8 So. 2d 866 | Ala. | 1942
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *200 This is an appeal from a judgment of the circuit court which sustained a contest of the alleged will of one Charles R. Burgess, and denied the petition to probate it as such. The trial was had by a jury and the judgment was in accordance with the verdict of the jury.
By the terms of the will, decedent bequeathed all his property to a sister, Agnes Burgess Little, except one dollar to a brother and one dollar to another sister. The contest was filed by the sister to whom one dollar was bequeathed, and the children of another sister who was then deceased.
The issue of fact to which was directed most of the evidence was whether the will was procured by undue influence and whether the decedent had mental capacity at the time to make a valid will. The alleged mental incapacity was largely associated with the habitual drunkenness of decedent, who was approximately seventy-two years of age, had never married, but had accumulated a very substantial estate, all embraced in the terms of the alleged will.
The sister, Mrs. Little, the principal legatee, had a son named Fontaine Little, who was present when the will was executed and who, it is claimed, procured the will by undue influence. There was some evidence that he wrote the will and secured the presence of the witnesses to its execution. He was a man of experience in business affairs and had been postmaster at Sheffield. He and his family and mother and father lived in his mother's apartment over some stores in the city. He had a business office, also on the same floor, in which the alleged will was executed in the presence of the two witnesses who signed it as such, and Fontaine Little was also present. The record shows that the following occurred as to him:
Kidd, a witness to the will, testified:
"Mr. Little stood at the desk behind the door, that is the other desk I am speaking about; as I recall he spoke to me as I walked in, they were all waiting for me as I stated, as I recall Mr. Little said, 'Good morning, Uncle Charlie has something for you to sign or wanted to see you a minute' or something in that nature, as I stated before I brought my seal and I believe he said 'We don't want any papers notarized,' that is about what he said and Mr. Burgess said 'Kidd, I want you to witness my will.'
"That is all I recall: all I remember. As I recall the first I saw of the paper that I signed, Mr. Little went on to his desk back over here and as we entered he handed them to Mr. Burgess, and that is where the signing of the papers took place. Mr. Fontaine Little handed the papers to Mr. Burgess, he signed the first one and then Mr. Little handed him the other one. I don't recall that he said anything when he handed him the first paper. When he handed him the second one he said, 'We will want to keep *205 a copy' or 'Here is a copy' or words to that effect.
"You ask me if Little didn't say 'Uncle Charlie wants to divide up.' I don't remember him saying that, and I can't say to the court and the jury that I do. I would say I was possibly ten feet from Mr. Little at that time and I saw Mr. Burgess sign both of the wills. * * *
"I understood that Fontaine Little prepared these instruments, I heard he did, I didn't see him. I wasn't with him when they were prepared. Mr. Little told me he prepared them. He told me that Uncle Charlie had been after him for a day or so, and the night before he asked him especially to go ahead and draw up the paper and he told him he was busy and couldn't get to it, and that the next morning he reminded him of it and that he got busy and prepared them and called me and Bolton up to witness it.* * *
"Fontaine pulled the papers out of his pocket after the other gentlemen came in and he just said 'Uncle Charlie wants to divide up what he had' and wanted us to witness some papers for him. Fontaine said it was his will. Mr. Burgess was present and what he said in regard to the will was within the hearing of Mr. Burgess. Immediately after that we signed the paper. I will state to the jury and his Honor that I signed two papers."
Fontaine Little did not testify in the case.
" 'Why didn't Fontaine Little take the stand and explain it; he was here on the summons within the reach of the court from the beginning to the conclusion of the trial, but he hasn't until yet appeared on that witness stand before you gentlemen in this case.'
"And to the aforesaid argument by counsel for defendant, counsel for plaintiff interposed an objection on the ground that it is an improper argument, that Fontaine Little was equally available as a witness to both parties; and that Fontaine Little is not a party to this suit; that no witness or anyone else should be criticized for not taking the stand; and it is an argument on the part of counsel solely for the purpose of prejudicing the minds of this jury."
While Fontaine Little was not a party to the proceeding, and not named in the will, his mother was the sole substantial beneficiary. There was evidence that he wrote the will and called the witnesses to his office where it was executed. He and the decedent and the two witnesses were the only persons present. On account of his relation to his mother, the sole substantial beneficiary in the will, he had an interest, though indirect, but perhaps very substantial, in probating the will. If he exerted undue influence on decedent and thereby procured the execution of the will for the benefit of his mother, it was material to the issues as made. He had peculiar knowledge of whether he did so. The defendants did not occupy that same relation to him as a witness that plaintiff did. Therefore the failure of the plaintiff to call him as a witness on the matters which were particularly known to him was a subject of legitimate comment by defendants' counsel.
Moreover, the record does not show what it was that defendants' counsel had been saying which he thought should have been explained by Fontaine Little. Appellant must show that the comment of counsel was not permissible under our rules. This whole question has been recently discussed by this Court and the rule made plain. The decisions of this Court had been confusing on that subject. But this opinion settles all such confusion. Waller v. State,
The burden being on proponent as to the due execution of the instrument, and the proof being made by witnesses (as it must be), the credibility of the witnesses must be hypothesized in asking a charge on the effect of such proof. This is not done in those charges.
