Tucker v. Houston

*46 SAYRE, J. The last will and testament of Margaret T. Johnson, deceased, was contested by appellants by a bill filed on the equity side of the circuit court of Calhoun. Complainants (appellants) demanded a trial by jury, and, such trial being had, a verdict was returned in favor of the validity of the will, and on November 11, 1925, the court entered its decree in agreement with the verdict. November 30th, thereafter-, complainants “moved the court to set aside the verdict of the jury and judgment of the court in this óause.” December 5th the motion was overruled. A bill of the exceptions reserved at the trial by jury was presented to the judge who presided at the trial on March 1, 1926, and a bond for appeal was filed and approved June 2, 1926. A bill of exceptions must be presented to the judge or clerk at any time within 90 days from the day on which judgment is entered, but presentation of the bill within 90 days after the granting or refusing of a motion for a new trial is sufficient to- preserve for review the rulings of the trial court on the trial of the original cause, as well as the ruling of the court on the motion for a new trial. Section 6433 of the Code. An appeal in the ordinary case must be taken within six months from the rendition of the judgment or decree. Section 6127 of the Code. It will be observed that, if the presentation of the bill of exceptions and the filing of the bond for appeal be dated from the decree of November 11, 1925, both came too late; but, if dated from the decree overruling the motion for a rehearing —new trial, it is called — both were within the time prescribed by statute. In Lewis v. Martin, 210 Ala. 401, 98 So. 635, the trial of the issue of devisavit vel non before a jury is likened in every respect to the trial of a civil case at law. The court in that case went so far as to hold that, pending a motion for a “new trial or rehearing,” the decree does not become final and will not support an appeal, and that rule 81 of chancery practice has no application to a case of this character. In other words, it was ruled that, notwithstanding the bill to contest a will must be filed on the equity side of the court, it is to alb intents and purposes an action at law. This seems to the writer to be at variance with the decisions in Ex parte Colvert, 188 Ala. 650, 65 So. 964, and Kilgore v. T. C. I. & R. Co., 191 Ala. 189, 67 So. 1002; but the court here and now prefers to stand by the precedent afforded by Lewis v. Martin, supra: Accordingly, the motions to' strike the bill of exceptions and to-dismiss the appeal are both overruled. Birmingham College, now known as. Birmingham-Southern College,, a Methodist institution, was named in the will of deceased as residuary legatee, and this-made it the-largest beneficiary under the will. Appellants-, sought to challenge a number of jurors on the-ground that they were members of the Methodist Church. As members- of the Methodist Church, these jurors had no pecuniary interest in the issues involved, and the court committed no error in overruling appellants’ objection to these jurors. Ex parte State Bar Association, 92 Ala. 113, 8 So. 768; Burdine v. Grand Lodge, 37 Ala. 478. Appellants by numerous assignments of error seek to get before the court their proposition that they were entitled to have the-jury consider the question of undue influence on the part of -Woolverton, who prepared the will in contest at the instance and request of testatrix and was in it named as executor. Our opinion is that no such issue was propounded by the contest filed, and hence there-was no error in excluding from the jury all evidence or refusing instructions by which-, appellants sought to raise the question. The original bill averred as grounds of contest (1) “the said Margaret T. Johnson [testaLrix] was of unsound mind” ; and (2) she “did not have testamentary capacity.” By an. amendment it was charged that “the said purported will of the said Margaret T. Johnson is not the will of the said Margaret T. Johnson.” These averments related to the-time of the execution of the will, as the original and amended bill sufficiently showed. No objection by demurrer to these averments was-taken. By them and the denials of the main defendant, the Birmingham-Southern College,, an issue was formed as to the testamentary capacity of testatrix. When it is determined *47 that the proponent or any interested party has exerted undue influence, thereby inducing the execution of the will, such instrument is not the will of the deceased by whom it was executed. But this proposition has nothing to do with the construction of the pleadings in a cause of this character. It is far from the equivalent of an assertion that, to raise the issue of undue influence, it suffices to allege merely that the instrument in contest is not the will of deceased. It has been held, very correctly of course, that, to require the contestant, who would contest a will on the ground of undue influence, to set out in detail the means by which the influence was acquired and the manner in which it was exercised, would require in most cases the impossible, since the knowledge of these facts most frequently, if not always, rests in those who are most interested