Dolberry v. Dolberry

Supreme Court of Alabama

Dolberry v. Dolberry

44 So. 1018, 153 Ala. 434, 1907 Ala. LEXIS 139

CourtSupreme Court of Alabama

DecidedNovember 28, 1907

StatusPublished

Cited by10 cases

This text of 44 So. 1018 (Dolberry v. Dolberry) 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.

Bluebook

Dolberry v. Dolberry, 44 So. 1018, 153 Ala. 434, 1907 Ala. LEXIS 139 (Ala. 1907).

Pincite

Opinion

ANDERSON, J.

— The law does not presume undue influence in the conveyance from a parent to a child from the mere act, and, in the absence of evidence other than the conveyance and the relationship, the presumption is that it was free from undue influence, upon the theory that the parent, and not the child, is the dominant party. — McLeod v. McLeod, 145 Ala. 269, 40 South. 414. Of course, this presumption is not conclusive, and where evidence is introduced showing that the parent has reached the state of senility and is dominated by the child, it would then be incumbent upon the child to show the fairness of the transaction and that the parent acted upon free and independent advice.

It is true, in the case at bar, the evidence shows that the grantor was a very old man at the time of his death, but the deeds were executed several years before his death, and at a time when he was under the domination of no one; the only proof on the subject being that the respondents could do more with him when he was drinking than any one else. But there was no evidence that they or any one else could control or influence him in business matters. It is true he disliked some of his children, especially his son George, and favored the respon[437]*437dents and other children in the disposition of his property; but the evidence fails to show that the favored ones induced him to do so. He made the conveyances of his own volition, and the weight of the evidence shows that he acquiesced therein for more than five years before his death. In fact, the deed to Ben was placed on record several years before the grantor’s death; and, ivhile he may have controlled small portions of land, it was generally recognized as belonging to John and Ben.

The respondents were in possession of the purchase-money notes, and introduced evidence of payment, which was not overcome by complainants’ evidence. The evidence also fails to show that the respondents converted any money belonging to the estate, other than what was accounted for to the administrator.

The decree of the chancery court is in all respects affirmed.

Affirmed.

Tyson, C. J., and Simpson and Denson, JJ., concur.

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ANDERSON, J.

— The law does not presume undue influence in the conveyance from a parent to a child from the mere act, and, in the absence of evidence other than the conveyance and the relationship, the presumption is that it was free from undue influence, upon the theory that the parent, and not the child, is the dominant party. — McLeod v. McLeod, 145 Ala. 269, 40 South. 414. Of course, this presumption is not conclusive, and where evidence is introduced showing that the parent has reached the state of senility and is dominated by the child, it would then be incumbent upon the child to show the fairness of the transaction and that the parent acted upon free and independent advice.

It is true, in the case at bar, the evidence shows that the grantor was a very old man at the time of his death, but the deeds were executed several years before his death, and at a time when he was under the domination of no one; the only proof on the subject being that the respondents could do more with him when he was drinking than any one else. But there was no evidence that they or any one else could control or influence him in business matters. It is true he disliked some of his children, especially his son George, and favored the respon[437]*437dents and other children in the disposition of his property; but the evidence fails to show that the favored ones induced him to do so. He made the conveyances of his own volition, and the weight of the evidence shows that he acquiesced therein for more than five years before his death. In fact, the deed to Ben was placed on record several years before the grantor’s death; and, ivhile he may have controlled small portions of land, it was generally recognized as belonging to John and Ben.

The respondents were in possession of the purchase-money notes, and introduced evidence of payment, which was not overcome by complainants’ evidence. The evidence also fails to show that the respondents converted any money belonging to the estate, other than what was accounted for to the administrator.

The decree of the chancery court is in all respects affirmed.

Affirmed.

Tyson, C. J., and Simpson and Denson, JJ., concur.

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Bluebook (online)

44 So. 1018, 153 Ala. 434, 1907 Ala. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dolberry-v-dolberry-ala-1907.

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