The correct form for the affirmative charge under such circumstances is set out in Barnett v. Freeman,
Moreover, it was on re-direct examination of the witness, after proponent had concluded his direct examination and after the cross-examination had been finished, and was as to a matter not mentioned in either. It was therefore largely in the discretion of the court not to allow some new subject to be thus introduced. Mann v. State,
The particular question mentioned in this assignment calls for an expression of opinion which we think invades the rule in that respect. A witness may testify as to the emotions manifested by another. Batson v. Batson,
The evidence was not incompetent under Code of 1940, Title 7, section 433. Alexander v. Alexander,
But so far as we can interpret the testimony of this witness as shown on pages 326 and 366 of the record, the court permitted her to give this proposed testimony in full.
We know of no principle of law which supports the exclusion of evidence that she knew his handwriting, and that the signature was in his handwriting, Stuck v. Howard,
In other parts of her testimony she seems to have answered this quite fully. (Record pages 278, 365 and 368.) Therefore no prejudice resulted.
The charge here requested seems to seek to apply the principle when the chief question is one of undue influence or mental capacity. While the charge uses the word "validity" of the will, its validity on account of ambiguity in its terms is the sort to which the principle was said in the last appeal of the Massey case to apply. But its refusal should not reverse the case even when it could be given without error. It is argumentative and has a misleading tendency. It is also noted this charge in one place uses the word "validity" where it was probably intended for "invalidity." The court must act on a charge in the language as requested. Under no theory should there be a reversal for refusing this charge. Sometimes when it is properly expressed it is error to give it, as in the last appeal of Reynolds v. Massey, supra.
Whereas in the instant case, the jury is sought to be instructed that they should consider with great caution and suspicion such testimony. It is not the province of the court thus to infringe upon the prerogative of the jury. See, Canty v. State,
For, when so, the burden is cast on proponent of disproving undue influence, since she is a "favored beneficiary" in the will. Cook v. Morton,
The question as to whether a nonexpert witness was properly qualified to give such an opinion is in the sound discretion of the trial court, and will not be reversed unless plainly erroneous. Wear v. Wear,
It appears from this feature of his examination that the court did not abuse his discretion.
When Mrs. Caradine was testifying as a witness for proponent, she stated that on September 4, 1936, she was a secretary in the Wallace hospital and was doing such work for Dr. Schmid on that day, and on being shown a record from the files of the hospital dated September 4, 1936, she stated that she wrote it on the typewriter from shorthand notes dictated by Dr. Schmid. (Record pages 290-291.) It is strikingly like that produced by Dr. Schmid, but not the same document. At the place where his document had the words "with psychosis," the one she had contained the words "without psychosis." The court sustained the objection to this record offered by proponent.
Appellees insist that the paper introduced in evidence was only a copy of the original, and that was one ground of the objection. The evidence is not clear as to this. The instrument is not before this Court, and the trial court may have concluded that it was only a copy. We will assume for argument that it was the original.
There was certainly no statute prior to the Code of 1940, which makes records of hospitals admissible, nor which requires them to be kept except as to births and deaths. See, section 7674, Code of 1923, Code 1940, Tit. 7, § 386. This trial was not controlled by the Code of 1940, Title 7, section 415, since it was prior to the effective date of that Code. We need not here inquire whether that statute applies to hospital records.
The subject has had consideration in many cases with different results and with different reasons given for the result. The majority view is thus expressed in 26 Amer.Jur. 590, § 6: "In the absence of a statute requiring hospitals to keep clinical charts or records, many courts adopt the view that such a chart or record is admissible in evidence only under some exception to the hearsay rule, after a proper foundation is laid for bringing the case within the particular exception." That is a statement of the majority view expressed in 75 A.L.R. 378 and 120 A.L.R. 1124. In the case of Clayton v. Metropolitan Life Ins. Co.,
The instrument here was not shown Dr. Schmid as an aid to his memory, nor was he given an opportunity to explain it which was necessary when it is to be used as impeaching evidence. People's Shoe Co. v. Skally,
We have shown that the witness Kidd testified that on the occasion of the execution *211 of the will Fontaine Little then and there, during that transaction, stated that he had himself prepared the will pursuant to the request of decedent, and had called the witnesses.
The testimony of the attesting witness Kidd as to this fact was not contradicted. Fontaine Little did not testify. This statement of Judge Murphy was merely cumulative of what was already in evidence without conflict or objection. Mrs. Little later testified that Fontaine told her that he wrote the will. Assuming that its admission cannot when introduced be sustained on any pertinent legal principle, we think that it could not have been prejudicial to appellant on the basis of her own testimony. (See Record page 366.) Supreme Court Rule 45.
We think that it was material and competent to show the relations between the two men, affecting the question of undue influence also on the issue of testamentary capacity. On both issues the evidence may take a wide range.
The court had in his oral charge clearly and fully defined testamentary capacity, and cannot be held to a reversal for refusing charges defining it in other terms than those used in such oral charge.
