Burney v. Torrey

• Decision Date: 28 November 1893
• Citation: 14 So. 685,100 Ala. 157
• Parties: BURNEY ET AL. v. TORREY.
• Court: Alabama Supreme Court

14 So. 685

100 Ala. 157

BURNEY ET AL. v. TORREY.

Supreme Court of Alabama

November 28, 1893

Appeal from probate court, Jefferson county; M. T. Porter, Judge.

In the matter of the probate of the will of Samuel Torrey, deceased Henry W. Torrey contested its probate, and, from a judgment declaring the will invalid, the executors appeal. Reversed.

The proceedings in this case arose out of a contest by the appellee of the probate of a paper filed by the appellants purporting to be the last will and testament of Samuel Torrey, deceased. The appeal is taken from a judgment of the probate court declaring that the paper filed was invalid as the last will and testament of Samuel Torrey, deceased, and ordered that the same be refused and rejected by the probate court. By the paper filed for probate the testator bequeathed all of his personal and real property to his wife, Jane E Torrey, and appointed William T. and William W. Burney his executors. The grounds of contest were (1) that the instrument was not legally executed; (2) the want of testamentary capacity; (3) fraud and undue influence. The testimony for the proponent tended to show that at the time of the execution of the will, which was executed in the presence of three witnesses, they each signing in the presence of the others and in the presence of the testator the said Samuel Torrey was of testamentary capacity. The testimony for the contestant was in conflict with that of the proponents, and tended to show that at the time of the execution of the will the said Samuel Torrey was incapable of making a will on account of mental weakness. There was however, no testimony to show that he was unduly influenced by any one. It was shown that William T. Burney was his brother-in-law, and William W. Burney was the son of William T. Burney. It is not deemed necessary to set out in detail the tendencies of all the evidence introduced upon the trial of the cause, the same being so voluminous, and the opinion in this case does not require it. Upon the examination of B. F. Roden as a witness for the proponents he testified that he was one of the subscribing witnesses to the will, and identified the will and the signatures thereto. On the cross-examination of this witness he testified that, after the stroke of paralysis, Samuel Torrey never seemed to be the same strong-minded and good business man that he was before; that he was associated with him constantly, and was in a position to know his mental capacity from such association, and from repeated conversations with him upon different subjects; that he was never able to talk connectedly upon any one particular subject, his mind wandering after talking five or ten minutes; that, in his opinion, he grew weaker, mentally, from time to time. This witness, B. F. Roden, was asked, on cross-examination, the following question: "Did he seem to have his mental faculties about him all the time?" He answered: "The best way I can describe it is, he seemed more like a child." The proponents objected to the answer, "he seemed more like a child," because it was a conclusion of the witness. The court overruled the objection, and the proponents duly excepted. This witness stated the facts upon which he based his opinion, both as to his being like a child and also his not being mentally sound. There was other evidence for the contestant to the effect that Samuel Torrey "was childish" or "seemed childish." Upon the further cross-examination of the said B. F. Roden as a witness he was asked this question: "Did you tell Mr. Lockwood, on 2d avenue, two or three days before the will was made, that Mr. Torrey had become am imbecile?" The proponents objected to the question because it was irrelevant and incompetent, and duly excepted to the court's overruling their objection. The witness answered that he "did not tell Lockwood that Torrey had become an imbecile." The testimony for the contestant tending to show that Samuel Torrey was mentally unsound was based upon the facts which were stated by the several witnesses, showing that it was by intimate association and repeated conversations that they came to their respective conclusions. Upon the examination of one Lockwood as a witness for the contestant he was asked the following question: "Did B. F. Roden meet you on 2d avenue, between 19th and 20th streets, about two or three days before Mr. Torrey made his will, and before he went north?" He answered: "Yes, sir." "Did he or not, at that time and place, tell you that Mr. Torrey had become an imbecile?" The proponents objected to these questions because they were irrelevant, were hearsay evidence, and because they were asked for the purpose of impeaching Mr. Roden. The court overruled the objection, and the proponents excepted. This witness answered: "He said he was an imbecile." The same witness was asked the following question: "Did you, or not, hear Mrs. Torrey say anything about his [Mr. Torrey's] going to the Kimball House to live? If so, what?" Proponents objected to what Mrs. Torrey said, because it was incompetent and irrelevant. The court overruled this objection, and the proponents excepted. The witness answered: "I heard her tell Mr. Torrey he must go down to the Kimball House; that she couldn't live out there [on the Highlands] and attend to his business in town for him." On cross-examination this witness (J. L. Lockwood) testified that he was an uncle of Warren Torrey, the contestant, and that the said Warren Torrey had no other blood relatives in the south except himself and his children. He further testified that in a certain conversation he said he "would give one hundred dollars to know what Mr. Darby would testify in this case." Mr. Darby was Mrs. Torrey's brother-in-law, having married her sister. The contestant then asked the said Lockwood the following question: "Did you have information that Mr. Darby knew important facts in this case?" This question was accompanied by the statement to the court "that the question was asked only for the purpose of explaining why the witness should say he would give one hundred dollars to know what Darby would testify." The proponents objected to the question because it was irrelevant and incompetent and called for hearsay evidence. The court overruled the objection, the proponents excepted, and the witness answered: "I had information that Mr. Darby knew very important facts in this case." All the other facts, and the other rulings of the court upon the evidence, are sufficiently stated in the opinion.

