Alexander v. Gibson
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SOMERVILLE, J.
The bill was filed by appellant for the purpose of contesting the validity of a will which had been regularly probated according to law. The grounds of contest are testamentary incapacity and undue influence. The chancellor sustained demurrers to the sixth and seventh paragraphs of the bill, both separately and as a whole, and the appeal is from that decree.
As last amended, these two paragraphs are manifestly intended to conjointly state the single charge of undue influence, and the sufficiency or insufficiency of the *262 allegations in support of this charge cannot he tested by reference to either one of these paragraphs without regard to the other. If, considered together, their allegations are sufficient, all the demurrers should have been overruled.
In Coghill v. Kennedy, 119 Ala. 641 , 24 South. 459 , it was said, per Brickell, C. J.: “Nor are the pleas objectional 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 making 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 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.”
In Letohatchie Church v. Bullock, 133 Ala. 548, 552 , 32 South. 58 , 59, this same ruling was applied to the impeachment of a deed for undue influence, and it was said, per McClellan, C. J.: “We have never understood it to be necessary to allege with particularity the quo modo the result complained of was accomplished, but only that it was accomplished by undue influence exerted by named persons. * * * Hence it is that *263 the averment should he rather of the result than of the particular and special acts and modes of causation.” To the same effect are McLeod v. McLeod, 137 Ala. 267 , 34 South. 228 , and Phillips v. Bradford, 147 Ala. 352 , 41 South. 657 .
In Barksdale v. Davis, 114 Ala. 623 , 22 South. 17 , the distinction between fraud proper and undue influence, as to the requirements in pleading them, seems to have been overlooked, and it was held that a bill contesting a will on these grounds “should set forth the facts constituting the fraud or undue influence
In Moore v. Heineke, 119 Ala. 627, 635 , 24 South. 374 , 377, there was contest of a will in the probate court, on one ground, among others, that the execution of the will was induced by a named person, “by and through fraud and undue influence.” It is obvious that a demurrer to this ground for insufficiency in the averment of fraud was Avell founded, and the ruling might well have been thus explained. However, the opinion cites the ruling in the Barksdale Gase in support of the ruling sustaining the demurrer.
In so far as the cases of Barksdale v. Davis and Moore v. Heineke, supra, require any detailed statement of the facts relied on to show undue influence, they are in plain conflict with the settled rule of our other cases, and to that extent and on that point they must be overruled.
The allegations of the bill in the present case go farther even than the rule requires, and respondents’ demurrers should have been overruled. The decree of the chancellor avüI be reversed, and a decree here entered accordingly.
Reversed, rendered, and remanded.
All the Justices concur, except Dowdell, C. J., not sitting.
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