This was an application to the
The first ground of demurrer to the third ground of contest — •“because it presents no issue of fact or law which avoids said will” — is not a sufficient specification of any objection, as required by the statute, and is therefore too general to be considered. — Code, 1886, §2690. The cause of demurrer must be specifically assigned, in order that defects in the pleading may be distinctly and particularly pointed out, so that the party pleading may certainly be apprised of them from what appears in the demurrer itself, and not from the argument thereof, and, if he can, cure them by amendment. — Sledge v, Swift, 53 Ala. 114. The objection that this ground of contest states two distinct and separate objections to the validity of the will, namely, fraud and undue influence, is not well taken. Under our system of pleading, the fact that a plea is double is not an available defect. — Bolling v. McKenzie, 89 Ala. 476; Corpening v. Worthington, 99 Ala. 544. Even were it otherwise, the statute contemplates the allegation or specification of any number of objections to the validity of the will, and the fact that objections in a particular case, are separated and numbered, as if they -were separate pleas, and two or more such objections were in one numbered specification, will not render the specification demurrable.
The specification numbered 5 sets up three distinct
The statute (Code 1886 §1994, Code 1896 §4292) provides that for the trial of the contest of the validity of a will, “depositions of witnesses may be taken in the'like cases, for the same causes, and in the same manner, as •depositions are taken in civil causes in the circuit court.” The taking of such depositions is therefore governed by the provisions of sections 2802 and 2803 of the Code of 1886 (Code, 1896, §§1834, 1835), and not by rule 53 of Chancery practice. Section 2802 applies only to open commissions for the examination of witnesses without interrogatories, while section 2803 applies to the taki ng of depositions by written interrogatories. The latter section makes no provision for the giving of notice of the time and place of taking the deposition, and does not require the probate judge to instruct the commissioner to give such notice. The failure to give the notice demanded by the jiroponent by indorsement on the cross interrogatories was therefore no ground for suppressing the depositions. — Wisdom v. Reeves, 110 Ala. 431.
The principal objection to the validity of the will relied on by the contestant was that John F. Gleason, the sole beneficiary, at the time lie married the testatrix, had a lawful wife living, and that the suppression of this
It is conceded by counsel for appellant that on an. issue of marriage vel non, evidence of co-habitation and general, uniform reputation, and of the declarations and conduct of the parties while living together, holding themselves out to the world as man and wife, is admissible, and that these facts raise a prima facie presumption of marriage, which will prevail until overcome by evidence or neutralized by counter presumptions. But it is insisted that -when such evidence is met by proof of a permanent separation, without apparent cause, and a subsequent marriage in fact between one of the parties and a third person soon after the separation, not only is the presemption rebutted, but the evidential value of the testimony as to the former cohabitation and declarations is entirely destroyed, and such testimony cannot 1 e considered by the jury for the purpose of establishing the former marriage. The weight of authority and the decisions of this court support the proposition that the presumption of an actual marriage from the fact of con-
The declarations and conduct of the cohabiting parties, while living together, are admissible as of the res gestee. But such declarations made by one of the parties after they have permanently separated and ceased to live together, in a suit in which such party is in no way interested, are mere hearsay, and are not admissible under any of the exceptions to the rule excluding such testimony. Of consequence, the testimony of Spreadbury and Bolan as to the declarations of the al
While undue influence is a species of fraud, yet there are many kinds of fraud which do not constitute undue influence. The latter must be tantamount to coercion, and, in a measure at least, destroy the free agency of the testator, and constrain him to do that which, if there had been no constraint, he would not have done. It involves the substitution of the will of another for that of the testator. Deception and misrepresentation deliberately practiced on the testator- for the purpose of procuring the execution of the Avill, if in fact he is deceived thereby, is such a fraud as will vitiate the will thus procured; but it is not undue influence if the mind of the testator is left free to make such disposition of his property as he chooses. Such is the fraud which is here alleged. Although the evidence tends to show that at the time Gleason married testatrix he had a wife living, there is a total lack of any evidence tending to show that at the time she executed the will she was deceived as to the past life of her husband, and hence that the execution of the will was induced by any deception or fraud. However strong the probability that a woman would not marry a man with knowledge of such facts as are here shown, or, having married him in ignorance of such facts, would not, after becoming informed of them, give all her property to him by will, the law Avill not presume that she had no such knowledge from the mere fact that she did marry him, and did devise all her property to him. There is also an entire want of evidence to show that any undue influence was exercised upon the mind of the testatrix. For these reasons charges numbered 1, 7, S
Many of the charges requested by the proponent assert the proposition that where two or more objections to the validity of the will are alleged in one subdivision of the grounds of contest, and the proponent joins issue thereon, the contestant cannot have a verdict, unless he proves all the objections stated in such subdivision. We think such charges were properly refused. Section 1989 of the Code, as we have said, contemplates the allegation of any number of objections to the validity of the will, proof of any one of which is sufficient to justify the rejection of the will. The fact that these various objections are subdivided and numbered, and that one subdivision contains two or more objections, does not render it necessary to prove all of those contained in such subdivision. Many of the charges also exact too high a degree of proof, in that they require the evidence upon which a verdict is asked to satisfy the minds of the jury. Evidence is sufficient to justify a verdict if it reasonably satisfies and convinces the mind. — Torrcy v. Burney, 113 Ala. 496; Prince v. State, 100 Ala. 146.
There was evidence tending to show that the testatrix was of unsound mind a short time prior to and after the execution of the will, and that she died from acute mania about three weeks thereafter, although it was not shown that the unsoundness of mind was of a permanent' character, such as, when once shown, the law presumes to continue. HoAvever little weight this evidence was en-, titled to, and .however cogent the evidence in rebuttal, it Avas sufficient to justify the submission of the issue to the jury, whose prvmnce alone it Avas to determine its weight. Charges 26 and 27 were, therefore, properly refused.
Although the statutes of Kentucky declare every marriage Aroict unless solemnized in the manner provided therein, and a common-laAV marriage cannot be contracted in that State, yet evidence was properly admitted to show that the cohabitation, Avhich began and continued for ten years in Ohio, Avhere the common-law is presumed to prevail and where a common-law marriage is valid, in the absence of a statute éxpressly prohibiting such marriages, Avas continued for two years longer in Kentucky. Such evidence was not admissible to prove
The charge given at the request of the contestant, which asserts that Gleason and the alleged first wife were in fact husband and wife if they “agreed to live together as husband and wife, and agreed to be husband and wife in the State of Ohio,” ignores cohabitation following the agreement as an element of a valid marriage by mere agreement without solemnization. — Ashley v. State, 109 Ala. 48; Mickle v. State, (Ala.) 21 So. 67; Farley v. Farley, 94 Ala. 503. But, as the fact of cohabitation was not disputed — was, in fact, admitted — the proponent was not injured by the charge. Charge 4, given at the request of contestant, should have been refused. The fact that, at the time Gleason married testatrix, he had a Avife living would not vitiate the will, unless the testatrix Avas deceived and executed the avííÍ in ignorance of the fact, which the evidence fails to sIioav. Charge 6 misplaces the burden of proof as to undue influence; and charge 7 exacts too high a degree of proof. For the errors pointed out, the decree of the probate court is reversed, and the cause remanded.
Reversed and remanded.