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tion is made this cause need not be carried on the docket." From this decree no appeal was ever prosecuted. The facts further show that under this last decree an execution was issued and levied upon all of the real estate then owned by the defendant, and that the same was sold under said levy, and the proceeds of the sale applied in payment of the $270 accrued alimony. The present petition does not aver any change in the financial condition of the defendant since the rendition of the decree of September 23, 1896, or that he is able to further pay alimony. The answer of the defendant to the petition shows a continuation of his poverty-stricken condition, and further avers his utter inability to pay the monthly installments of alimony which have accrued, or which may hereafter accrue. The proof taken on this issue shows that the defendant is an old man, 72 years of age, and in feeble physical condition, and de- | pendent for a living upon his profession,being that of a physician,-and that by reason of his age and enfeebled condition his earnings in his profession are barely sufficient to afford him a subsistence. His personal property consisted in one horse, of the value of $60, two cows and yearlings, of the value of $35, a small lot of drugs used in his practice, of the value of $30, old books, $15, and surgical instruments of the value of $15. He owned no real estate. On these facts, and under the former decrees, the chancellor dismissed the petition. If the court had the right and power under its former decrees in the cause to control the enforcement and execution of said decrees, then there can be no question, under the facts, of the rightfulness of the decree here appealed from. It is quite clear that under the provisions of the former decree the right to control the enforcement and collection of the same was reserved to the court, and in cases of this character we think the propriety of such reservation by a court of equity is highly proper, as such court has not only the power, but should always in its exercise so mold its decrees that justice be meted out without oppression, especially in provisions for payments of money in the future, where the ability to make such payments is dependent upon future contingencies. What was said by this court in Edwards v. Edwards, 84 Ala. 362, 3 South. 896, and Williams v. Hale, 71 Ala. 83, is in line with the principle above stated.

Our conclusion is that the chancellor was right in dismissing the petition, and his decree will be here affirmed.

JOHNSON v. BLAIR et al. Supreme Court of Alabama. Nov. 28, 1901.) EQUITABLE ESTOPPEL-ADMINISTRATORS-AP

POINTMENT.

1. Where a creditor of an estate intimated that if the security for the debt was sufficient she would defer collection of the principal, and

was assured by the person representing the estate that if she concluded not to allow the debt to run on he would pay on notice of the fact from her, and asked her to give him such notice, so that he could pay it without incurring costs of suit, attorney's fees, etc., which she promised him she would do, and he relied on this promise, and did not pay the debt, she was estopped from claiming attorney's fees on a demand by her attorney for the payment of the loan and fees almost a year afterwards.

2. The person representing the estate, being the husband of the only heir and distributee, it was immaterial, as effecting the estoppel of the creditor to assert her right to the fees, that such person was not yet appointed administrator at the time of the interview.

Appeal from chancery court, Colbert county; William H. Simpson, Chancellor.

Bill by Kate M. Johnson against H. W. Blair, administrator. From a judgment for defendant, plaintiff appeals. Affirmed.

Kirk & Rather, for appellant. Wilhoyte & Nathan, for appellees.

MCCLELLAN, C. J. It is of no consequence that H. W. Blair had not qualified as administrator of the estate of R. L. Ross at the time, a few days after Ross' death, of his first interview with Mrs. Johnson. He was the husband of the only heir and distributee of the estate, he was properly looking after its affairs, and he was recognized by Mrs. Johnson as representing the estate. The evidence satisfactorily shows that the debt owed by Ross to Mrs. Johnson, while maturing July 18, 1894, had been allowed to run along for five years after that, Ross paying the interest promptly year by year; and by this and otherwise it is made to appear that Mrs. Johnson had not up to the time of Ross' death desired the payment of the principal. She had money to lend, and it was the interest she wanted, and apparently not the principal, so long as the security was good. When Blair went to see her, he had every reason to believe that she was in no haste to collect the principal. She said as much to him, and, further, that, if the security was sufficient, she would comply with his request that the payment of the principal be still further deferred. She thought the security was adequate, but preferred to have the advice of her attorney upon that, and suggested that Blair see the attorney. At this interview between Mrs. Johnson and Blair she was given to understand that, if she did want the debt then paid, Blair was ready and able, and would then pay it. It was not then determined whether she would let the debt ra on as she had done before or not. Blair, however, sought to provide for the contingency of her concluding not to do so by assuring her if she did so conclude that he would pay upon notice of the fact from her, asked her to give him such notice, so as that he could pay it without incurring any costs of suits, attorney's fees, and the like, and she thereupon assured and promised him that she would not put him to any such expense without first notifying him,

