independence of thought and action, and leave no trace of the effect produced by the pressure which had been brought to bear upon it. Hence, inasmuch as the mental condition of a person can be determined only by his acts and declarations, these are admissible, whether made a reasonable time before or after the execution of the will, to establish everything pertaining to the testator himself — -his memory, intentions, idiocyncrasies, prejudices, affections, relations with and feelings towards the beneficiaries and all those who, if he had died intestate, would have been entitled to share in the distribution of his estate, and towards those charged with the undue influence. But they are not admissible when made after the execution of the will, unless part of thé res gestee, to establish the acts which constitute the undue influence; as to these they are mere hearsay. — -Shailer v. Bumstead, 99 Mass. 112; Russling v. Russling, 36 N. J. Eq. 603; Boylan v. Meeker, 4 Dutch, 274 ; 27 Am. & Eng. Encyc. of Law, 505. It follows that testimony was admissible to prove any declarations of the testatrix made after the execution of the will, for the purpose we have stated, but not for the purpose of establishing acts of undue influence. Many of the exceptions reserved were to the overruling of objections to questions calling for conversations with and declarations of testatrix after the execution of the will, and no motions to exclude the answers were made. As we have said, error cannot be predicated on the action of the trial court in overruling objections to questions which are unobjectionable in form, but which may elicit both legal and illegal evidence. If the answers' to such questions disclosed declarations which did not tend to show the mental condition of the testatrix, a motion to exclude the same should have been made.

The sister of testatrix testified that on Sunday morning preceding the latter’s death she Avas called to her bedside, and the testatrix said: “Amelia, all I have on earth is yours. Don’t be bothered. I am so afraid they Avill bother you about the avíII, as I have been bothered by them.” The witness said: “Nora, did you ever know me to bother anybody?” The testatrix replied: “No; I don’t mean you. Not you, the Coghill family. Put them out of the house; put them out of the house.” The proponent moved to exclude the Avords: “I don’t mean you, but the Coghill family. Put them out of tho house.” This conversation was but a Aveelc after the execution of the codicil, by which valuable property was given to the proppnent and other members of the family. The part of the conversation objected to was clearly admissible as tending to shoAV the feelings of testatrix toAvards these beneficiaries.

The testimony as to Avhat occurred in the house ’two or three nights before the death of the testatrix, on the occasion when Maggie Coghill said: “I am not going out of that room to-night. • I am going to put Mollie Kennedy out of the room, if she enters Mrs. Kennedy’s room to-night. I am mistress in this house, and I will 'have you and everybody else know it,” — was properly admitted. It tended to show Maggie’s control of the sick room, and a continuation of the plan to exclude from the sick room and society of the testatrix her friends and relatives, even up to the time of her death. Nor was there error in refusing to exclude the testimony of Amelia Kershaw as to the conversation between Maggie Coghill and herself on the Friday after the burial of testatrix, in which the former said: “Miss Amelia, you will be sure to be satisfied when you hear that will read, for me and you will be side by side in the court house, and what you don’t understand I will tell you. Joe is going to try to break this will, and William is going to fight that will for you.” It was admissible as a declaration by one of the conspirators made in an endeavor to carry out the common object. The conspiracy had not expired, if it existed. Its objects were not accomplished by the mere obtaining the writings purporting to be testamentary. They were of no value without probate, and the common purpose must have contemplated and embraced probate of them.

The objection to the question propounded to Dr. Wood, as to whether the mental condition of the husband of testatrix was perceptible to those who associated with and talked with him, was properly overruled. We have already said that evidence as to the mental condition of the husband was relevant. The testimony elicited was that any person who frequently associated with him would readily observe that he was of unsound mind; and this was relevant as tending to show that the proponent and other members of his family knew of his mental condition when they endeavored to induce him to transfer his property to his wife, the testatrix. But we are of the opinion that the court erred in admitting in evidence the will of A. M. Kennedy, the husband. We are unable to perceive anything in the contents of this will that tends in any way to elucidate the issues involved.

The part of the general charge of the court to which an exception was reserved states a correct proposition of law. It asserts the doctrine laid down in Bancroft v. Otis, 91 Ala. 279, and many subsequent, cases, that the existence of confidential relations between the testator and principal or large beneficiaries thereunder, coupled with "activity on the part of the latter in and about the preparation or execution of the will, raises a presumption of undue influence, and casts upon, the latter the burden of showing that it was not induced by coercion or fraud on their part, directly or indirectly.

Charge “a,” taken in its entirety, asserts no more than the proposition that if the fraud or undue influence on the part of one or more of the legatees or devisees affects the whole bill, then no portion, of it can stand. — Florey’s Ex’rs v. Florey, 24 Ala. 248.

Charge “e,” is free from error, and finds support in Leverett v. Carlisle, 19 Ala. 80.

There was no error in the instruction marked “h.” It may be argumentative, but that is not matter of error. Nor was there error in giving instruction “k.”

