Coghill v. Kennedy

• Citation: 119 Ala. 641,24 So. 459
• Parties: COGHILL v. KENNEDY ET AL.
• Decision Date: 08 November 1898
• Court: Supreme Court of Alabama

24 So. 459

119 Ala. 641

COGHILL v. KENNEDY ET AL.

Supreme Court of Alabama

November 8, 1898

Appeal from probate court, Montgomery county; J. B. Gaston, Judge.

Petition by William W. Coghill for the probate of the will of Leonora Kennedy, deceased. Contest by Absalom M. Kennedy and another. There was a judgment for contestants, and the proponent appeals. Reversed.

On the 20th day of February, 1895, the appellant, William W Coghill, filed his petition in the probate court of Montgomery county, asking for the probate of the will of Leonora Kennedy, deceased. Thereupon the husband of said Leonora (A. M. Kennedy) and her sister, Amelia Kershaw, filed their contest. Said Leonora Kennedy was the second wife of A M. Kennedy, and had no children, and no blood relatives outside of the contestant Amelia Kershaw, except some nieces and nephews living outside of this state, who did not participate in this contest. She died in the city of Montgomery on the 12th day of February, 1895. By her will she disposed of an estate worth about $25,000. The will was executed on the 3d day of December, 1894, and a codicil thereto was executed on the 2d day of February, 1895. By these two instruments she gave the life interest in all of her property, except her dwelling house, to her husband, A M. Kennedy, the contestant here. The house she gave to Maggie Coghill, upon condition that she furnish a home therein for A. M. Kennedy and Amelia Kershaw. After the death of A. M Kennedy, she provided an annuity of $25 per month for said Amelia. By the will she made specific bequests as follows $1,000 to her nephew Sandie Beaver; $500 to the First Presbyterian Church of Montgomery; $100 to the Woman's Home of Montgomery; $100 each to Mrs. Henry Booth and Mrs. Kate Joseph; $500 to John Haardt; and an annuity of $5 per month to her servant, Mat Clark. After all these specific bequests and annuities are paid, and Amelia Kershaw and Mat Clark shall have died, and the funeral expenses of the said Amelia shall have been paid, the remainder of the estate of testatrix is bequeathed to Isabella Coghill, sister of said William and Maggie. William Coghill received no bequest by the will, but was made executor without bond. The codicil recites that testatrix since the making of her will has come into possession of a certain storehouse and lot, and said codicil relates exclusively to that storehouse and lot. It is provided thereby that the proceeds shall go to A. M. Kennedy for life; that, after said A. M. Kennedy's death, William Coghill shall enjoy the rents and profits thereof for life, without power of alienation, subject to two charges,-a payment of $50 per year each to the First Presbyterian Church of Montgomery and the Presbyterian Orphans' Home at Talladega. After the death of William Coghill, said property is to go to Mary Ann Coghill, the mother of said William, and his three sisters, Maggie, Isabella, and Lily, subject to the two charges specified above. After the death of all these persons, said property is to go to their heirs, relieved of any charge.