so as to afford him the opportunity-the clear intendment is-to repay the loan without incurring any expense about it. He relied upon this promise and assurance. Because of it he did not pay the debt, supposing, as he on all the evidence had a right to suppose, that the loan was to continue as he had requested it should. He knew no better until nearly a year afterwards, when her attorney called on him to pay the loan and the attorney's fee. He then promptly tendered the loan, principal and interest. The tender was declined, because it did not include the attorney's fee. On this state of case we concur with the chancellor in holding that it would be contrary to equity and good conscience to allow Mrs. Johnson to recover the attorney's fee. Her conduct, her assurances and promises to afford him the opportunity to discharge the whole obligation by paying the principal and interest of the loan, taken in connection with his reliance thereon, and his being thereby induced to forego the payment of the principal and interest when he had the clear legal right to pay it without incurring any liability for an attorney's fee, estops her now to claim such fee. She cannot, in a court of conscience and equity, thus induce him to forego the position of vantage in respect of the fee which he occupied, and then avail herself of it to put upon him a burden which she had undertaken should not fall upon him until after he had had the opportunities incident to his original position, and had failed to employ them to relieve himself from such burden.

Let the decree of the chancery court be affirmed.

PATTON v. WATKINS.

(Supreme Court of Alabama. Nov. 20, 1901.) ELECTIONS-LEGALITY OF VOTES-STATUTES— REQUISITES-NONCOMPLIANCE WITH PROVISIONS ILLITERATE VOTER-MARKING BAL

LOT-VALIDITY.

1. Inasmuch as the statute relative to elections, requiring, among other things, that the sheriff shall furnish booths for the preparation of ballots, does not provide that failure to comply with the provison shall render votes cast at the election illegal, a noncompliance has no such effect.

2. The statute relative to elections, requiring that the polls shall be kept open during certain hours, not expressly providing that a failure to comply with such provision shall render votes cast at the election illegal, failure to keep the polls open during the hours specified has no such effect.

3. Since the statute relative to elections, which directs that a voter shall occupy a booth alone while preparing his ballot, does not provide that noncompliance shall cause illegality of votes prepared otherwise than as directed, a noncompliance with the provision does not have such effect.

4. Code, § 1623, requiring that an illiterate voter shall make an affidavit of his illiteracy on applying for the assistance of an official marker in the preparation of his ballot, does not render votes illegal where they are prepar ed for an illiterate voter without such affidavit.

5. Code, § 1623, relative to elections, provides that a disabled or illiterate elector may have in the preparation of his ballot the assistance of an official marker, who shall retire to a compartment with an elector, and there mark the ballot by a cross before the names of each candidate, to be given him by the elector without suggestion or interference from the marker. Held that, the statute having prohibited all discretion in the selection of a candidate on the part of the marker, a ballot marked by a marker without direction or suggestion from the voter was void.

Appeal from probate court, Jefferson county; J. P. Stiles, Judge.

Proceedings by J. P. Watkins, contesting the election of W. S. Patton to the office of constable. From a judgment of the probate court in favor of contestee, contestant appeals. Reversed.

F. E. Blackburn and C. P. Beddow, for appellant. Walker Percy, for appellee.

SHARPE, J. At an election held to fill the office of constable contestant and contestee were opposing candidates. There were two polling places in the precinct. At one of them contestant received a majority of the votes. At the other the contestee received a larger majority, and was accordingly declared elected. This result was contested in the probate court, and was sustained by the judgment of the probate judge, sitting without a jury. The evidence from which error in the judgment is sought to be shown relates only to the last-mentioned polling place. It shows that at that place no booths were provided for the occupation of voters while preparing their ballots, that ballots were prepared in a room adjoining that occupied by the inspectors, and that many voters had their ballots marked by W. T. Skinner, an official marker, without making oath to their own inability to do so, as prescribed by section 1623 of the Code. It also shows that, instead of keeping the polls open continuously from the hour of opening to the legal hour of closing, the inspectors left the polling place and remained away from it for about an hour and ten minutes while at dinner, and that, though they carried the ballot box with them when going to dinner, it was out of their sight. On the trial there was evidence, but with which Skinner's testimony was in conflict, tending to show that he acted in marking ballots cast by illiterate voters without any expression from those voters indicating for whom they desired to vote.