Charge “1,” asserts that “the presumption of undue influence does arise, and it is incumbent upon the proponent to satisfy the jury that the will expresses the free and intelligent wishes of the testator,” upon proof by the contestant of certain facts, among which is the ex- < istence of “certain relations between the testator and ' the beneficiaries well caluclated to 'give them an undue influence over him.” We cannot treat the words last quoted as a sufficient statement of the existence of those confidential relations between the beneficiary and the testator, which, coupled with activity in and about the preparation of the will, cast upon the former the burden of showing that it was not the result of coercion or fraud. The existence of a relation which merely gives one the power to unduly influence another in the execution of his will, unaccompanied by any element of confidence and .trust reposed, even though there is the necessary activity in and about the preparation and execution of the .will, does not raise the presumption of. undue influence. Neither of the facts stated in the charge, nor all combinéd,'. gives rise to any legal presumption. The charge, moreover, is "erroneous because it exacts too high a degree of proof in rebuttal of the facts stated in the charge, in that it requires such proof to “satisfy the jury.” Even where a legal presumption is to be overcome, the law does not require so high a degree of proof. The true measure of proof, to“ justify a verdict based upon it, is that it shall reasonably satisfy or convince the minds of the jury. — Torrey v. Burney, 113 Ala. 496; Vandeventer v. Ford, 60 Ala. 615; Prince v. State, 100 Ala. 146 ; Rowe v. Baber, 93 Ala. 425.

We have already said there was evidence requiring the submission to the jury of the issue of undue' influence, and also the question whether confidential relations existed between the testatrix and Maggie Coghill or William Coghill. For this reason charges 1, 3, 4, 5, 6 and 7, requested by the proponent, were properly refused. They in effect, request the general charge in favor of the proponent on these issues. Fraud is so intimately connected' with undue influence that a charge instructing the jury that there is no evidence'that any fraud or coercion was racticed on the testator cannot be given, when there is any evidence tending to show undue influence. While there may be a kind of fraud practiced upon a testator which would not amount to undue influence, as generally defined, yet the.exercise of undue influence’is fraud, and necessarily involves the idea of coercion, either- mental, moral, or physical. ' Charges 3 and 4 are subject to these criticisms. They. are faulty, also, because- they ignore the evidence tending to show the existence of confidential relations and activity in the preparation and execution of the will, the effect of which, if found to exist, is to raise the presumption of fraud and coercion, in the absence even of any affirmative evidence that they were practiced. Charge 2 instructs the jury that they “must find a verdict for the proponent on the issue of‘fin soundness of mind of Mrs. Kennedy.” Counsel for appellees admit that there was no evidehce of unsoundness of mind, but contend that the charge was properly refused, because a similar charge had already been given at the request of the proponent, and the refusal was, therefore, without injury. This is the doctrine of the later cases. A. G. S. R. R. Co. v. Burgess, 116 Ala. 509; K. C., M. & B. R. R. Co. v. Burton, 97 Ala. 242; L. & N. R. R. Co. v. Hurt, 101 Ala. 36; Compton v. State, 117 Ala. 56.

Charges 8, 9, 18 and 21 exact too high a degree of proof, in requiring the verdict to be based upon evidence which “satisfies” the minds of the jury, and were properly refused for this reason. They are also misleading, since they seem to require affirmative evidence of undue influence, whereas, if the existence of confidential relations, and activity in and about the .preparation or execution of the will, should be found from the evidence, the law would presume undue influence witho.ut any affirmative evidence of the fact, and the burden would be on the proponent to rebut the presumption. — Higginbotham v. Higginbotham, 106 Ala. 318.

We have already shown that there was sufficient evidence to make out a prima facie case of conspiracy or common purpose among the members of the Coghill family to procure the execution of the will. Charge 10 was, therefore, properly refused. Charge 11 asserted that the jury was not authorized to find the will or codicil invalid as to Bella Coghill, because there is no evidence to show that she exercised any fraud, deceit, or coercion; and charges 12, 18, 14 and 15 assert the same proposition with respect to each of the other members of the Coghill family. Each of these charges was objectionable, because it assumed that a legacy in favor of one beneficiary could not be declared invalid on the ground that it was procured by undue influence or fraud, unless such beneficiary exercised the influence or fraud, while, as has been heretofore stated, it is entirely immaterial by whom the undue influence or fraud is exercised, all the ^Legacies which are the result thereof being invalid. They are bad for the further reason that they ignore the question of conspiracy, and the presumption arising from the existence of confidential relations and activity in the preparation or execution of the will. Charges 16 and 17 were properly refused for reasons already pointed out. Charge 20 was manifestly erroneous. Whatever of weight may be given to the facts stated therein, being legally in evidence, they were proper subjects for the consideration of the jury. For the errors pointed out, the decree of the court of probate is reversed, and the cause remanded.

Reversed and remanded.