Gaither v. Phillips

ANDERSON, C. J. This is the second appeal in this case. See same parties, 191 Ala. 87, 67 South. 1001. The law as to what constitutes such undue influence as to avoid a will has been so often declared by this court that a citation of some of the leading cases should suffice.—Council v. Mayhew, 172 Ala. 295, 55 South. 314; Mullen v. Johnson, 157 Ala. 272, 47 South. 584; Coghill v. Kennedy, 119 Ala. 641, 24 South. 459; Eastis v. Mont [694] gomery, 93 Ala. 300, 9 South. 311; Bancroft v. Otis, 91 Ala. 279, 8 South. 286, 24 Am. St. Rep. 904. While the burden of proof was upon the contestant to establish the testamentary incapacity of the testatrix at the time of the execution of the will, and also the codicil, which was also attacked, we think that the evidence adduced was sufficient to make the question one for the jury, and there was no error in refusing the general charge requested by the proponent. (1) There was no error in giving charge 8, requested by the contestant, as it is in the abstract a correct statement of the law.—In re, Ellwanger (Sur.) 114 N. Y. Supp. 727, order affirmed 136 App. Div. 909, 121 N. Y. Supp. 1122; Kramer v. Weinert, 81 Ala. 416, 1 South. 26; Council’s Case, supra. Of course, the testamentary incapacity must be shown at the time of the execution of the will, but the failure to hypothesize this fact in charge 8 did not render it faulty as an assertion of the general legal proposition, and the proponent could have protected herself from any misleading tendencies of the charge by counter instructions, confining the consideration of the testatrix’s incapacity to the time of the execution of the will and codicil, one or both. This omission might have justified the refusal of the charge, but reversible error cannot be predicated upon the giving of same. (2) Charge 13, given for the contestant, was in the abstract correct, and the trial court did not commit reversible error in giving same.—Smith v. Smith, 174 Ala. 205, 56 South. 949. Nor do we think that the addition thereto or the omission therefrom of the word “undue” would seriously affect the charge in the assertion of the proposition therein advanced. (3) Charge 21, given for the contestant, should have been refused. It asserted no legal proposition, and is misleading and prejudicial. It is bad for the use of the word “only,” and is also calculated to lead the jury to believe that the contestant would meet the burden of proof by satisfying the jury as to any fact. It pretermits the fact that in order to meet the burden of proof, the party upon whom it devolves must reasonably satisfy the jury as to the truth of the material issue or issues which the law requires him to establish. (4) Charge 17, given for the contestant, should.have been refused. It is bad for using the word “must,” instead of “may,” and requires that an unnatural disposition must be taken into consideration by the jury, and pretermits the instructions that it [695] may be considered together with or in connection with all the ■ evidence in the determination of the issue involved. (5) Charges 22, 23, and 24, given for the contestant, were sanctioned in the case of Cogbill v. Kennedy, 119 Ala. 646, 24 South. 459, and we do not think that the giving of same was reversible error in the case at bar. (6) Charge 25, given for the contestant, seems to comply substantially with what was said upon the former appeal of this case. (7) The trial court did not commit reversible error in giving contestant’s charge 26. If the will was invalid, the contestant was entitled to a verdict declaring it so, and the fact that the charge pretermitted the codicil could have been explained by a counter charge. If the charge was faulty at all, it was merely as to form, and which may have justified its refusal, but, as it could have been explained or qualified by a counter charge, we do not think that the giving of same was reversible error. (8) There was no error in giving contestant’s charge 28. (9) Charge 29; given for contestant, is involved and misleading, and should be refused upon the next trial. (10) Charge 30, given for the contestant, correctly asserts the law. (11) There was no error in permitting proof as to the financial condition of Mrs. Gaither at the time the will was made. (12) The trial court erred in not permitting the proponent to ask Dr. Phillips if he ever discussed with the testatrix her marriage with Mr. Siddons, and whether or not he criticised her severely for doing so. Of course, the time should antedate the execution of the will and codicil, but the trial court would not let him tell whether or not he ever had a conversation with her on the subject. The contestant advanced the theory that he was'on good terms with his sister Mrs. Simmons, and that she had been prejudiced or influenced against him by Mrs. Gaither and her daughter, and it was competent for the proponent to show that the testatrix may have formed a dislike for him for other causes.—40 Cyc. 1161. (13) As above stated, proof of the financial condition of those who would naturally be objects of a testator’s bounty, in passing upon the justice or inequality of a will in so far as it bears upon the question of fraud or undue influence, should be received. The contestant was permitted to show the financial [696] worth of Mrs. Gaither and his own worth in comparison therewith, and the proponent should have been permitted to show that the wife of Dr. Phillips- owned certain property as a circumstance bearing upon the question as to whether he was or was not in a necessitous condition.—40 Cyc. 1160; Eastis v. Montgomery, 95 Ala. 486, 11 South. 204, 36 Am. St. Rep. 227. Of course, this proof should be confined to a date corresponding with the execution of the will which is undergoing a contest. (14) Phillips had introduced evidence for the purpose of showing that he was on friendly terms with his sisters, and the proponents should have been permitted to show that he had talked derogatory of his kinspeople; that is, the two sisters. (15) The note written by Dr. Phillips to Mrs. Siddons, inviting her to come to see him while in Russell county, was not, of course, admissible, unless the proof showed that it had been received and read by Mrs. Siddons or Mrs. Gaither, one or both; and there was some evidence that it was carried by a boy to Mrs. Gaither’s house, delivered, and returned, and as to whether or not this fact was properly proved we are not concerned, as there seems to have been no objection to this pa'rt of the evidence, and, as there was evidence tending to show that Mrs. Gaither and Mrs. Siddons had received and returned the note, the introduction of same was without error. There is no merit in the other objections to the evidence. The judgment of the probate court is reversed, and the cause is remanded. Reversed and remanded. Mayfield, Somerville, and Thomas, JJ., concur.