Jones v. Brooks, 184 Ala. 115 (Ala. 1913)

ANDERSON, J.

— Section 6172 of the Code of 1907, in making certain requirements as to wills, among other things provides that the instrument must be attested by at least two Avitnesses, who must subscribe their names thereto in the presence of the testator. The will in question was so attested by Carrie R. Rutledge and

Mrs. Matthews, and it matters not that the other two witnesses, Dr. Hendrick and W. T. Rutledge, signed their names when not in the presence of the testatrix, as this would not impair the validity of the will.— Conoly v. Gayle, 61 Ala. 116.

It was held in the well-considered case of Bancroft v. Otis, 91 Ala. 279, 8 South. 286, 24 Am. St. Rep. 904, which has been often followed and cited, that upon the contest of a will, the contestant does not place the burden of proof upon the beneficiary thereunder of showing that the act was voluntary, and did not result from undue influence, by merely showing a confidential relationship between the parties, but he must go further and produce evidence tending to show, active interference on the part of the beneficiary in procuring the execution of the will. — Hutcheson v. Bibb, 142 Ala. 586, 38 South. 754; Eastis v. Montgomery, 95 Ala. 486, 11 South. 204, 36 Am. St. Rep. 227; s. c., 93 Ala. 293, 9 South. 311; Mullen v. Johnson, 157 Ala. 262, 47 South. 584; Lockridge v. Brown, infra, 63 South. 524; Scarbrough v. Scarbrough, 64 South. 105. The activity, however, upon the part of the beneficiary, in order to cast the burden of proof upon him, must be more than an activity and interest referable solely to a compliance with or obedience to the free and voluntary instructions or directions of the testator. — Mullen v. Johnson, supra; Eastis v. Montgomery, supra.

Applying the foregoing rule to the case at bar, we are ,of the opinion that the only activity or interest shown by this contestee was in attempting to get the testatrix to sign a certain paper prepared by him at her request, and after repeated suggestions from her that she wished to make her will leaving him all of her property, and after she had repeatedly expressed a desire and intention to will him her said property to divers

and sundry persons. It also appears that, after the paper was written by this contestee and was shown, or handed, to his wife, she deemed it insufficient,. and for that or other reasons declined to sign it; that he did not urge or insist upon her signing it, but immediately destroyed it. It may be true that he brought the scrivener of the present will to the house, W. T. Rutledge, but the evidence shows that he went for said Rutledge and his wife in order to have company and assistance in his home while his wife was undergoing a surgical operation then in contemplation by the physicians; and the proof further shows that he made no mention of a will to any one, and that no mention was made of a will until the said Rutledge reached' the house and was informed by Mrs. Jones that she wished him to prepare her will, and there is no evidence that this contestee urged or requested his wife to make such a will. We do not think that the evidence showed silch activity on the part of this contestee as would cast upon him the burden of proof as to undue influence, but, if it did, we think that the evidence, when taken in connection with the surrounding circumstances and the conduct of the contestee, is sufficient to overcome all presumption of ■ undue influence and to show that the making of the will was the voluntary and untrammeled act of the testatrix. The disposition of the property to the husband was the natural rather than unnatural thing for her to do, she having no living descendants or parents, and was in pursuance of the previous and often repeated determination to make such a will, and which determination she had often expressed to disinterested persons. It also appears that the contestee, knowing that the surgical operation might prove fatal or dangerous, insisted on going ahead with it without executing the will if a delay was harmful or dangerous, and became reconciled over the slight delay only after being informed

by the physicians that they could wait for the preparation and execution of the will.

After the contestant makes out a case which would cast the- burden upon the beneficiary, the beneficiary may overturn the presumption by proof of competent, independent advice and counsel, “or by any other evidence which satisfies the judicial conscience that the gift was the voluntary and well-understood act of the testatrix’s mind.” — Scarbrough v. Scarbrough, and Mullen v. Johnson, supra. We do not understand the rule to be that this presumption can be overcome only by evidence showing that the testator had independent advice, but think that it may be overcome by any kind of legal evidence which would show that the act was voluntary and not the result of the undue influence of the beneficiary. There is an expression in the case of McQueen v. Wilson, 131 Ala. 606, 31 South. 94, which indicates that' the presumption can only be overcome by proof of independent advice, but we do- not think that the court meant to hold, or that it did hold, that it could not be overcome by evidence of other facts sufficient to show that the act was voluntary whether the testator had independent advice or not. At least-the recent decisions do not indicate that the contestee would be confined to or compelled to prove this one fact in order to overturn the presumption. — Scarbrough v. Scarbrough, supra; Mullen v. Johnson, supra; Hawthorne v. Jenkins, 182 Ala. 255, 62 South. 505; Harrison v. Rodgers, 162 Ala. 515, 50 South. 364.

The probate court erred in rejecting the will, and the said decree is reversed, and one is here rendered ordering that the same be admitted to probate, and the cause is remanded.

Reversed, rendered, and remanded.

McClellan, Sayre, and Somerville, JJ., concur.