Bardin v. Jones

• Decision Date: 18 May 1979
• Citation: 371 So.2d 23
• Parties: Bertha J. BARDIN v. Wilson JONES. 77-646.
• Court: Alabama Supreme Court

Page 23

371 So.2d 23

Bertha J. BARDIN v. Wilson JONES.

77-646.

Supreme Court of Alabama.

May 18, 1979.

W. Michael Young, Montgomery, for appellant.

Ira Dement, Montgomery and J. Fletcher Jones, Andalusia, for appellee.

FAULKNER, Justice.

The will of Minnie Faler was filed for probate by her executor but was contested by Bardin, a sister, and several others on the ground of undue influence. The case was transferred to circuit court for a jury trial where the circuit limited the issues to those raised in the probate court. At the close of contestants' case the court directed a verdict for the proponents from which Bardin alone appeals. We reverse and remand for further proceedings.

Minnie Faler, a childless widow of 91, died on July 13, 1977, leaving a will dated June 10, 1977. She had previously executed wills in January, 1977, and March, 1977. The January and March wills both divided the estate equally among her brother and sisters, but the June will left the lion's share to one sister, Cora Plant, with hefty bequests to some of Faler's nieces. The shares of her brother and other sisters were significantly reduced. The June will named Wilson Jones, an accountant, as executor. While Wilson Jones was not a beneficiary under the will, his wife, Jean, is one of the nieces who will profit handsomely under the June will and who would not have taken under the earlier wills.

Prior to March, 1977, Faler lived in Andalusia where she was cared for by her sister, Bertha Bardin (the appellant). In March Faler moved to an apartment in Florala two doors from another sister, Cora Plant. There was testimony that Cora Plant, Jean Jones, and several others did not want Faler in Florala, apparently due to an old enmity. They did, however, become friendly after the move.

In March Faler's business affairs were taken over by Wilson Jones. She executed a general power of attorney in his favor and substituted him as executor in her March will. He inventoried her assets and found them to be about $81,000.

In May after she suffered a fall Faler moved in with Cora Plant. A house was purchased with Faler's funds, the deed listing Faler and Cora Plant as joint tenants with right of survivorship. There was testimony that Faler did not know of the survivorship provision.

In June a new will was drafted by attorney Fletcher Jones (no relation to Jean and Wilson Jones), based on discussions among Faler, Cora Plant, Jean and Wilson Jones, and others who became beneficiaries. The will was witnessed by Fletcher Jones and his secretary, with Wilson Jones and Cora Plant present at the drafting conference. Percentage shares in the June will were prepared by Wilson Jones. At trial witnesses testified that several of the favored beneficiaries bragged to others about their influence on Faler and the drafting of the will. Testimony on Faler's mental capacity throughout these months was in sharp conflict. The contestants' case included considerably greater detail on the relationships between Faler and her relatives, much of which was denied by the proponents of the will. Of course, the credibility of the various witnesses would have been a question for the trier of facts.

On appeal Bardin urges three grounds for reversal. First, Bardin states that the circuit court erred in striking certain paragraphs in contestants' answers relating to testamentary capacity. In doing so the court stated that it was limited to those issues transferred to it by the probate court, citing Hooper v. Huey, 293 Ala. 63, 30 So.2d 100 (1974). In Hooper we discussed § 43-1-78, Code 1975 (formerly Tit. 61, § 63, Code 1940), which provides for the transfer of a will contest to circuit court for a jury trial. That section states:

"Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made, and must certify all papers and documents pertaining to the contest to the clerk of the circuit court, and the case shall be docketed by the clerk of the circuit court and a special session of said court may be called for the trial of said contest or, said contest may be tried by said circuit court at any special or regular session of said court. The issues must be made up in the circuit court as if the trial were to be had in the probate court, and the trial had in all other respects as trials in other civil cases in the circuit court. . . . After a final determination of the contest, the clerk of the circuit court shall certify the transcript of all judgments of the circuit court in such proceedings, together with all of the papers and documents theretofore certified to the circuit court by the probate court, back to the probate court from which they were first certified to the circuit court, and thereafter shall be recorded in the probate court as all other contested wills are recorded in the probate court."

This provision must be read in conjunction with § 43-1-70, Code 1975 (formerly Tit. 61, § 52, Code 1940) which provides:

"A will, before the probate thereof, may be contested by any person interested therein, or by any person, who, if the testator had died intestate, would have been an heir or distributee of his estate, by filing in the court where it is offered for probate allegations in writing that the will was not duly executed, or of the unsoundness of mind of the testator, or of any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court, between the person making the application, as plaintiff, and the person contesting the validity of the will, as defendant, and such issue must, on application of either party, be tried by a jury."

In Hooper we stated, "The circuit court may consider only those issues transferred to it from the probate court and the resolution of these issues must be certified back to the probate court," citing what is now § 43-1-78. We are now presented with the question of whether or not a Rule 15, ARCP amendment or similar addition to the pleadings is permissible in the circuit court.

Initially we note that the Rules of Civil Procedure specifically apply to will contests "to the extent that the practice . . . is not provided by statute." Rule 81(a)(5), ARCP. In addition § 43-1-74, Code 1975, provides:

"For the trial of such contest, depositions of witnesses may be taken in like cases, for the same causes and in the same manner, as depositions are taken in civil actions in the circuit court. In all matters relating to the organization and impaneling of the jury, to the evidence, mode of proceeding and investigation and determination of such contest, not specially provided for by this article, the court shall proceed and be governed by the same rules and regulations, so far as applicable, as prevail in courts of law in civil cases."

This section is further reinforced by § 43-1-78 itself which states, "The issues must be made up in the circuit court as if the trial were to be had in the probate court, and the trial had in all other respects as trials in other civil cases in the circuit court." In reference to this latter provision it has been observed, " 'The issue should be made up under the direction of the court on proper pleas specified in the contest as directed in (§ 43-1-70). . . . Parties to a cause are entitled to know in advance of trial what issues are to be met.' " Thigpen v. Walker, 251 Ala. 426, 37 So.2d 923 (1948), quoting Mindler v. Crocker, 245 Ala. 578, 18 So.2d 278 (1944). Thigpen went on to provide:

"It is also settled that in the trial of the issues of the contest certified out of the probate court to the circuit court under (§ 43-1-78) that the jurisdiction conferred on the circuit court is statutory and limited, and to warrant the exercise of that jurisdiction there must be pending in the probate court a valid contest when the probate court or the judge thereof enters the order transferring the contest to the circuit court. . . .

"While it is well settled that the proceeding in the probate court to probate a will is in rem, it is clear from the provisions of the statute authorizing the removal of a contest to the circuit court, a court of law, that the proceedings in that court are inter partes and in personam to be tried and disposed of as other civil actions at law.

"The jurisdiction and authority of the circuit court is limited to the trial of the issues presented by the contest after which the case must be certified back to the probate court."

From the above-cited authorities it is clear that the probate court prior to transfer could allow additional issues to be presented to it in accordance with the Rules of Civil Procedure, so long as those issues could properly be raised in a will contest. It may often happen that viable issues will not be revealed until depositions are taken, as is specifically authorized under § 43-1-74, Supra. Consequently, we see no justifiable reason to limit the parties in the presentation of their case simply because the contest has already been transferred. Such a ruling would herald a return to the abandoned practice of "trial by battle" and would be an anachronism in a legal system in which the avowed purpose of procedural rules is "to secure the just, speedy and inexpensive determination of every action." In short we now hold that the...