Leverett's Heirs v. Carlisle

19 Ala. 80

Opinion

DARGAN, C. J.

The first instructions given by the court to the jury are entirely correct. The witnesses need not know the contents of the will they are called upon to subscribe as witnesses, and very seldom, if ever, are informed of its contents. That the testatrix knew its contents and that it contained her wishes respecting her property after her death, is all that the law ever has required.

2. The second charge is equalty free from error. Undue influence in procuring a will to be made, by which the testator disposes of his property in a manner different from wliat he would have done, had no improper influence been exercised over him, is sufficient reason for setting aside the will; but this undue influence must result from the acts and conduct of the party supposed to have exercised it. It is but the effect of his acts and conduct which is the cause. If the cause does not exist, the effect cannot. The court therefore properly instructed the jury, that to constitute undue influence some act or acts must have been done to cause the testatrix to dispose of her property contrary to her desire.

8. It is very true that trick, artifice or management which induces one to dispose of his property contrary to his wishes, will vitiate the will; and if there had been any evidence tending to show that Greene W. Carlisle had resorted to any trick, artifice or management to induce the testatrix to make the will propounded for probate, the charge requested should have been given. But if there be no evidence before the jury to base a charge upon, the court should not give it, although as an abstract principle of law it may be free from objections. This is a well settled principle; consequently we have invariably held that where a charge is refused to be given, the party wishing to revise such refusal must set out in ‘his bill of exceptions so much of the evidence as will show that the charge requested was pertinent to the evidence, and was not abstract.—Hughes v. Parker, 1 Port. 189; Hollinger v. Smith, 4 Ala. 867; McGehee v. Powell, 8 ib. 828; Milton v. Rowland, 11 ib. 733. We cannot per-cieve the slightest evidence tending to prove that Carlisle resorted to any trick, artifice or management to induce the testatrix to make the will she did, or that the will did not fully and completely contain the wishes of the testatrix respecting the disposition of her property after her death.

There was no error, under these circumstances, in refusing to give the instructions asked, and the judgment of the Court of Probate must be affirmed.