The statutes providing for contests for election disclose a policy adverse to disturbing results declared by election officers, wherever they are supported by true estimates of the legal votes cast. No malconduct, whether of officers or of persons, will furnish cause for setting aside an election, "unless thereby the person declared elected, and whose election is being contested, be shown not to have received the highest number of legal votes. nor must any election contested under the

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provisions of this Code be annulled or set aside because of illegal votes given to the person whose election is contested, unless it appears that the number of illegal votes given to such person, if taken from him, would reduce the number of votes given to him below the number of legal votes given to some other person for the same office." Code, § 1668. In the trial of contests no provision is made for investing with the office any person other than the one whose election is declared, unless such other person “received, or would have received, had the ballots intended for him, and illegally rejected, been received, the highest number of legal votes." Id. § 1700. A vote cast by a legally qualified elector at an election held by the proper officers at a time and place designated by law is not made illegal by a failure to observe a mere direction given by statutes as to the mode of conducting the election. general, statutory provisions relating to procedure in elections are directory merely, unless their disregard be made expressly vitiative. Paine, Elect. § 497; McCrary, Elect. 8 200. No such consequence of nonobservance is expressed in the statutes, which require that the sheriff shall furnish booths, and that the polls be kept open without intermission during the legal hours for voting, or in that which directs that the voter shall occupy a booth alone while preparing his ballot, or in that which requires him to make an affidavit on applying for assistance of an official marker in such preparation. Dereliction in respect of official duty pertaining to election may be of such kind as to render the culpable officer amenable to penal laws, without affecting the validity of votes cast under his ministration; and this principle applies to the irregularities imputed to official misconduct of the sheriff and of the managers at this election.

To be entitled as a matter of right to assistance in preparing his ballot, the voter must make affidavit of his own inability to prepare it. But it is the fact of disability, rather than the sworn declaration, that merits the assistance for which the law provides. The oath is required only as evidence of the fact. If an official marker, being assured that an elector is, by reason of illiteracy or otherwise, unable to mark his ballot so as to vote according to his choice, assists him to do so, the fact that the oath is not taken or required, though constituting an irregularity, does not make the vote illegal. But the sole function of a marker is to perform the mechanical act of preparing the ballot. His duties are defined by the statute (Code, § 1623), which provides that a disabled or illiterate elector "may have the assistance of a marker, to be selected by him from the number of markers appointed by the inspectors, or, in the event no markers are available, of an inspector, to be selected by him, in the preparation of his ballot, and the marker or inspector so selected shall retire

to a booth or compartment with the elector and there mark the elector's ballot, by marking with pen and ink or pencil or stencil cross-marks (X) before the names of each candidate for each office, to be given to him by the elector without suggestion or interference from the marker or inspector. The marker or inspector assisting the elector shall then deliver the ballot to the elector and withdraw from the booth or compartment." From this it is seen that the exercise of all discretion in the selection of candidates for the voter assisted is prohibited to the marker, and that the substitution of his own for the voter's choice in such selection is a flagrant violation of an official trust. Such malconduct amounts, furthermore, to a fraud which vitiates the ballot so prepared and deprives it of the quality of legality. There is testimony which, if believed, warrants the conclusion that more than 90 ballots cast and counted for the contestee were prepared by Skinner, and that in marking them he acted without advice or instructions of the electors by whom they were cast. A majority of the court are of the opinion that this fact is established by evidence which clearly outweighs the testimony contradicting it, and overcomes such presumption of correctness as the trial court's judgment is entitled to. It follows that these marked ballots are void, and cannot be taken as representing votes. By rejecting them it is made to appear that contestant received the highest number of legal votes. Accordingly the judgment appealed from will be reversed, and one will be here rendered declaring the contestant duly elected to the office in question. Code, § 1700.

Reversed and rendered.

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1. In transactions inter vivos, where one party stands in confidential relations to auother, if the dominant party receives benefits during the existence of such relation, a presumption of law arises that the benefits were the result of undue influence.

2. In testamentary dispositions of property the rule as to the legal presumption of undue influence is the same as in dispositions inter vivos, except that the person standing in confidential relations to the testator and receiving benefit under the will must be shown to have in some way actively participated in the preparation of the will or the disposition of the property.

3. When the legal presumption of undue influence has arisen by reason of confidential relations, whether in dispositions of property inter vivos or by will, the burden of proof is upon the party seeking to take the benefit of such dispositions to rebut the presumption attaching thereto by showing a severance of the confidential relations, and that the party making the disposition had competent and independent advice in regard thereto.

4. On trial of a will contest it appeared that relations between the proponent and testatrix were those of rector and parishioner and priest and penitent; that proponent was a constant visitor at the house of testatrix, both before and during her last sickness; that she reposed great confidence in him; that he actively participated, by suggestions made to her, in the preparation of her will; and that he was a large beneficiary thereunder. Held, that the facts raised a disputable legal presumption that the will was the result of undue influence.

