Bennett v. Bennett

• Citation: 454 So.2d 535
• Parties: Ernest BENNETT v. Pernell BENNETT, et al. 82-1056.
• Decision Date: 13 July 1984
• Court: Supreme Court of Alabama

Page 535

454 So.2d 535

Ernest BENNETT v. Pernell BENNETT, et al.

82-1056.

Supreme Court of Alabama.

July 13, 1984.

William E. Cassady, Camden, for appellant.

Wyman O. Gilmore of Gilmore & Gilmore, Grove Hill, for appellees.

ADAMS, Justice.

This is an appeal from a judgment entered as the result of a jury verdict by the Circuit Court of Wilcox County in a will contest. The will of Delie Bennett was first filed in the probate court of Wilcox County by a grandson, Ernest Bennett, one of the beneficiaries of the will. The other beneficiaries are a daughter and four grandchildren. The will offered for probate was allegedly executed on October 11, 1974. After the will was offered, nine children of the deceased filed a contest and asked that the contest be tried in circuit court. The proceedings were duly removed to circuit court and on March 1, 1983, a verdict was rendered in favor of the contestants. Proponents then made a motion for a judgment notwithstanding the verdict or for a new trial, which was denied by operation of Rule 59.1, A.R.Civ.P. The contestants claim that Delie Bennett's will was invalid for two reasons: 1) she was not of sound mind at the time of the alleged execution of the will; and 2) the will offered for probate was not in fact signed by Delie Bennett. Proponents contended that although their mother was of unsound mind, she was still able to sign her name. The will offered for probate was executed by a mark.

In his attempt to reverse the judgment of the circuit court, Ernest Bennett, one of the proponents, contends that the court erred in several respects. His first claim of error is that the trial court abused its discretion in not allowing the testimony of the two attesting witnesses as to the soundness of the deceased's mind at the time of the execution of the will. Second, he claims that the court improperly refused to allow into evidence a prior will of Delie Bennett, dated March 13, 1957, which showed a fixed determination on the deceased's part, expressed by her over a number of years, to leave her property as she did in the will offered for probate. He says, further, that this will was proof that she was signing her name by mark as early as 1957. The contestants had been unanimous in their testimony that the deceased had a handwritten signature. Third, the appellant claims that the court mistakenly refused to allow the proponents to question the contestants as to their financial condition. He claims that such testimony was admissible to prove motive or intent on her part to leave property to her less fortunate relatives. Fourth, the appellant claims that the trial court erred in giving this jury charge:

If you are reasonably satisfied from the evidence that the testator suffered from habitual, fixed or permanent insanity as distinguished from spasmodic or temporary insanity prior to executing the will, the burden is then on the proponent to reasonably satisfy you from the evidence that the will was executed during a lucid interval....

The appellant claims this charge was error because there was not even a scintilla of evidence that the testatrix suffered from "habitual," "fixed," or "permanent" insanity.

In response to the above claims made by the proponent, the contestants argue that the court did not err as claimed above, but that if it did, the error was harmless and not prejudicial to the proponents in any way. Citing Nottage v. Jones, 388 So.2d 923 (Ala.1980), Linnard v. Shields, 368 So.2d 14 (Ala.1979), and Fletcher v. DeLoach, 360 So.2d 316 (Ala.1978), they contend that in cases of this nature, the verdict of the jury will not be overturned unless shown to be clearly and palpably wrong. Furthermore, the trial court's refusal to grant the proponents' motion for judgment notwithstanding the verdict or a new trial only goes to strengthen of the verdict and the judgment rendered thereon. Although we are of the opinion that each error, if taken singularly, may not have been, under the facts of this case, sufficient to overturn the jury's verdict, the combination of these errors was sufficient to seriously infect the factfinding process in this litigation. We reverse and remand for a new trial.

Proponent's strongest argument for reversal lies in the failure of the trial judge to allow the attesting witnesses to the will to give their opinion as to the soundness of the mind of Delie Bennett. The court stated that it would not allow this testimony because these witnesses could not say that they knew Delie Bennett before the execution date of the will, or since. One of the subscribing witnesses was a lawyer. The will was allegedly signed in his office. He did testify that the lady he prepared the will for identified herself as Delie Bennett; that she brought with her a prior will, executed by Delie Bennett; and that she had with her a deed conveying to Delie Bennett property located in Gees Bend. Although ordinarily the trial court is allowed a wide discretion in determining what witnesses will be allowed to testify to, based on opportunity to observe, physical capacity, and other factors, this court has carved out an exception as to attesting witnesses in will probate cases. This court judicially knows that a substantial number of wills in this state are drafted and executed in lawyers' offices and are attested to by them and members of their staff, although they may never have seen the client before or after the will was drawn and executed. Such persons are competent in this state to testify as to the soundness of mind of the testator without further qualification. Speaking for this court in 1951, Mr. Justice Simpson wrote:

Attesting witnesses to a will...