Cook v. Cook
| Citation | 396 So.2d 1037 |
| Parties | Gaddis M. COOK v. Sam C. COOK, III. 79-539. |
| Decision Date | 20 February 1981 |
| Court | Supreme Court of Alabama |
G. Houston Howard, II of Howard & Dunn, Wetumpka, for appellant.
Charles W. Gorham of Gorham & King, Birmingham, for appellee.
This is an appeal by the proponent of a will from a judgment in a will contest in favor of the contestant. A jury found that the purported will of Sam C. Cook, Jr., was not his valid last will and testament.
Testator Sam C. Cook, Jr., was born in Elmore County, Alabama, on June 26, 1913. He had three brothers and a half-sister. He was graduated from Howard College in Birmingham with a degree in pharmacy. In May, 1941, he enlisted in the United States Navy. He was married in August, 1941, and his only son, the contestant, was born in June, 1942. He was discharged from the Navy in 1944, and at that time was suffering from dementia praecox, a common form of insanity.
After his discharge from the Navy, testator returned to Elmore County and lived with his parents in the old home-place. Gaddis Cook, one of the testator's brothers and the proponent of this will, returned from service in 1946, and also lived with his parents. In 1947, testator was divorced from his wife and given custody of his son. Thereafter, testator, his parents, the proponent and the contestant lived together in the homeplace. Proponent opened Cook's Drug Store in Montgomery and testator began working for him.
The testator's father died in 1953, and shortly thereafter, testator voluntarily entered the V.A. hospital in Tuscaloosa. After his release from the hospital, testator returned to the homeplace and lived there until 1974, when he began living with the proponent.
In 1959, one Georgia Bailey came to Elmore County, Alabama, and began cooking for the testator. At trial, she claimed to have been the testator's common-law wife, testifying that they had lived together for eighteen years.
The contestant, Sam C. Cook, III, ran away from home in 1959, and began living with his uncle, the proponent. In 1960, the contestant joined the Navy. In the same year, testator's mother died and he was left alone at the homeplace.
After joining the Navy, the contestant never lived in Elmore County again and saw his father, the testator, but twice before his father's death.
In 1974, testator had surgery for a hernia and upon his return from the hospital, lived with the proponent. After one of their relatives died without a will, causing the settlement of the estate to be protracted, testator asked the proponent, who had attended Jones Law School, to draft a will for him. The will provided that a trust of $5,000 be established and that the trustee pay to Georgia Bailey $150 per month from the trust until her death. The will further provided that the contestant would receive the right to cut timber from property located in Wilcox County for a period of five years. Testator left the remainder of his estate to the proponent, his brother.
On April 12, 1979, testator died, and on April 18, 1979, proponent filed a petition in the Probate Court of Elmore County seeking to probate the will of Sam C. Cook, Jr. The probate court set the petition to be heard on May 17, 1979, and on May 10, 1979, Sam C. Cook, III, the contestant, filed a contest to the will alleging as follows: (1) that the deceased lacked testamentary capacity; (2) that the will was not executed in the manner prescribed by law; (3) that the will was procured by undue influence exerted by Gaddis M. Cook and (4) that the will was procured by fraud by Gaddis M. Cook. The contestant demanded a jury trial and that the contest be transferred to the circuit court. The trial was had in the circuit court and the jury returned a verdict finding that the purported will was not the valid last will and testament of Sam C. Cook, Jr.
The proponent-appellant raises several issues on appeal. These issues may be stated as follows:
(1) Whether the circuit court had subject matter jurisdiction over the case, because statutory requirements were not followed;
(2) Whether the trial court committed reversible error when instructing the jury on the issue of a presumption of undue influence;
(3) Whether the trial court erred in allowing the testimony of a psychiatric social worker on the issue of the testator's mental condition;
(4) Whether the trial court erred in refusing to give an affirmative charge on the issue of fraud;
(5) Whether the trial court erred in refusing to allow the proponent to reply to the contestant's opening statement;
(6) Whether the trial court erred in refusing to give proponent's requested charges numbered 27, 14, 4 and the proponent's general affirmative charge on the issue of due execution;
(7) Whether the trial court erred in refusing to allow the Reverend Lee Franklin to give an opinion on the testator's mental condition; and
(8) Whether the trial court erred in refusing to allow the proponent's counsel to infer from the evidence, during closing argument, that Georgia Bailey had a deal with the contestant whereby she would receive more money than the amount bequeathed to her in the will.
