Barnett v. Freeman

Citation72 So. 395,197 Ala. 142
Decision Date01 June 1916
Docket Number6 Div. 265
PartiesBARNETT v. FREEMAN.
CourtSupreme Court of Alabama

On Rehearing, June 30, 1916

Appeal from Probate Court, Winston County; John S. Curtis, Judge.

John Barnett, as executor, propounded for probate the last will and testament of Lizzie Freeman, deceased, with contest by A Jack Freeman. From a judgment denying probate, the executor appeals. Reversed and remanded.

Freeman alleges that he is one of the beneficiaries under the will and that on May 23, 1910, while in good health and sound and disposing mind and memory, said Lizzie Freeman made and executed her last will and testament, making contestant and Fannie Perry, the residuary legatees of her said estate, and that that will is now in the possession of Josie Barnett, and Jane Bull, or under their control, and that proper proceedings had been begun to cause its production in court and said will has never been legally revoked; that the instrument now offered for probate bears date July 5, 1915 and undertakes to bequeath to Jane Bull the sum of $1,000, to be paid out of the estate before the residue is payable to contestant and Fannie Perry, thus reducing the residue of the estate. The reason given why the will of July 5, 1915, is not a legal will is that the testator made and signed the instrument just before her death, and at a time when, by reason of bodily weakness and medicines which she had taken, and for other causes, her mind was enfeebled and impaired to the extent that she was incapable of understanding the contents of the instrument, and the result of her act in finding the same, and mentally incapable of making and executing the will. Declaration 5 of the contest is as follows:

Lizzie Freeman was caused to execute the instrument referred to in paragraph 4 (matter last above set out) by reason of overreaching, persuasion, undue influence, or domination on the part of Jane Bull, her sister, John Barnett and wife, Josie Barnett, brother-in-law and sister of Lizzie Freeman, in this: For a long time before her death and before the execution of the will of July 5th she was in bad health and expected to die, and was very feeble in mind and body, and at the time she executed the same she was living with said Barnetts and Jane Bull, and had been for a long time; and, notwithstanding that she knew that all the property she held in her name was the property of her late husband, J.R. Freeman, or the proceeds of same, and of right should go to his heirs, and the said Barnetts and Jane Bull well knew the same, they insisted she could will to Jane Bull $1,000, because she was an unmarried person and had no one to care for her, and persuaded her to believe that she should have a right, moral right, to dispose of $1,000 of property as she pleased after her husband's death, and by reason of said undue influence, as aforesaid, the said instrument was not the will of Lizzie Freeman, but the will of the said parties who had her to so make the will.

The sixth paragraph alleges fraud in that the parties named, her relatives, led her to believe that the making of the will now propounded for probate would not revoke the former will.

R.L. Blanton, of Haleyville, for appellant.

W.V. Mayhall, of Haleyville, for appellee.

ANDERSON C.J.

The declaration of contest avers that A. Jack Freeman, the contestant, was not only a legatee under the will of 1910, but was a legatee under the will that was under contest, and he was therefore so interested in the will contested as to authorize him to make the contest under section 6196 of the Code of 1907.

In defining the necessary averments in the contest of a will for undue influence, as distinguished from fraud, our court has held that it was not 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. Alexander v. Gibson, 176 Ala. 258, 57 So. 760, and cases there cited. Declaration 5 was not subject to the contestee's demurrer. True, it may be redundant, but the unnecessary and improper matter should have been stricken upon motion, but it did not render the same demurrable.

Oscar Freeman was a stepson of testatrix, and had known her intimately for years, and the trial court did not err in permitting his opinion as to her mental condition when he visited her the 4th and 5th of July; the will having been made on said 5th of July. Pritchard v. Fowler, 171 Ala. 662, 55 So. 147.

The fact, of how the testatrix acquired her property or how much she may or may not have contributed to the purchase of same by her deceased husband, or the reasons or motives that led her to make the will of 1910, as it was not being contested had no legitimate bearing upon her mental status when executing the will under contest, which was made five years thereafter. That character of evidence had no legitimate bearing upon the issues of fraud and undue influence in the execution of the will of 1915, yet this evidence was probably prejudicial to the contestee. Smith v. Smith, 174 Ala....

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16 cases
  • Lewis v. Martin
    • United States
    • Supreme Court of Alabama
    • 18 Octubre 1923
    ...... Ala. 623, 627, 22 So. 17; Coghill v. Kennedy, 119. Ala. 641, 656, 24 So. 459; Alexander v. Gibson, 176. Ala. 258, 262, 57 So. 760; Barnett v. Freeman, 197. Ala. 142, 72 So. 395). See, also, Pilcher v. Surles, . 202 Ala. 643, 81 So. 585; B. T. & S. Co. v. Cannon, . 204 Ala. 336, ......
  • Ford Motor Co. v. Hall Auto Co., 6 Div. 227
    • United States
    • Supreme Court of Alabama
    • 30 Marzo 1933
    ......Williams,. 209 Ala. 640, 96 So. 900; Roach v. Olive, 208 Ala. 612, 95 So. 23; Benson Hardware Co. v. Roberts, 202. Ala. 268, 80 So. 106; Barnett v. Freeman, 197 Ala. 142, 72 So. 395. . . We have. carefully considered the evidence and arguments pro and con,. on the special pleas ......
  • Boswell v. Bethea
    • United States
    • Supreme Court of Alabama
    • 29 Enero 1942
    ......v. Hunnicutt, 3. Ala.App. 448, 57 So. 262; Hayes v. Miller, 150 Ala. 621, 43 So. 818, 11 L.R.A.,N.S., 748, 124 Am.St.Rep. 93;. Barnett v. Freeman, 197 Ala. 142, 72 So. 395;. Alabama Fuel & Iron Co. v. Bush, 204 Ala. 658, 86 So. 541; Woodstock Iron Works v. Stockdale, 143 Ala. 550, ......
  • Miller v. Whittington
    • United States
    • Supreme Court of Alabama
    • 30 Mayo 1918
    ...... improper, the parts thereof transcending the rules of. pleading should be stricken on motion. Barnett v. Freeman, 197 Ala. 142, 72 So. 395. . . The. grounds of contest comprised eleven sections, some of them. averring the specific ......
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