Dunlap v. Robinson

28 Ala. 100

Opinion

CHILTON, C. J.

1. The first assignment of error, namely, that the court should have overruled the demurrer to the contestants’ third plea or specification, cannot be sustained ; first, because the issue is to be “made up under the direction of the court”, (Code, § 1634); and, secondly, because, if the insane delusion went to the whole will, the contestants have had all the advantage of it under the 5th specification ; but if only to a portion of the will, it is too indefinite, and therefore bad. It is clear, however, that any valid objection to the will, by reason of want of sanity of mind on the part of the testator, could have been urged under the issues which were before the jury; so that the contestants, having had the full benefit of all their proof, which could have availed under the third plea or specification, have not been injured, and cannot complain. — Shehan v. Hampton, 8 Ala. Rep. 942; McKenzie v. Jackson, 4 ib. 230; Rakes v. Pope, 7 ib. 162; Reav. Digest, p. 319, § 71, and cases there cited.

2. The contestants took a very wide range' in their efforts to impeach this will. One attempt was to show that proponent's wife had procured him to make it, in consideration of her admitting him to. have adulterous connection with her. To establish this fact, many questions are propounded to witnesses by the contestants — -his intimacy with the family ; his staying all night at Robinson's house when he was absent; his intimacy with the children of the family ; whether they did not sleep with him; whether he did not make presents to them and to their mother, &c., &c. Now, to rebut any presumption, attempted to be raised by such circumstances, of an adulterous intercourse between the supposed testator and Mrs. Robinson, it seems to us entirely proper for the other side to be allowed to prove circumstances tending to show that their intimacy was characterized by religious sentiment, if it was not the result of a common religious sympathy. The fact that they frequently went together to the class-meetings of the Methodist church, during the time of their alleged illicit intercourse and intimacy, tends to show that such intimacy was prompted by a sentiment of a virtuous, religious character, and was not meretricious. True, the spirit of evil may invade the most sacred precincts, and men may be hypocrites, — may put on the garb of religion as a cloak for the vilest enormities ; yet these are exceptions. Whatever may be said by the unjustly censorious, experience demonstrates that such meetings are usually frequented by the good and the virtuous, as a means of spiritual improvement, and are anything but agreeable resorts for the wicked and abandoned. Under the view we have taken of this evidence, as merely rebutting the presumption of improper conduct as arising out of the intimacy between the parties, we think it was properly received.

3. Every person of sound mind, and who labors under no legal disability, has the right to dispose of his property by will as he pleases; and whether his will be prompted by partiality, pride, or caprice, is immaterial, if the will is not obtained by fraud or undue influence. — Coleman v. Robinson's Exrs., 17 Ala. Rep. 88. There is certainly no reason, founded either in morals or public policy, why a man who was never married, but who had children,, the offspring of an adulterous sexual intercourse, should not provide for them. Our law compels the putative father to provide for his bastard children ; and the policy which lies at the basis of such legislation would no less sustain .a voluntary provision made by one who had violated the marriage bed in their procreation. The books furnish many cases of provision by will for illegitimate offspring; and if this was the testator’s object in the will before us, we know of no case which holds the will void for that reason. — See Jarman on Wills, vol. 2, pp. 93 to 112. The first charge given was, therefore, free from objection. The same reasoning equally applies to the second charge, and shows that it is free from error.

4. The third charge asserts, that the burthen of proof is on the contestants to show that the will was procured by undue influence, or fraud, or agreement. The onus probandi is on the party propounding the will, as to his testator’s capacity .to make a will, and its due execution by him. When this proof is made, the onus is generally discharged, (Cranmer v. Crumbaugh, 3 Maryland Rep. 491); and if the contestants say there was fraud or undue influence, the onus is upon them to show these, as asserted in this charge. — Jarman on Wills, vol. 1, pp. 72, 73, note 5, 2d Amer. ed.