We find no prejudicial error, and affirm the judgment entered on the jury verdict.
Proponent first contends that the probate court never transferred the will contest to the circuit court as required by Code 1975, § 43-1-78, and that the circuit court, therefore, never had subject matter jurisdiction over the case. Code 1975, § 43-1-78, requires:
Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made, and must certify all papers and documents pertaining to the contest to the clerk of the circuit court, and the case shall be docketed by the clerk of the circuit court and a special session of said court may be called for the trial of said contest or, said contest may be tried by said circuit court at any special or regular session of said court. The issues must be made up in the circuit court as if the trial were to be had in the probate court, and the trial had in all other respects as trials in other civil cases in the circuit court. An appeal to the supreme court may be taken from the judgment of the circuit court on such contest within 42 days after the entry of such judgment. After a final determination of the contest, the clerk of the circuit court shall certify the transcript of all judgments of the circuit court in such proceedings, together with all of the papers and documents theretofore certified to the circuit court by the probate court, back to the probate court from which they were first certified to the circuit court, and thereafter shall be recorded in the probate court as all other contested wills are recorded in the probate court. (Code 1923, § 10636; Code 1940, T. 61, § 63; Acts 1947, No. 712, p. 552.)
Proponent specifically contends that the appropriate order of transfer was never entered. The only evidence of the transfer is contained in the supplemental record filed in this appeal, which contains a copy of the docket sheet of Proceedings and Orders in the Estate of Sam C. Cook, Jr., which indicates that on May 16, 1979, the case was transferred to the Circuit Court of Elmore County. The issue is essentially whether the docket sheet notation is a sufficient order pursuant to § 43-1-78. To answer the question thus posed, we must examine our procedural rules. Rule 81(a)(5), ARCP, provides that the Rules of Civil Procedure are applicable to the probate court in will contests to the extent that those proceedings are not controlled by statute. Rule 58(c), ARCP, states that "notation of a judgment or order ... in the civil docket ... constitutes the entry of the judgment or order"; therefore, under Rule 58(c) the notation on the probate docket was a sufficient order of transfer to the circuit court as required by § 43-1-78. To hold otherwise would place form over substance at the expense of justice.
Proponent further contends that the papers and documents were never certified to the clerk of the circuit court as required by § 43-1-78. The supplemental record clearly shows that the circuit clerk acknowledged receipt of the papers. The record also contains the circuit court docket sheet which indicates that on May 21, 1979, the file was transferred to the circuit court from the probate court. There is sufficient evidence apparent in the record to show compliance with § 43-1-78. While a more formal order and certification is desirable, the purpose of the statute is met. We can tell when jurisdiction attached in circuit court of the will contest.
Proponent's second contention is that the trial court erred in refusing to instruct the jury that before a presumption of undue influence arises, they must find that the beneficiary is a favored beneficiary. Pruitt v. Pruitt, 343 So.2d 495 (Ala.1976), states:
In other words, evidence must establish: (1) a confidential relationship between a favored beneficiary and testator; (2) that the influence of or for the beneficiary was dominant and controlling in that relationship; and (3) undue activity on the part of the dominant party in procuring the execution of the will. Wilson v. Payton (251 Ala. 411, 37 So.2d 499 (1948)), supra; Alexander v. Alexander, 208 Ala. 291, 94 So. 53 (1922).
The term "favored beneficiary" was defined by that case as:
One who, in the circumstances of the particular case, has been favored over others having equal claim to the testator's bounty. An unnatural discrimination, leading to a natural inference that advantage has been taken by one in position so to do; and shown to have been busy in getting such will executed.
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