5. The testimony of the sister of the testatrix to the effect that she had carefully read the will over line by line and section by section to and with the testatrix, and that the testatrix assented and agreed to all of its terms, subsequently getting witness to get the persons who attested the will as witnesses to come to testatrix's room and attest her signature, was insufficient to rebut the presumption of undue influence attaching to the will.

Appeal from probate court, Montgomery county; J. B. Gaston, Judge.

Application by Stewart McQueen for probate of a will contested by Mary R. Wilson and others. From a judgment in favor of contestants, applicant appeals. Affirmed.

Gordon Macdonald and Jno. D. McNeel, for appellant. Gunter & Gunter, for appellees.

DOWDELL, J. The present appeal is prosecuted from the probate court of Montgomery county upon a trial in the contest of a will. The appellant, Stewart McQueen, the proponent in the court below, was named in the alleged will as the sole executor. The contest was filed by the guardian ad litem of the minor heirs of the deceased, and among the grounds of contest it was averred "that said decedent was induced to make and execute said alleged will by undue influence," and upon this ground the whole contention is based. The rule of law is well settled that in transactions inter vivos, where a party stands in confidential relations to another, such as that of parent and child, guardian and ward, attorney and client, priest and penitent, etc., if the dominant party receives the benefit or donation during the existence of such relation, the party reposing the confidence, on seasonable application to a court of equity, may obtain relief from the burdens and duties imposed simply by showing the transaction and the confidential relation; the presumption of the law being that as long as the relation lasts the transaction is the result of undue influence, and to make the transaction good in law there must be a severance of such relation, at least for the time being, and the party reposing the confidence must have competent and independent advice. In such cases the burden of proof rests upon the party claiming the benefit under the transaction to repel the presumption thus created by the law by showing a severance of the relation, and this must be done by the interposition of competent and independent advice. And it is no answer to say that the party making the donation knew the effect of it, or that he approved the transaction, if the confidential relation be not sev

ered by independent advice by some disinterested, competent person. These principles are based upon public policy, and the law would not even notice the mere denials of persons that undue influence was exerted; nor will it stop to consider the motives or promptings, whether good or bad, moral or immoral, which induced the exercise of such undue influence, for the reason that, where such conditions obtain, the will, properly speaking, is not the will of the person so influenced. These principles are well sustained by the following authorities: Noble's Adm'r v. Moses, 81 Ala. 540, 1 South. 217, 60 Am. Rep. 175; Johnson v. Johnson, 5 Ala. 90; Huguenin v. Baseley, 2 White & T. Lead. Cas. Eq. pt. 2, p. 1165; Rhodes v. Bate, 1 Ch. App. 252; Savery v. King, 5 H. L. Cas. 627; Morgan v. Minett, 6 Ch. Div. 638. There is, however, a difference in the law of presumed undue influence in testamentary dispositions of property from that in transactions inter vivos. In regard to wills, confidential relations alone between the testator and the beneficiary under the will is not enough to raise up in law a presumption of undue influence. Testamentary dispositions of property are most commonly prompted by love and affection, and, where these sentiments obtain, confidential relations most usually exist. But when, in addition to confidential relations, it is shown that the person who is a large beneficiary under the will actively participated in its preparation by making suggestions as to the disposition of the property, the presumption of undue influence arises, and the same doctrine as to burden of proof and of rebutting the presumption by showing a severance of the relation by independent and competent advice obtains as in transactions inter vivos when confidential relations are shown. This question was thoroughly considered and discussed in the case of Bancroft v. Otis, 91 Ala. 279, 8 South. 286, 24 Am. St. Rep. 904, where the authorities are collated and cited. The case at bar comes directly within the influence of the principles declared in that case. Here, on the undisputed evidence, it is shown that the proponent actively participated, by suggestions made to the testatrix, in the preparation of the alleged will. It is also shown that he is a large beneficiary under the will, and the confidential relations were those of rector and parishioner, priest and penitent, coupled with the facts that he was a constant visitor at the home of testatrix prior to and during her sickness which terminated in her death, and that she reposed great confidence in him. These facts, when taken by themselves, under the above authorities, are conclusive upon the proposition of the invalidity of the alleged will.

