O'Donnell v. Rodiger

CLOPTON, J. — Charges which are reconcilable with, and explanatory of each other, must be construed in connection ; and if, when so construed, they are correct, although erroneous as universal propositions, a reversal of the judgment is not warranted. — Insurance Co. v. Goodman, 32 Ala. 108. Construing the first charge given at the request of the proponent, in connection with the charges which present the question of the mental capacity of the testatrix, and interpreting it as we have no doubt the court intended it to be understood by the jury, we do not think it is obnoxious to the criticism made by counsel. The objective proposition of the charge, to which the minds of the court and jury were evidently directed, is the right of a married woman to make a will, without the permission of her husband, and withoxd any provision for him. It does not assume, as a fact, the mental capacity of the testatrix, which the law presumes ; it is not a charge on the effect of evidence, nor does it give the jury any direction as to their verdict. If a charge were expressed in the words of the constitution — that “the real and personal property of any female in this State . . may be devised or bequeathed by her, the same as if she were a femm.e sole; ” or in the terms of the statute— that “ married women may, by last will and testament, dispose of their separate estates,” its correctness would not be controverted. — Con. Art. 10, § 6 ; Code, § 2713. The charge under consideration asserts the same general proposition, and not in [227] broader or more general phraseology. If the contestant supposed himself injured by the generality of the charge, or that it was calculated to mislead the jury, he should have requested a qualifying, or explanatory charge. A charge which asserts a correct legal proposition, but is objectionable on account of generality, or obscurity, or because it is calculated to mislead the jury, will not operate a reversal.- — Jones v. Fort, 36 Ala. 449 ; Abraham v. Nunn, 42 Ala. 51. The same observations are applicable to the third charge requested by proponent, which merely instructed the jury, that the will was legally and properly signed and executed, if they believed from the evidence the hypothetical facts stated in the charge. Construed in connection with the evidence, the charge is unobjectionable. — Riley v Riley, 36 Ala. 496. Sanity is the normal condition of the human mind ; and therefore the presumption is, whether a presumption of law, or of fact, or of mixed law and fact, that every person, of full age, has sufficient mental capacity to make a will. This competency is presumed to continue, until the contrary is shown. When a will is propounded for probate, no general duty devolves on the proponent to make proof, in the first instance, of the sanity of the testator at the time of making the will. Whatever may be the conflict in the decisions of different courts, it may be regarded as too well settled in this State, to be controverted or doubted, that when a will is contested on the ground of mental incapacity, the onus of proof is on the contestant. The time to which the inquiry must be directed, is the particular period when the will is made ; but, for this purpose, the mental condition of the testator, before and subsequently, may be shown. The contestant fulfills this requirement as to the onus of proof, when he establishes lunacy at a time prior to the making of the will. As the presumption is that lunacy, once established, continues, if it is alleged, in such case, that the will was made during a lucid interval, “ the burden of proof attaches to the party alleging such lucid interval, who must show sanity and competency at the particular period.” — Saxon v. Whitaker, 30 Ala. 237 ; Jackson v. Dusen, 2 John. 144 ; Grubbs v. McDonald, 91 Penn. St. 236. In order, however, to have effect to shift the burden of proof on the proponent, to show that the will was made during a lucid interval, the contestant must establish habitual and fixed insanity. Occasional fits, or aberrations of mind produced by temporary causes, are not sufficient. There is no presumption in favor of the continuance of any thing temporary, or ephemeral in its nature. The disease of the mind must be of such general and permanent character, as human experience shows generally continues. Where the insanity is produced by [228] an attack of some acute or violent disease, it is not sufficient for the contestant merely to show its existence, under such circumstances, at a time, short or distant, preceding the making of the will. He must also show its continuance to the time when the will is made. —Brown v. Riggin, 94 Ill. 560 ; Clark v. Sawyer, 3 San. Ch. 351; Hix v. Whittemore, 4 Met. 545. In Saxon v. Whitaker, supra, it is said : “As a lucid interval is temporary in its nature, and uncertain in its duration, the law will not presume its continuance for a month, a day, or an hourthis is when usual or habitual insanity has been once established. The converse of the proposition is equally true: the continuance of a temporary delusion or delirium caused by disease will not be presumed “ for a month, a day, or an hour.” In Staples v. Wellington, 58 Me. 453, it is said : “ If the delusion or delirium is that caused by disease, it is obviously temporary in its character. It will continue only during the continuance of the fever, in which it originated. If a fever is shown to exist at a given date, the law does not presume its continuance, as in the case of fixed insanity. So, there is no presumption of law as to the continuance of the temporary hallucination or delusion resulting from disease. The party claiming to avoid a contract, by reason of temporary hallucination or delusion, must show its existence at the time of the contract sought to be avoided for such cause, and that it was of a character affecting his capacity to make the contract sought to be avoided.” The second charge requested by the proponent put the onus of proof, in the first instance, on the contestant, and, in this respect, is in accord with the principles we have stated. The predicate of the charge requested by the contestant does not answer the rule. That on the day the will was signed, the testatrix “ was sick and flighty ; that during part of the time she knew vdiat she was doing, and part of the time she did not know what she was doing,” is not sufficient to cast on proponent the burden to show that she was sane at the particular time when the will was made. The hypothesis stated is not a condition of fixed or habitual mental derangement or flightiness. The clear implication from the hypothetical facts is, that the flightiness or delirium was temporary, and subsided and, ceased, as the operating cause subsided and ceased. “A total deprivation of reason is not requisite to destroy testamentary capacity. Dementia and idiocy are not the only forms of incapacity. A competent testator must not only have mind and memory, but mind and memory enough to understand the business in which he is engaged.” A disposing memory is requisite — not mere weakness of understanding, but “ power to collect and retain the elements of the business [229] to be performed for a sufficient time to perceive their obvious relation to each other.” The testatrix should have had capacity to know what she was doing. — -Stubbs v. Houston, 33 Ala. 555 ; Taylor v. Kelly, 31 Ala. 59; Converse v. Converse, 21 Vt. 168. This is the test of testamentary capacity applicable to this and similar cases. Affirmed.