Lockridge v. Brown, 63 So. 524

Lockridge v. Brown

63 So. 524 | Ala. | 1913

ANDERSON, J.

— The record in this case was filed in this court, in November, 1909, and the cause was several times continued. It was then submitted upon the merits, and upon a motion to strike the bill of exceptions, and no point was made as to the delay in filing the record. The motion to strike the bill of exceptions was sustained, and the case was affirmed by this court. The judgment was then set aside by consent of parties, as well as the submission, and the case was again submitted at a subsequent term upon the merits and upon motion to strike the record because not filed in time. This motion to strike, not having been made until this late day, comes too late, and the same is overruled. — Martin Machine Works v. Miller, 132 Ala. 629, 32 South. 305.

It may be true that the fourth interrogatory to the witness Patton was objectionable, as it sought to prove the execution of the will in an improper way, but the *112evidence in this respect was merely corroborative of the testimony of the witness Clarke, who had proved the 'execution of the will in the proper way, and whose evidence was not contradicted. In other words, while the grounds of contest may have charged, among other things, that the will was not executed, yet the execution of same was properly proved by the witness Clarke; and, as there was no contradictory evidence on this point, the court could have,given affirmative instructions as to the execution of the will, regardless of the «corroborative or cumulative evidence of the witness Patton in response to the fourth interrogatory; and which related to the execution of the said will.

It is no doubt true that the question asked the witnesses Andrew and B. M. Knight, 'upon rebuttal, as to whether or not in their judgment the testatrix was mentally capable of making a will disposing of her property was illegal, but it was in rebuttal to the proof brought out by the-appellant under identical questions Which had been objected to by the appellee. A party cannot complain of the admission of illegal evidence, in rebuttal of illegal evidence introduced by himself.— Winslow v. State, 92 Ala. 78, 9 South. 728; McIntyre v. White, 124 Ala. 177, 26 South. 937.

There was no error in refusing charges 1, 2, and 3, requested by the appellant. The appellant merely repeats the assignment of error in the brief, and cites section 6172 of the Code of 1907. It is questionable as to whether or not this is a sufficient insistence, but if it was, it would be without merit as the statute requires the attestation to be in the presence of the testator, not necessarily at his personal request, non constat, Ray was acting for testatrix.

There was no error in refusing the appellant’s requested charges 8, 9, 10, 11, 12, 20, 21, and 22. They *113place the onus upon the contestee upon the existence of a confidential relationship alone, and pretermit any activity on his part in procuring the making of said will. They seem to have been based upon the holding in the case of Moore v. Skill, 80 Ala. 129, but which said case was overruled in Bancroft v. Otis, 91 Ala. 279, 8 South. 286, 24 Am. St. Rep. 904, wherein it was laid down that confidential relationship between the testator and beneficiary alone does not raise the presumption that the will was procured by undue influence, as there must be evidence, in addition to the fact of relationship, of the active interference of the beneficiary in procuring the execution of the will. This rule as thus laid down is approved in the case cited by appellant (Coghill v. Kennedy, 119 Ala. 665, 24 South. 459).

“The law presumes that every man is sane until there is evidence to the contrary. — Barnewell v. Murrell, 108 Ala. 379, 18 South. 831. The burden of proof is upon the party attacking a conveyance to show the incapacity of the grantor at the time it is made, and insanity prior to that time does not raise the presumption of insanity at a subsequent time, unless it is shown that the insanity is permanent in its nature. — Johnson v. Armstrong, 97 Ala. 731, 12 South. 72; Murphree v. Senn, [107 Ala. 424, 18 South. 264. Therefore proof of insanity at intervals or of a temporary character would create no presumption that it continued up to the execution of the instrument, and the burden wónld be upon the attacking party to show insanity at the very time of the transaction. On the other hand, when mental incapacity is once established and is shown to be permanent in its nature, the law presumes that it continues, and the party claiming insanity meets the burden when once establishing permanent insanity. If the insanity is not questioned, but the act involved is claim*114ed to be during a lucid interval, the burden of proof would be upon the party suggesting the lucid interval.” ' — Pritchard v. Fowler, 171 Ala. 662, 55 South. 147.

Charge 19, refused the appellant, if not otherwise faulty, is bad for pretermitting the hypothesis that the attack of la grippe in the spring of 1899 was such as rendered testatrix permanently insane. It may have so impaired her mind that she did not comprehend or know her property, or appreciate the fact of making a will, yet unless the incapacity was permanent, it was not incumbent upon the proponent to show that she was sane when the will was made.

The trial court will not be reversed for refusing-charges 30 and 32, requested by the appellant. In the first place, they are abstract, as there was no evidence tending to show any act or conduct upon the part of the appellee to induce the testatrix to make the will, and the only connection that he seems to have with the whole transaction was to accompany her to Detroit at her request. Second, if the charges were not abstract they place too great a burden upon the appellee. All that the law would require of him would be to reasonably satisfy the jury that' he used no undue influence, yet these charges say he must “show” the jury that he used no undue influence. The word “show” could be considered by the jury as a much stronger term than “reasonably satisfy,” and the use of same was calculated to mislead. — Dorrough v. Harrington, 148 Ala. 311, 42 South. 557; Vandeventer v. Ford, 60 Ala. 610.

The only insistence as to error, in brief of appellant’s counsel, as to appellee’s given charges 11, 30, 31, 32, 35, 37, and 38, is that they are abstract and calculated to mislead. This vice will justify the refusal of such charges, but the trial court will not be reversed for giving same unless it appears that they operated to the *115prejudice of the appellant, and counsel do not point out or suggest to us how or in what manner they could have misled, or that their misleading tendencies could not have been explained by counter charges.

Charge 33, given at the request of the appellee, is a copy of a charge which was sanctioned in the case of Knox v. Knox, 95 Ala. 499, 11 South. 125, 36 Am. St. Rep. 235. See charge 7 in said case.

The judgment of the probate court is affirmed.

Affirmed.

Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.