It remains only to be determined whether the presumption of. undue influence which the law has raised up under the above statement of facts has been sufficiently met and repelled by any evidence in the case showing

a severance of the confidential relations existing at the time of the making of the will. The only evidence in this respect is to be found in the testimony of Miss Clatonia Wilson, the sister of the deceased, and is as follows: "That she [witness] carefully read the same [the will] over, line by line, section by section, to and with the deceased, and that she [deceased] assented and agreed to all of its terms, subsequently getting witness to get the persons who attested the same as witnesses to come to deceased's room, and attest her signature to such paper as her will." There is nothing in this evidence showing that any advice was given or offered by the witness to her sister; nothing more than that they two carefully read the paper over together; and, in the next place, it is not shown that this witness was a competent person to give advice. This falls far short of the requirement of the law in discharging the burden of proof cast on the proponent to repel the presumption of undue influence which the law raises up on the other facts shown. This testimony shows no more than that the deceased was informed of the contents of the paper, but knowledge of the contents, and that she assented and agreed to the same, is insufficient to repel the imputation that she was acting under the dominant spirit and controlling influence of the proponent, who was her priest and spiritual adviser. Morgan v. Minett, supra; Delafield v. Parrish, 25 N. Y. 9; Tyler v. Gardiner, 35 N. Y. 559.

On the undisputed evidence, our conclusion is that the trial court committed no error in rejecting the paper as the last will and testament of the deceased, and the judgment of the court is affirmed.

PENNY V. BRITISH & AMERICAN MORTG. CO. (Supreme Court of Alabama. Dec. 20, 1901.) HUSBAND AND WIFE-JOINING IN CONVEYANCES- - ACKNOWLEDGMENT BY WIFE JUDG

MENT-CONCLUSIVENESS-JURISDICTION.

mon.

1. A husband and wife were tenants in comA mortgage purported to be between the husband, "as party of the first part," and the mortgagee. The grantor was referred to in the granting and defeasance clauses and in the testimonium in the singular number, the only reference to the wife being the clause, "And A. E. L., wife of said G. W. L., of the first part, hereby expressly releases and conveys all rights of dower or homestead in and to said premises." The mortgage was signed by both. Held, that the mortgage did not convey the wife's moiety, but was only operative as to her to release her inchoate dower and homestead in her husband's moiety.

2. A certificate of acknowledgment of a conveyance of a homestead by a wife which fails to state that she "was known or made known to the officer to be the wife of the grantor," as required by Code, § 2034, is fatally defective, there being nothing in the certificate to show she was the wife of the grantor, or was known to the officer to be the wife, or even that she was known to be the person who executed the conveyance.

3. A grantor sued to set aside a conveyance as a cloud on his title, for that the property was his homestead, and his wife did not join in the conveyance, and also because of fraud. Held that, defendant having joined issue without objecting that the bill failed to aver that complainant was in possession, the court had jurisdiction, though the bill was without equity, since the cause of action was cognizable in equity, and hence a decree fading that the property was not complainant's homestead was res judicata.

Appeal from circuit court, Cherokee county; J. A. Bilbro, Judge.

Action by the British & American Mortgage Company against Ezekiel Penny. From a judgment for plaintiff, defendant appeals. Reversed.

Matthews & Whiteside and H. D. McCarty, for appellant. Hood & Murphree, for appellee.

MCCLELLAN, C. J. This is a statutory action in the nature of ejectment prosecuted by the mortgage company against Penny. Plaintiff deraigned title by mesne conveyances from the defendant. It claimed that Penny conveyed to G. W. Lancaster and Martha E. Lancaster, who were husband and wife, and that said Lancasters conveyed to it by mortgage, which had been foreclosed, the company becoming the purchaser at foreclosure sale and receiving a deed thereunder. The defendant attacks the first and second links in this alleged chain of title. His contention is: First, that the deed executed by him to the Lancasters was and is void be cause the land constituted his homestead, and the instrument was not executed nor attempted to be executed by his wife; and, second, that, assuming the validity of his deed to the Lancasters, and assuming further that they both joined in the mortgage to plaintiff, that mortgage was void, for that at its date the land constituted their homestead, and the instrument was not acknowledged by her as required by the statute. And he contends further that, in any event, the plaintiff acquired through its mortgage only the undivided one-half interest of G. W. Lancaster in the land, for that Martha E. Lancaster joined therein only for the purpose of releasing and conveying her rights of dower and homestead. If either the first or the second position of defendant was supported on the trial beyond controversy, the defendant was entitled to the affirmative charge which he requested and which the court refused to give; and, if the third position was well taken and the others not, plaintiff was entitled to recover only the interest of G. W. Lancaster in the land sued for. We will consider these contentions of the defendant below as they have been presented in the brief for appellant here,-in the inverse order of their statement above.

Assuming for the discussion of this and the succeeding point that Penny's deed passed a good title, it is most clear, and is not disputed, that such title vested in G. W.

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