In its general charge to the jury, the court, after instructing them that if they believed the evidence in the case they would find that the paper offered for probate was duly executed according to law, proceeded as follows:

"As to the mental capacity of Samuel Torrey: On the one hand, it does not require dementia or idiocy or a total deprivation of reason to destroy testamentary capacity,-that is, to put a man in such mental condition that he cannot make a will. A man may not be capable mentally of making a will, and yet not be an idiot nor demented nor totally deprived of reason. On the other hand, it is not every impairment of the mind which renders a person incompetent. Mere weakness of intellect is not sufficient to incapacitate. It is not necessary that a man should have all the organs and faculties of his mind complete, in perfect action, to make him capable of making a will. There may be competency to make a will without such capacity as would enable a man to transact the ordinary business of life. Mind and memory may be impaired and enfeebled by age or disease, and yet the testator possess sufficient capacity to make a will. The impairment must extend to a deprivation of the rational faculties, the use and exercise of which are requisite to a proper and intelligent disposition of property. If Samuel Torrey had, at the time of executing the paper purporting to be his will, mind and memory sufficient to recall and remember the property he was about to bequeath, and the object of his bounty, and the disposition which he wished to make, to know and understand the nature and the consequences of the business to be performed, and to discern the simple and obvious relations of its elements to each other, power to collect and retain the elements of the business to be performed for a sufficient time to perceive their obvious relation to each other, then he had a sound and disposing mind and memory.

"As to fraud and undue influence: Undue influence which will vitiate a will is not simply argument or persuasion or an appeal to the affections; but to have that effect it must amount to moral coercion, and in a measure, at least, destroy the free agency of the testator, and make him make a will which he did not want to make. The particular time to which your inquiry must be directed is at the time of the execution of the paper; and this, both as to sanity and undue influence. If Samuel Torrey had capacity to make a will at the time of its execution, then, so far as that issue is concerned, it would be a valid will, whatever may have been the condition of his mind before and after that time; and, if he did not have the capacity to make a will at the time of signing it, then it would not be his will, whatever capacity he may have had before and after; and if undue influence operated upon him at the time of the signing, whether this influence was exerted by a beneficiary or any one else, then it would be valid [invalid,] but, if undue influence did not operate upon him at the time of the signing then, so far as undue influence is concerned, it would be a valid will, whatever may have been the case before and after. Testimony as to his mental condition and influence before and after the time of executing the will

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