The rulings of the court in the organization of the jury, to which exceptions were reserved, are sufficiently stated in the opinion. Upon the proponent challenging the fifth juror, which is referred to in the opinion, for cause, the court ruled that the mere fact that said juror had expressed an opinion as to the validity of the will was not good ground for challenge, and that the juror was for that reason not incompetent. To this ruling the proponent duly and legally excepted. For answer to the petition asking for the probate of the will, the contestants filed four grounds of contest. The first was that they denied that the paper propounded was the last will and testament of the testatrix, or that it was duly executed by a capable testatrix, or that it was valid as a will. The second was that the testatrix was at the time of the execution of said writing of unsound mind, and incapable of making a will. The third and fourth grounds are substantially stated in the opinion. To the third ground of contest the proponent demurred upon the following grounds: "(1) The said ground of contest is to the probate of the will as an entirety, and avers in the alternative that the execution of the same was obtained by the undue influence of all the beneficiaries, or that it was obtained by undue influence of only a portion of the same. (2) Said ground of contest seeks to vacate and set aside the will as against all of the beneficiaries thereunder, whereas it avers that only some of them exercised the undue influence. (3) Said ground of contest is defective in this: that it alleges that the execution of said will was the result and product of the undue influence of said parties, which is a conclusion of law, and does not aver or state any facts from which the law would presume such undue influence. (4) Said ground of contest is defective in this: that it is sought thereby to prevent the probate of the will as an entirety, and it avers and states that it is the result of the undue influence of only some of the beneficiaries thereunder." To the fourth ground of contest the proponent demurred upon the following grounds: "(1) That the facts stated therein are insufficient in this: that it is not shown thereby that the said parties practiced any fraud or deceit upon the testatrix, or that they wrongfully dominated her will. (2) Said facts are insufficient to justify the refusal of the court to probate said will, in this: that it is sought by the said answer to prevent the probate of the said will as an entirety, whereas it is not shown by the said allegation that all of the beneficiaries participated in the acts therein set out. (3) Said allegations are insufficient in this: that it is not shown by the allegations that all of the beneficiaries furnished instructions for the drawing of the will, furnished or procured the witnesses, and employed a lawyer to draw the same; and the said allegations are filed as objections to the probate of the said will as an entirety. (4) Said allegations are defective in this: that it is not shown thereby that the person or persons furnishing the instructions for the drawing of the will, furnishing or procuring the witnesses, and employing a lawyer to draw the will, occupied any confidential relations with the testatrix. (5) That said allegations are defective in this: that while it is averred therein that some of the beneficiaries furnished instructions for the drawing of the will, furnished or procured the witnesses, and employed a lawyer to draw the will, it is not shown that the beneficiaries occupied any such confidential relations with the testatrix as to justify the drawing of any inference of undue influence therefrom." The court overruled each of the grounds of demurrer to the third and fourth grounds of contest, respectively, and to each of these rulings the proponent duly excepted. The proponent introduced evidence tending to show that the paper offered for probate was the voluntary will of the testatrix, and was duly and legally executed by her. The contestants introduced evidence tending to prove in detail the facts averred in their third and fourth grounds of contest. The evidence on the part of the proponent and the contestants is exceedingly voluminous, and the tendencies thereof are stated sufficiently in the opinion to understand the decision on the present appeal.

During the examination of Mrs. Amelia Kershaw as a witness for the contestants, she testified that on Sunday morning, before the death of the testatrix on Tuesday morning, the latter called for her, and they had a conversation. The witness was then asked by the contestants: "What occurred then? What conversation did you have with Mrs. Kennedy?" The proponent objected to the question on the ground that it was illegal, irrelevant, and incompetent, because a statement by Mrs. Kennedy so long a time after the execution of her will and so short a time before her death, could have no bearing on the issues involved in this case. The court overruled the objection, and admitted the testimony, as stated, for the purpose of showing the state of Mrs. Kennedy's mind. To this ruling the proponent duly excepted. Witness then answered: "On that occasion, on that Sunday morning, when I was called to her bedside, I went there with the greatest haste that I could go, and tried to keep my grief down; to keep from letting her see it. I stood over her every bit of a half an hour, or as long as I could, and she pleading and clinging to me. 'Amelia,' she says, 'all I have on earth is yours.' She says, 'Don't be bothered. I am so afraid they will bother you about that will, as I have been bothered with them.' I said, 'Nora, did you ever know me to bother anybody?' 'No,' she says, 'I don't mean you. Not you, the Coghill family,' she says. 'Put them out of the house,' she says, 'put them out of the house."' This witness further testified: "I recollect the Friday night before the death of my sister. I only recollect seeing Mr. Coghill and the family that night at the house. Mr. Coghill, of course, and all the rest of the family. I mean the Coghill family. There never was anybody else there. I had a talk with Mr. Coghill that night in reference to the will of Mrs. Kennedy. It was in the dining room. He came and flopped himself down in a chair, and there was nobody there. He was sitting down, or half lying down, in the chair. I says to him, 'Mr. Coghill, my sister's will is made, isn't it?' He says, 'Yes.' I says, 'What is it?' He says, 'I know no more about it than you do. No more about it than she has told me.' He said, 'That will was made, and signed and sealed up, and handed to me to put in the bank,' he says. 'And I know nothing about it, only,' he ...