163 So. 335 | Ala. | 1935
Lead Opinion
The case is that of contest of a will where there was a jury and verdict rendered in the trial of an issue out of chancery after probate.
See reports on former appeals: Cox v. Hale et al.,
The jury found the issue in favor of the complainant.
On the first appeal, seeming or apparent conflict between items 2 and 4 of the will called for construction, were reconciled, and it was held the general devise to the wife and children did not defeat the specific devise to complainant, the daughter of a former marriage. Cox v. Hale et al.,
The question of undue influence — coercion or fraud — as affecting wills, was likewise considered, and the leading authorities collected (Cox v. Hale et al.,
After reversal on the last appeal (Hale et al. v. Cox,
It is urged that such a failure on the part of complainant prevented her successful maintenance of this suit in equity for annulment of said will; and that such a bar to her procedure here by way of estoppel and the kindred equitable rule.
Complainant did not elect to test the sufficiency of such a plea or defense, took issue on the fact, and proceeded to trial under the statute.
The evidence convinces us that the testator had theretofore given the house in question to the daughter; that she so occupied and held the possession and he (the testator) was merely conferring the title by the second paragraph of the will. And requested affirmative instruction refused to defendants was without error under the adverse tendencies of the evidence.
There was no error in allowing the witness Meeks to answer the question propounded to her as a nonexpert, as she had theretofore shown the required intimate acquaintance with the testator which qualified that witness to answer whether or not he was of sound or unsound mind at the time in question. Houston v. Grigsby,
The witness Jordan was not called upon and did not usurp the province of the jury as to the issues being tried in giving the facts as to testator's physical and mental' condition. Councill v. Mayhew,
The witness Cardon having died, his former testimony was offered in evidence. He had qualified as an expert with personal knowledge of the facts which he gave in evidence and on which he expressed an opinion, and the right of cross-examination was exercised. The witness stated that he knew the personal relation existing between complainant and her father; that he "never knew of any estrangement between her and her father; * * * knew of no ill-will * * * nor of any disposition to cut her out of his estate"; that "he was foolish about her and that he so expressed himself." To this evidence there was no objection. Gilbert v. Gilbert,
In this action of the court there was no reversible error. The matter given was not too remote. Coghill v. Kennedy,
To like effect was the overruling of objection to the question propounded to Mr. LeCroy, the justice of the peace who took acknowledgments to documents by the testator and his wife.
Complainant's evidence (on cross-examination) was that the father gave her a deed to the house when she married, several years before the execution of the will, and that she had been placed in possession thereof, so held and claimed to and at the time of the trial. There was no reversible error in declining the question: "You didn't offer this house and lot that was given you in the will back to the administratrix, or the executrix, rather Mrs. Hale, and offer to pay the rent you had received back before you brought this suit, did you? The complainant objected to this question; the Court sustained the objection, and the respondents then and there duly excepted." The question assumed the house was given to her under the will. Witness had stated the facts, and her failure to offer this house to Mrs. Hale was beside the issue of the contest being tried. This gift was not made and consummated under the will; but several years before, as the evidence clearly shows. Harris v. Kyle,
The witness Thornton, having testified for respondents and stated the physical and mental condition of the testator, and that he was going to make certain provision for contestant (his daughter by his second wife), it was proper on cross-examination to call for statements made by that witness as to what testator said to witness at the time and place indicated; as to his declared personal relations between complainant, testator, and respondent wife and stepmother. This was a proper office of cross-examination for the purpose of showing interest or for a predicate for impeachment. Whitsett et al. v. Belue et al.,
That witness having answered in the negative, there was no error in allowing the witness Batson to detail the contradictory or impeaching statements in respect to the predicate indicated above. Hanye v. State,
Moreover, under the issue of undue influence on the part of Mrs. Hale in procuring execution of the will, the conduct and feeling of Mrs. Hale toward contestant, and the domination and control of testator were circumstances for the consideration of the jury. Cox v. Hale et al.,
The oral charge of the court followed the announcements of this court on former appeals, which clearly stated the rule applicable to the facts under the issues submitted. Cox v. Hale et al.,
When refused charges touching the rule of testamentary capacity are considered with the oral charge and given charges 7, 8, 9, and D, no reversible error intervened by the refusal of charge 4.
The rules of testamentary capacity (Chandler v. Chandler et al.,
Refused charge 14 dealt with the burden of proof under the issues of fact presented by the pleadings. This was done by given instructions — as charges 11, 16, 19, and 37.
Refused charges 17, C, and E are covered by given instructions as to undue influence that vitiates a will procured thereby — as charge 1 and the oral charge. Ritchey v. Jones et al.,
The instructions refused by requested charges 38 and 41 were covered by the oral charge as follows: "A man has the right, gentlemen, under the law, to dispose of his property as he thinks best and as he thinks right. Although certain parties may have been left out of the will entirely, that is a matter entirely for the man himself to do with his own as he sees proper; that is the object and purpose gentlemen of making a will."
Charge No. 38, refused to respondents, correctly stated the presumption that obtains from the mere unequal distribution of the testator's property among next of kin, without other evidence as affecting mental incapacity and undue influence. Coleman v. Robertson's Executors,
So, also, is refused charge No. 41 covered by given charge 20 and the oral charge.
Refused charges A and B are also covered by given charges — the oral charge and given charge 20.
Refused charges C and E are covered by given charges 1, 2, 15, and 23.
There was no error in refusing several affirmative instructions requested by the respondents-appellants. Under any theory of the contest a jury question was presented. McMillan v. Aiken,
We have indicated that there was no election by the contestant to take under the will to be precluded thereby; that the contest was a clear renunciation of any right she had under the will. Such an estoppel does not arise by the mere fact of possession in the absence of benefits received with knowledge of the effect thereof. 68 C. J. pp. 933, 934, 935; 69 C. J. p. 967, § 2158; p. 968, § 2159.
The case has been tried three times, and the law declared under the evidence. It is due to be affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and BROWN, JJ., concur.
Addendum
Application overruled.
ANDERSON, C. J., and BOULDIN and BROWN, JJ., concur. *27