in withholding it. Coghill v. Kennedy, 119 Ala. 641, 24 So. 459; Strickland v. Strickland, 206 Ala. 452, 90 So. 345; Alexander v. Gibson, 176 Ala. 258, 57 So. 760; Barnett v. Freeman, 197 Ala. 142, 72 So. 395. And in Letohatchie Church v. Bullock, 133 Ala. 548, 552, 32 So., 58, 59, McClellan, C. J., summed up the authorities of antecedent date as follows: “We have never understood it to be necessary to allege with particularity the quo modo the result complained of was accomplished, but only that it was accomplished by undue influence exerted by named persons. * * * Hence it is that the averment should be rather of the result than of the particular and special .acts and modes of causation.” Appellants, we may presume, had in mind a part of the statement quoted above when they framed the amendment of the bill heretofore (Stated. But it seems elea'r they overlooked, avoided, or ignored that part of the statement in which it was said, in effect, that it is necessary in such cases to aver that the execution of the instrument in contest was accomplished by undue influence exerted by named persons. That this would have been held on demurrer to be a fatal oversight has been ruled in later cases. Johnson v. Johnson, 206 Ala. 523, 91 So. 260; Daggett v. Boomer, 210 Ala. 673, 99 So. 181. We would not impose the .duty upon the court, nor confer the privilege, <of demurring to bills brought to contest wills. But our opinion is that, if appellants desired to contest the alleged will on the ground of undue influence, they should have so informed the court, and were properly not allowed to require the court, as often as appellants proposed some action on its part, to east about for some possible ground, some relevant issue .unstated in the pleadings, on which to rule in .•agreement with appellants’ contention. As the case was, the averment that “the said purported will * * * is not the will” of deceased, without more, no more expresses one possible ground of contest than another. It ,<iid no more than express the desire of appellants to contest the will of deceased on some unstated ground. In the presence of such pleading, the court must be justified in judging all questions raised between the parties, apart from questions as to the sufficiency of pleadings, on the basis of their relevancy to the one stated, ground of contest, viz. the testamentary capacity vel non of the deceased; nor can it be put in error that it refused to accommodate its rulings to the mere verbal interpretations of counsel, if any such were offered to the court, to the effect that undue influence-was an issue in the cause. This will serve to indicate our judgment as to many of the assignments of errors argued in the briefs for appellants. It may be conceded that the question asked of Dr. George R. Stuart, a minister of the Gospel, whether, “in your opinion, did you. know her [testatrix] well enough, or possess sufficient acquaintance with her, to express' an opinion as to whether she was of sound or unsound mind?” was objectionable as asking for the opinion of the witness as to his own competency rather than the facts on which the court would adjudge his competency ; but the witness had already stated, and again in answer to this question stated, facts which abundantly justified the court in admitting the opinion of the witness, that testatrix was of sound mind at and about the time of the execution of her proposed will, as competent evidence. The competency of the witness was certainly a question for the court, and the court correctly ruled that the witness was competent when his answer to this and other questions of like import were allowed to go to the jury. Ford v. State, 71 Ala. 397; Parsons v. State, 81 Ala. 577, 2 So. 854; Jones v. State, 181 Ala. 80, 61 So. 434. As for the witness Dr. H. S. Ward, he was shown to be a medical expert in the relevant line of mental disease, had known deceased during her lifetime; and had consulted with her on the subject of her health a Short time before her death. 1-Ie was competent to express an opinion as to her sanity, the force and value of that opinion being a question for the jury. White v. State, 133 Ala. 126, 32 So. 139. And these observations in our opinion sufficiently answer a number of the assignments of error raising substantially the same or similar questions. However, we will say of the witness Reese, who had collected rents and supervised repairs for testatrix and discussed with her related matters of business— she being interested in the sale ¿nd leasing of negro 'property in Birmingham, some 200 lots or more, and of the witness Leila Leslie, who had known testatrix for many years, a considerable degree of intimacy having existed between their families — we would say of them that they were qualified as nonexperts to express opinions as to the mental capacity of testatrix, and that, even though we had some doubt as to that, as we have not, the matter of *48 admitting their testimony must be left to the sound discretion of the trial court, not to be revised except for palpable abuse (Odom v. State, 174 Ala. 4, 56 So. 913), of which, in this case, we find no indication whatever. As for the witness J. Knox Fleming, according to the standard of qualification already accepted in