Barksdale v. Davis

• Decision Date: 27 April 1897
• Citation: 114 Ala. 623,22 So. 17
• Parties: BARKSDALE ET AL. v. DAVIS ET AL.
• Court: Alabama Supreme Court

22 So. 17

114 Ala. 623

BARKSDALE ET AL. v. DAVIS ET AL.

Supreme Court of Alabama

April 27, 1897

Appeal from city court of Montgomery; John G. Winter, Judge.

Bill by Emma Davis and others against Amanda Barksdale and others to declare will of B. L. Barksdale invalid. Decree on demurrer to bill for plaintiffs, and defendants appeal. Affirmed.

The bill, after setting out the names, ages, and residences of all the heirs at law, alleges: That Benjamin L. Barksdale died in the county of Montgomery, Ala., about the 21st day of November, 1895, leaving a large estate in lands and personal property. That said Barksdale was never married, and left surviving him no brothers or sisters; the contestants being nephews and nieces, or their descendants. The bill further avers: That a paper purporting to be the last will of said B L. Barksdale had been duly probated in the probate court of Montgomery county by E. P. Morrissett, the executor named therein. That letters testamentary issued to the said Morrissett, who had taken possession of all the property of the estate, and is proceeding to administer the same under said will. That neither of the complainants had contested the validity of said will in the probate court, nor had it been contested by any other person. That complainants now contesting said will allege: (A) That said will was not duly executed; (B) that said Benjamin L. Barksdale was not, at the time of the execution of said alleged will, of sound mind (C) that the execution of said will was obtained by undue influence on the part of Amanda Barksdale, one of the devisees in said alleged will; (D) that the execution of said will was procured by fraud on the part of said Amanda Barksdale; (E) that the execution of said will was procured by undue influence by said Martha Barksdale, one of the devisees of said alleged will; (F) that the execution of said will was procured by fraud by the said Martha Barksdale. On each of these grounds the complainants allege that said will was not the last will and testament of B. L. Barksdale deceased, and they prayed that on final hearing the alleged will be declared invalid, and that the former probate thereof be set aside and annulled. Subsequently the complainants amended their original bill by making the following averments: "Orators aver that after the making of said alleged will said B. L. Barksdale made and executed, in the presence of witnesses, as required by law, another will covering the same property, thereby revoking said alleged will; that subsequently said last-named will was itself destroyed by said Barksdale, with the intention of revoking it; and your orators therefore aver that said alleged will admitted to probate as aforesaid was revoked by said B. L. Barksdale, and they urge this as an additional ground of contest of the same. The same relief is prayed against same defendants as in the original bill." To the bill as amended, the defendants demurred upon the following grounds: (1) That it does not set forth in what respect the said will was not duly executed; (2) that, while the bill alleges that the execution of the will was obtained by undue influence of Amanda Barksdale, it fails to set out any facts showing the exercise of any such influence by Amanda Barksdale over the testator; (3) that, while averring that the will was procured by fraud on the part of Amanda Barksdale, the bill does not aver any facts showing fraud; (4) that all the averments of fraud and undue influence are the mere expressions of conclusions of the pleader; (5) said bill, as amended, avers that after the making of said alleged will said B. L. Barksdale made and executed another will, but fails to aver that said other will was in writing, subscribed by the testator, and attested, as prescribed by section 1966 of the Code of Alabama; (6) that said bill, as amended, fails to set out the contents of said alleged other will, or any clause or provision thereof showing the intention of said testator to revoke the original will heretofore admitted to probate, and named in said bill; (7) that said bill, as amended, fails to aver that said alleged revoked will was revoked by burning, tearing, canceling, or obliterating with the intention of revoking it, by the testator himself, or by some person in his presence, and by his direction. Upon the submission of the cause upon the demurrers, the chancellor decreed that the demurrers were not well taken, and ordered them overruled. From this decree the respondents appeal, and assign the rendition thereof as error.

E. P. Morrissett and Stallings & Wilkinson, for appellants.

John M. Chilton and J. Winter Thorington, for appellees.

HEAD J.

The bill sets up several distinct grounds upon which it is proposed to contest the probate of the will of B. L Barksdale. The sufficiency of the second ground (marked "B") is not challenged by the demurrer, and, indeed, could not be. The demurrer goes to the whole bill, and, if sustained, would have the effect of putting out of court (unless amended) a bill which confessedly shows a good and sufficient cause for setting aside the probate. The court could not do otherwise than overrule it. If it was desired to test the sufficiency of the other grounds set up, the demurrer should...