The Montgomery advertiser., 1905-07-16
dent advice of some disinterested third

dent advice of some disinterested third party.
 2. Undue influsace as relating to tsstamentary transactions.- trans actions testamentary in character. the
 mere existence of confidential rela-
 beneficiary under the will are not in
 and of themselves alone sufficient to raise presumption of undue influence
 In tne making of the will, that would avoid It in the absence of rebutting
 evidence; but undue influence such as will avoid a will must amount to fraud or coercion SO as to show that the
 will as executed was not as matter of fact the will of the testator
 Affirmed. Opinion by Dowdell, J.
 IBARNEWELL EFT AL vs. STEPHENS. Action for Unlawful Detainer-Appeal from the Circuit Court of Mobile. l. Unlawful detainer; possession by tenant.-Where a tenant, who Is in possession. attorns to one who claims the ownership of the property, the person to whom he has so attorned. detainer against such tenant for his holding over after the tesmination of the term of his lease.
 2. Same; tenant at will; necessity for terminating tenancy.--Where one Is in possession of land as a tenant at will of the owner, before the own CT can maintain an action for unlaw- full detainer, he must give notice to the tenant of his desire and intention to terminate the tenancy, and then
 must make. after such notice. a writ ten demand for the delivery of the possession of the land; and in such an action where there Is no proof show ing a termination of the defendants 8 possessory interest. he is entitled to the general affirmative charge. 3. Unlawful detainer; sufficiency of
 written demand for possession attor- ney of landlord.-While the statute gives the agent or attorney of a land- lord. the authority to make a written demand upon the tenant for delivery of possession, before such a landlord can maintain an action for unlawful detafner. 1t must be shown by the evi- dence that the attorney who makes the demand was in fact, at the time 1t was made, the attorney of the land lord; and the subsequent bringing of the suit by an attorney does not cre-
 ate the presumption that he was the
 landlords attorney at the time the written demand was made.
 {. Evidence; when motion to ex- clude all the evidence properly over- ruled.-A motion to exclude the whole of a witnessess testimony, is prop erly overruled, if any part of such | testimony is revelant and admissible. 5. Unlawful detainer; admissibility | in evidence of deed.-In an action of unlawful detainer, a deed to the plain tin is admissible to show the extent of his possession to the premises in ] controversy, and the fact that such deed does not convey all of the land claimed in the complaint. is no ground | for its exclusion.
 6. Evidence; motives or wishes of witness inadmissible.-The testimony of a witness as to his uncommunica-
 ted motives. wishes or mental inter- | ests, is inadmissible.
 I. Unlawful detain~r; statute of | limitation.-1n an action of unlawful detainer, where it is shown that the defendants attorned to the plaintiffs
 within three years prior to the bring
 ing of the suit, the statute of limi-
 tation of three years is not available | to the defendant.
 l Reversed and remanded.
 Opinion by Anderson, J.