87 So. 525 | Ala. | 1920
Lead Opinion
Appellant’s bill in this cause instituted a contest of the last will and testament of Mollie E. Elston, deceased. Appellant is an infant grandson of deceased. The instrument in dispute purported to vest decedent’s entire estate — worth about $1,000 —in her son L. R. Elston and his infant daughter, appellee Eva Elston. Its validity was contested on the grounds that testatrix was mentally incapable, and that L. R. Elston had exercised undue influence in procuring its execution. In pursuance of the verdict of a jury, to which the issues were submitted, the circuit court, sitting in equity, rendered a decree sustaining the instrument as th^ last will and testament of Mollie F. Elston, deceased. A bill of exceptions was reserved at the jury trial, and this appeal seeks to review the questions so raised.
We find no error, and the decree is affirmed.
Affirmed.
Lead Opinion
Appellant's bill in this cause instituted a contest of the last will and testament of Mollie F. Elston, deceased. Appellant is an infant grandson of deceased. The instrument in dispute purported to vest decedent's entire estate — worth about $1,000 — in her son L. R. Elston and his infant daughter, appellee Eva Elston. Its validity was contested on the grounds that testatrix was mentally incapable, and that L. R. Elston had exercised undue influence in procuring its execution. In pursuance of the verdict of a jury, to which the issues were submitted, the circuit court, sitting in equity, rendered a decree sustaining the instrument as the last will and testament of Mollie F. Elston, deceased. A bill of exceptions was reserved at the jury trial, and this appeal seeks to review the questions so raised.
L. R. Elston filed his answer to the bill in due course, and thereafter his answers to interrogatories propounded to him under the statute. Afterwards this defendant withdrew his answer and appearance, and suffered a decree pro confesso. On the trial before a jury complainant offered in evidence the docket entry showing these facts and the interrogatories and defendant L. R. Elston's answers thereto. Defendant Eva Elston's objection to this evidence was sustained, and complainant excepted. It is too clear for argument that the proposed evidence could shed no light upon the testamentary capacity of the deceased. It is almost equally clear that the fact that defendant L. R. Elston had suffered a decree pro confesso to be entered against himself should not have been admitted in evidence for the purpose of prejudicing the case of the other defendant, while, as for his answer to interrogatories taken under the statute (Code, § 4049 et seq.), the statute makes a deposition so taken admissible when offered by the party taking it, but it is not the effort or effect of the statute to make such a deposition evidence against a party other than the deponent; such other party having had no part in its taking. Elston's deposition, so taken, might, indeed, have been used to contradict him in the event he became a witness and testified contrariwise, but that possibility was eliminated from the case when Elston was examined as a witness by complainant, and testified just as he had in answer to the interrogatories which had been propounded under the statute. True, the contest instituted by the bill in this cause was in the nature of a proceeding in rem *309
(Kaplan v. Coleman,
Appellant complains that the court refused his request to instruct the jury — charge C — that under the evidence as matter of law the burden of showing that the will was executed without undue influence rested upon the defendant proponent of the will. This proposition appears to rest upon the assumption that confidential relations existed between testatrix and L. R. Elston, her son living with her — and this may be conceded as beyond dispute — and that L. R. Elston was the party of dominant influence in that relation; but this last we think was itself a question of fact to be determined by the jury, and the charge was properly refused because it proceeded on the hypothesis that as matter of law, admitting of no inference to the contrary, Elston dominated his mother in the making of her will. On the facts shown by the bill, this was a question of fact for the jury (Curry v. Leonard,
The depositions of the two witnesses to the will taken in the probate court upon the uncontested probate of the will in that court — the proceedings there being duly certified by the probate judge — were received in evidence. Appellant contends for error on the ground that the depositions were not signed by the witnesses. Speaking generally, these depositions were competent evidence in the cause (West v. Arrington,
According to the testimony, the deceased, on her own motion, prepared the original of the will in dispute, which was later copied by L. R. Elston, and incorporated in it her own ideas without suggestion from any quarter. This evidence made the question whether she knew the contents of the paper a question for jury decision. Hill v. Barge,
We find no error, and the decree is affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.
ANDERSON, C. J., and SAYRE, GARDNER, and MILLER, JJ., concur.
Rehearing
On Rehearing.
Application overruled.