5. If we rightly comprehend the first charge prayed for by the contestants, it was property refused by the court, for reasons similar to those before stated. It assumes that, “ if the will is the direct offspring and result of long-continued sexual intercourse between the testator and the mother of the legatees, Mrs. Robinson, and of an influence acquired by her over him by such intercourse, and but for such influence he would not have made such disposition of his property as is made by this will, then they must find for the contestants.” It will be observed that the charge does not proceed upon the idea that Mrs. Robinson actively interfered in procuring the will to be made, using an influence which deprived the testator of the freedom of disposing as he pleased of his estate ; but that if the testator chose, or was disposed to give the property as by this will it is appropriated, in consequence of his long-continued sexual intercourse with Mrs. Robinson and the influence which she acquired over him by reason of such intercourse, then the will is void. In other words, to give a simpler illustration of the idea, if a man, who is unmarried and living the life of a bachelor, prostitutes a woman, violates the marriage bed, and, after many years of continuous illicit cohabitation, is influenced by the silent operation of these circumstances to make provision by his will for her children, who may be the issue of such illicit intercourse, the will is void. Such is not the law. The case of Farr v. Thompson, Cheves’ Rep. 37, is a much stronger case than the one presented by the charge, and yet a provision for the prostitute was held valid. Undue influence, as that term is understood in this connection, must be such as, in some measure, destroys the free agency of the testator, and prevents the exercise of that discretion which the law; requires a party should possess as essential to a valid testamentary disposition of his property. It is not enough that by the testator’s own improper conduct he has brought about a condition of things, over which, at the time of making his will, he had no control to change or remedy, but which, as a moral inducement, operated upon his mind, influencing him to make a' disposition of his property which, under other circumstances, he might not have made. .If the testator was guilty of the enormity attributed to him in the charge, of continuous shameful intimacy with a married woman for many years, it would certainly not tend to mitigate his offence, should he have a spurious offspring dependent on her or her husband for support, to cast them pennyless upon the world. He may well be influenced, under such circumstances, by a desire to repair the injury he has done, so far as lió can do so, by providing for their education and support. If, however, the will was made in consideration, of promises of future illicit cohabitation, it would be clearly void. This, however, is not the point of the charge. — See, as to the question of undue influence, Gilbert v. Gilbert, 22 Ala. Rep. 529; 1 Rich. Rep. 80; 1 Speers, 93. To vitiate a will, ifc must be such as, in some degree, to destroy the free agency of the testator, and constrain him to do what is against his will, but what he is unable to refuse or too weak to resist. — 1 Jarman, (2d Amer. ed.) p. 36.

6. The second charge prayed for by the contestants was properly refused by the court. It was well calculated to misleadu the jury, withdrawing their minds from the true issues in the cause, and making the validity of the will depend, by implication, upon an immaterial issue, — namely, whether the testator had illicit intercourse in his lifetime with Mrs. Robinson. It assumes that that is an issue to be determined, — a fact to be found, one way or the other, by them. Indeed, it is properly a part of the preceding charge, on which it is predicated, which sought to obtain a judicial announcement to the jury of the effect of such cohabitation upon the will, and to obtain for it an effect which we have seen it could not properly exert. Having, by the first charge, settled upon the legal effect, the second is proposed as limiting the means for its ascertainment; that is, in determining whether the parties had sexual intercourse, the jury must not regard what the testator said at the time he made his will as to his spiritual condition, — “ his hopes for the future.” Now we have shown that such intercourse, though it gave rise to the will as furnishing a motive to provide for offspring, or to repair a wrong, does not invalidate the will. Indeed it tends to strengthen it, since otherwise the testator might be left without a rational motive for selecting strangers instead of his relatives as the objects of his bounty. But, be this as it may, it is certain no injury resulted to the contestants from the refusal of the court to give the charge, since, let the fact of adultery be found one way or the other, it can make no difference as to the result of this cause, the record showing no effort on the part of Mrs. Robinson to procure the making of the will, or the exertion of any influence which she may have possessed over him in consequence of such alleged intimacy or otherwise, to induce him to exclude his kindred, and to make the provisions which are made in the will before us.

7. The contestants, in like manner, have not been injured by the refusal of the third charge prayed for by them, further restricting the jury in their inquiry as to the alleged adultei’ous connection. But its refusal is not erroneous for other reasons. If there was any proof of Mrs. Robinson’s character, the charge asserting that there was none should have been denied, for want of conformity to the true state of the evidence. If, however, it was true that there was no proof, then the charge is purely abstract, and rightly refused for that reason. But, if it was intended to affirm that the law raised no presumption that the lady was virtuous and not guilty of adultery, requiring the opposite party, if they alleged adultery, to overcome that presumption by proof, it was incorrect as a proposition of law. In either aspect, it was properly refused. If the character of Mrs. Robinson was the legitimate subject of inquiry for the jury, they were very properly told'to ascertain it from the evidence in the cause. If it was foreign from the issue, the charge was abstract, and did no injury to the contestants; and consequently it should not bo the ground of reversal.

We have considered all the grounds assigned for error ; and are of opinion, that in none of them did the circuit court mistake the law to the prejudice of contestants.

We would take occasion, in conclusion, to say, lest we should be misunderstood with reference to the facts of this case, that our remarks respecting the illicit intercourse of the testator and Mrs. Robinson, and the illegitimacy of the four children who are the beneficiaries in this will, are predicated upon the state of facts assumed by the charges, and not upon bur view of the evidence as contained in the record. The counsel have a right to ask for instructions from the court as applicable to any state of the case which the proof tends to establish ; and in this aspect alone have we considered them. We should be sorry to be understood as affirm- ’ ing that the record exhibits any want of fidelity on the part of Mrs. Robinson towards her husband, or that the children provided for in this will are not legitimate. True, there are circumstances of familiarity and intimacy shown by one or two witnesses, which, unexplained, might furnish strong ground for suspicion, but which, when we consider the long and peculiar friendship existing between the parties, and that this bachelor was treated as a member of Mr. Robinson’s family for many years, accustomed to the familiarities, and interchanging the kindly offices which obtain among near relatives, lose much, if not all of their force, and may consist with the most upright deportment.

Let the judgment be affirmed.

Rice, J., having been of counsel, did not sit in this case.