this case, he was competent to testify concerning the sanity of testatrix. His qualifying testimony was that he was an active vice president of a bank in Birmingham—testatrix had lived in Birmingham—“the largest bank in Alabama,” and in that relation had had business transactions with testatrix. Appellants complain that this witness was allowed to say that his bank had a deposit account of $35,000,000. They complain that this testimony was calculated to impress the jury unduly with the prestige and importance of the witness. We do not find reversible error in this ruling by the court. The jury were entitled in a general way, the reasonable limits of which were to be set by the court, to be informed as to what manner of man the witness was. As we said in Barfield v. South Highlands Infirmary, 191 Ala. 568, 68 So. 36, Ann. Cas. 1916C, 1097: “It is common practice to introduce a witness with inquiries of this character, though they be of slight or no importance as decisive factors in the case.” The trial court excluded testimony as to the financial condition of the numerous nephews and nieces of testatrix, to whom she left $100 each, and who, in case of her intestacy, would have been distributees of her estate worth $75,000 or more. This testimony would have been relevant and material had the issqe of undue influence been presented by the pleadings (Stubbs v. Houston, 33 Ala. 555; Fountain v. Brown, 38 Ala. 72); but we have heretofore stated our reasons for holding that the court cannot be convicted of error in refusing to treat that as an issue in the cause. The court committed no reversible error when it refused to hear the testimony of Smith that testatrix was under the influence of morphine “right before the will was made.” This witness knew nothing of any morphine having been administered, as he testified, nor did it appear that he was competent to give an opinion on that subject, in the absence of knowledge of the facts which would show an administration of the drug. Witness had no such knowledge. We are unwilling to reverse the decree in this cause on account of those rulings of the court by which appellants were denied the right to ask the witness Fannie Harrison about insanity in the family of deceased. The several questions designed to elicit the desired information were hardly framed as they should have been. The question, “Was there insanity in the family?” was entirely too general. There may have been insanity “in the family” so remote or of such character as to afford no probability whatever that testatrix was insane. 14 Ency. Ev. 359, 360. Appellants appear to have had in mind the case of a sister “who died in the asylum.” The inquiry did not ask for the mental state of the sister, but for a circumstance that may have had no relation to that state. Moreover, we understand appellants’ question to have reference to a Mrs. Scott, as to whom, by another witness in probably a better position to know, it was shown without dispute that she died insane. Transactions between the witness Reese and the Princeton Land Company several years after the death of testatrix, and the deed by which Woolverton put into execution the devise to the Birmingham-Southern College, was excluded without error. These transactions could shed no light upon the only litigable question in the case, viz. the testamentary capacity of testatrix. The title of the subdivision lots heretofore mentioned was in the Princeton Land Company. But testatrix was the owner of that company for all I>raetical purposes. Reese and Woolverton each owned a single share. But we do not see how the transactions inquired about reflected upon the integrity of these witnesses or tended to impeach their testimony as interested witnesses. The proposition of charge G, given at the request of appellees, is certainly sound; if in the least misleading, as appellants think it was, the available remedy was to request an explanatory charge. Charge J was also given without error, as our cases hold. 12 Mich. Dig. p. 958. If, as the charge hypothesizes, testatrix knew and understood the business she was engaged in, when making her will, it may be fairly presumed that she knew the objects of her bounty. Bulger v. Ross, 98 Ala. 271, 12 So. 803. In charge K the court correctly stated the issue and the burden of proof. 12 Mich. Dig. supra, § 25. Charge 4, requested by appellants, was properly refused. It was no concern of the jury what became of the property of testatrix in the event the will was set aside. Charge 9 was an argument. Charge 10 sought to raise an issue of fraud not pleaded. It was properly refused. So of 11 and 12. Charge 13 was faulty, for one thing at least, in that it predicated invalidity of the will on “mental delusion,” whereas any delusion, to have that effect, must have been am “insane delusion.” McBride v. Sullivan, 155 Ala. 173, 45 So. 902. We doubt that there was. evidence which, even though undisputed,, would have authorized a finding of delusion, in any sort. Other assignments of error have been disposed of by our statement as to the issue of undue influence. *49 The motion for a “new trial,” as it is referred to in the brief, raised nothing new. The decree is affirmed. ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.