Johnston v. Johnston

Jan 11, 1912

Versions:57 So. 450

1912 Ala. LEXIS 18

174 Ala. 220

McCLELLAN, J.

Cоntest of the instrument, propounded for probate as the last will and testament of Morgan P. Johnston, deceased.

The issues formed were, in substance, two: Want of mental capacity to make a will, and undue influence exerted upon the decedent in the executiоn thereof.

*224Following a general finding that the paper propounded was invalid, the verdict expressed the jury’s particular finding that decedent was mentally incompetent to make a will on December 1, 1905.

Since one mentally incompetent to make a will cannot be the subject of fraud or undue influence in the execution thereof (Burney v. Torrey, 100 Ala. 157, 168, 14 South. 685, 46 Am. St. Rep. 33), that phase of the trial touching the issue of undue influence, by whomsоever exerted (if so), is eliminated from consideration on this appeal. Errors, if any, intervening in respect of that issue were without injury to аppellant. We therefore confine the review to errors assigned as upon the rulings and action of the court in referencе to the issue of mental capacity vel non to execute a will on December 1, 1905. Without attempting to restate the very voluminous evidence bearing upon the issue of mental capacity vel non, it will suffice to affirm, after careful consideration, that the decision upon this issue was for the jury.

The contestants propounded to each of a large number of nonexpert witnesses, who had shown an acquaintance with decedent covering many years, in substance, this question: Whether, from this acquaintance with and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍knowledge of deсedent, he was mentally capable of making a will on December 1, 1905, and whether, from this acquaintance and knowledge of decedent, he was capable of transacting business on or about that date.

With the exception of a general objection, taking the point that the testimony sought was “illegal,” addressed to the questions stated when propounded to the last few witnesses examined'by contеstants, the only objections made (otherwise) expressed the criticism, in substance, that the witnesses had not qualified to; give *225an expert opinion as thеreby called for. Each of the witnesses replied in the negative.

Objections to proffered evidence are of two general classes, viz., those directed to the means of conveying evidence to the trier of fact, and those addressed to the evidence itsеlf. Aside from the statement that the “question,” or the testimony sought to be elicited thereby, was “illegal,” the objections taken to the indicated matter related alone to the competency of the means whereby the proffered testimony ivas undertaken to be availed of. The criticism that testimony is “illegal” is a mere general objection. — Coghill v. Kennedy, 119 Ala. 641, 662, 24 South. 459; Steiner v. Tranum, 98 Ala. 319, 13 South. 365. And the rule with us is that, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍unless the testimony sought is patently inadmissible, the court will not be put in error for overruling a general objection. — Richards v. Bestor, 90 Ala. 352, 8 South. 30; Espalla v. Richard, 94 Ala. 159, 162, 10 South. 137. The objection that a question is illegal, or that it seeks to elicit illegal testimony, does not raise the point that thе question calls for a conclusion of the witness. — Steiner v. Tranum, supra; Torrey v. Burney, 113 Ala. 496, 505, 21 South. 348. The testimony the questions sought was not patently inadmissible. It was relevant to the issue of mental capacity vel non to execute the instrument propounded for probate. It was the crux of the issue the jury, in that particular, was to determine. The vicе of the. questions was that they' called for the legal conclusion of the witness, an infirmity not pointed out by the general objection of illegality.' — Steiner v. Tranum, supra.

Whether a nonexpert witness is qualified to testify to the want of mental capacity of the subject of the inquiry is a question for the court. — Parrish v. State, 139 Ala. 16, 42, 36 South. 1012. It was said on Parrish’s *226appeal that the ruling оf the trial court on this preliminary matter Avould not “be revised, unless it clearly appears to have been erroneous.” The qualificаtions of the witnesses who affirmed that decedent was mentally incompetent were ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ascertained by the court. We cannot say thеre was error in this conclusion as to any one of the witnesses avIlo so testified. There Avas support for such a finding in the testimony before the court, and so within the doctrine of Burney v. Torrey, 100 Ala. 157, 14 South. 685, 46 Am. St. Rep. 33. Being hence qualified to express their opinions that decedent’s mind was unsound, the further questions, befоre in substance stated, involved but the legal conclusion of the witness upon the premise his testimony had laid; and, if unobjected to on that grоund, the court cannot be held to have erred. — Steiner v. Tranum, supra. There was, in consequence, no merit in the objections addressed to the competency of the witnesses to express an opinion upon the mental status of the decedent in either of the respects to which the quеstions refer.

We find no prejudicial error in the rulings of the court admitting or rejecting evidence bearing upon the issue of mental caрacity vel non. That issue must, of necessity, evoke. an inquiry of the broadest range — Howard v. State, 172 Ala. 402, 55 South. 255, 34 L. R. A. (N. S.) 990. So, too, under the rules prevailing here with respect to the right of a properly qualified non-expert to give his opinion that the subject of the inquiry was of unsound mind, it is essential that his opportunity for the formation of such an opinion be fully discovered by examination; and that its correctness be tested by an ample inquiry upon cross-еxamination. The relative strength or previous soundness of the mind of one whose mental status is being investigated at different times is a subject of inquiry, аnd also of opinion, of a *227witness who possesses the requisite qualification to form, entertain, and express an opinion in the premises. — Watson v. Anderson, 11 Ala. 43. The matter found in the bill, having reference to an indebtedness, or to payments, by decedent to children of his former marriage, rendered entirely proper ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that testimony tending to show the source of that liability to have been the estate of the former wife and of the mother of the children mentioned.

The presumption, as is familiar, is that every person is sane. A contestant has the burden to overcome this presumption. If he shoAvs that the subject of the inquiry Avas habitually insane before the paper was attempted to be executed, the burdеn then shifts to the proponent to shoAV that the avüI Avas made during a lucid interval. — Murphree v. Senn, 107 Ala. 424, 18 South. 264; Johnson v. Armstrong, 97 Ala. 731, 12 South. 72; O’Donnell v. Rodiger, 76 Ala. 222, 52 Am. Rep. 322. If habitual, fixed insanity, prior to the act in question, is not shoAvn by the contestant, the burden does not pass to the proponent. Charge A would have correctly invoked this rule but for the employment therein of the Avords “or otherwise.” That phrase might, and doubtless did, have reference to a condition of mind not equivalent to habitual, fixed insanity. It was hence Avell refused.

Charge C, in one alternative, exacted, as a condition to the shifting of the burden of proof, according to the doctrine just, stated, that the contesants show tо the jury’s satisfaction that Johnston Avas, prior to the execution of the paper propounded, under the disability of habitual, fixed insanity. The degree оf proof required by the instruction Avas too great. Reasonable satisfaction is the degree the laAV requires.- — Moore v. Heineke, 119 Ala. 62, 24 South. 374; Coghill v. Kennedy, 119 Ala. *228641, 666, 667, 24 South. 459. This charge was correctly refused.

According to the doctrine of Murphree v. Senn, Johnson v. Armstrong, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and O’Donnell v. Rodiger, supra, the court erred in refusing charge E (assignment 50).

For the error just stated, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

All the Justices concur, save Dowdell, C. J., not sitting.