There was much evidence of such incapacity as to support a verdict so finding. To rehearse it would consume unnecessary time and space. The charges were refused without error.
There was much evidence to show confidential relations between decedent and Fontaine Little either on his own account or on his mother's, with Fontaine as the dominant party. In connection with this will and its execution Fontaine was acting directly and immediately in the interest of his mother (she said he was her agent) with his own interest in the background and as secondary. Without dispute he wrote the will and secured the presence of the attesting witnesses, and was present at its execution.
The principle seems to be settled that it is not necessary that he should have been the agent of his mother in doing so. If a will is procured by undue influence, it is not essential that the beneficiary participated in thus procuring it. If it is so procured, the animus testandi is absent, regardless of who may be the guilty agent. Henry v. Hall,
If confidential relations existed between him and decedent, and he was active in writing the will or having it done, and executed, especially when in doing so he was acting for his mother by express or implied authority, or pursuant to a common understanding, and he was the dominant party in such relations with decedent, a presumption of undue influence is raised, though he was not directly the person specially favored by the will. Henry v. Hall, supra; Coghill v. Kennedy,
Testator was old for his seventy-two years, had been an habitual drunkard for a long time and was suffering from its effects. He was a very large, heavy man with many peculiarities. He had given Fontaine $40,000, as some of the evidence showed, had two sisters, one brother (apparently), and the children of a deceased sister. After April 1, 1939, when he returned from the Memphis hospital, he lived in the Little apartment until he there signed the will prepared by Fontaine, and then went with him to a Florence sanitorium, and from there to the Hughes home (one of the contestants) in Florence where he spent several months. His home was in Russellville.
It was a question for the jury as to whether Fontaine Little was in confidential relations with decedent, with Fontaine as the dominant party, and whether he was active in writing the will and procuring the attesting witnesses and was acting for his mother. In the event the jury found those to be the facts, the burden was cast upon proponent to refute the presumption of undue influence. That whole issue was properly left to the jury, who were carefully and correctly instructed as to the law on that subject.
The question here is whether in such a case a special finding is a matter of right by the proponent. The issues made by the pleading were (1) want of the due execution of the will; (2) whether it was procured *213 by undue influence exerted (a) by Mrs. Little or (b) by Fontaine Little or (c) by them jointly; (3) whether it was procured by fraud; (4) whether testator had testamentary capacity.
The court gave the affirmative charge for proponent on the issue of fraud, which was number 10 of the contest, and number 3 above. See proponent's given charge No. 14. (Record page 420.)
One of the questions in the requested charges as to testamentary capacity was whether Mr. Burgess was "insanely drunk and intoxicated, and in a stupor at the time he signed the will." That was one of the features of the ground numbered 10 or fraud. It was not made an issue in the charge of mental incapacity. The only grounds of contest in that connection were 4 and 5. They allege that Mr. Burgess was of unsound mind and did not have the mental capacity to execute a will. The proper response to that issue, if a special verdict on it was to be rendered, was not whether he was insanely drunk and intoxicated and in a stupor. The evidence justified a finding of testamentary incapacity, though at the very time of executing the will he may not have been in a drunken stupor. There was evidence of a more or less permanent mental incapacity produced probably by habitual drunkenness. The requirement in this connection did not respond to the issue. So that there was no need for a finding on the issue of fraud, and this feature of the request as to testamentary capacity did not call for a response to the issues made in that respect.
Moreover, as a general rule, the jury has the privilege or option to return a general or a special verdict and finding, and it is not in the province of the court to direct them in that matter. Foster v. Johnson,
Appellant claims the benefit of this principle upon the authority of Johnston v. Johnston,
But that does not mean that the court must at the request of a party always require the jury to render a special verdict, when there are several inconsistent issues, unless so required by statute (Code of 1940, Title 15, § 424), as when a complaint has inconsistent counts and the statute requires a special finding (Code of 1940, Title 7, section 271). When an indictment has several inconsistent counts charging different offenses, a special verdict is not always necessary (Sampson v. State,
In this case the jury could return a general verdict for defendant on a favorable finding for her on any one of three issues (1) due execution, (2) mental incapacity, or (3) undue influence. If they found that the will was not duly executed, that eliminated the other issues and all rulings as to them. If they found that it was duly executed, but that Mr. Burgess did not have testamentary capacity, that eliminated undue influence and rulings as to that issue. And while they need not consider undue influence unless the will was duly executed and Mr. Burgess had testamentary capacity, a special finding as to the former two issues was not necessary for the verdict and judgment to be res adjudicata on all the issues thus made, or to give such judgment proper force and direction, for a general *214 finding for defendant and judgment accordingly was conclusive that the will was not due to be probated, and no special information was needed for any purpose. That alone was the one ultimate purpose of the contest, and settled the entire controversy. A special finding on any of the issues was unimportant to appellant.
Assignment of error No. 95 is the same as assignment No. 30.
Counsel make some reference to assignment of error No. 97, but we cannot find an assignment so numbered.
Affirmed.
GARDNER, C. J., and BOULDIN and LIVINGSTON, JJ., concur.