Councill v. Mayhew

• Decision Date: 20 April 1911
• Citation: 172 Ala. 295,55 So. 314
• Parties: COUNCILL v. MAYHEW.
• Court: Alabama Supreme Court

55 So. 314

172 Ala. 295

COUNCILL v. MAYHEW.

Supreme Court of Alabama

April 20, 1911

Appeal from Probate Court, Madison County; W. T. Lawler, Judge.

S. J Mayhew propounded for probate a will, which was contested by William L. Councill. From a judgment admitting the will to probate, the contestant appeals. Reversed and remanded.

The facts and the exceptions to evidence sufficiently appear from the opinion.

The following charges were given for the proponent:

(1) "I charge you, gentlemen of the jury, that if the testator, William H. Councill, had mind and memory sufficient to understand the business he was engaged in, to remember the property he was about to bequeath, and the object of his bounty, and the manner in which he wished to dispose of it he was not lacking in testamentary capacity."

(13) "The fact that W. H. Councill may have been afflicted with disease, and it may be admitted, for the sake of argument, that his mind was impaired at the time of the execution of the will and the codicil, if the jury believe from the evidence that he had the mental capacity to attend to the ordinary duties of life, that he had the mind to remember his relatives and the objects of his bounty, and that his mind was sufficiently strong to know how he wanted to dispose of his property, and no undue influence was exercised over him, the will should stand."

(2) "I charge you, gentlemen of the jury, that testamentary capacity does not imply a mind wholly unimpaired, and undue influence, to defeat a will, must overpower the will of the testator and substitute that of another for it."

(8) "Gentlemen, in order to set aside the will of a person of a sound mind for having been obtained by undue influence it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by such influences; but it must be shown that they were inconsistent with a contrary hypothesis, and the undue influence must be exercised in relation to the will itself."

(10) "I charge you, gentlemen of the jury, a person of testamentary capacity, and which the law presumes every one to possess, has the right to make unequal gifts of his property, if he sees proper so to do by testamentary disposition; and the fact that he does so does not of itself establish or authorize the inference that the donor is of unsound mind, or that the gift was the result of fraud or undue influence. In cases of wills, other evidence is necessary to justify such conclusion."

(11) "I charge you, gentlemen of the jury, that testamentary capacity does not imply a mind wholly unimpaired; and undue influence, to defeat a will, must overpower the will of the testator, must amount to coercion or fraud, and must be tantamount to force or fear, and thus destroy the free agency of the testator."

(12) "Where a will is shown to be the result of undue influence only as to part of the instrument or its provisions, it is not wholly void. In such case, it would be set aside in part and sustained as to the remainder."

(3) "I charge you, gentlemen of the jury, the presumption is indulged by the law that every person of full age has testamentary capacity."

(4) "I charge you, gentlemen of the jury, that the burden is upon the contestant to show mental incapacity at the time the will was executed."

(5) "I charge you, gentlemen of the jury, that an unequal or unnatural disposition of property by the testator among the next of kin or heirs raises no presumption as to mental incapacity."

(6) "I charge you, gentlemen of the jury, the undue influence necessary to overturn a testamentary disposition of property must be of such character as to overpower the will of the testator and substitute another will in its stead. The influence of affection or desire to gratify the wishes of another is not sufficient for that purpose. It must be shown to amount to force and coercion, destroying the free agency of the testator."

(7) Set out in the opinion.

(9) "I charge you, gentlemen of the jury, that affection or desire to gratify another's wishes is not that sort of coercion which defeats attempted testamentary disposition. All the better instincts and emotions are left in full play and are harmless, unless the will itself--the power of independent action--is overcome."

The following charges were refused to contestant:

(2) "In order for Councill to make a will, he must have been able to remember his property, and if you believe that he included in the will property which he had previously conveyed by deed to Ida Councill, you will consider this circumstance in connection with other evidence in determining whether he had a disposing memory."

(3) "You are authorized to consider, in connection with all the evidence and circumstances in the case, the fact, if it be a fact, that Councill's salary, after April, 1908, was paid to his wife."

Paul Speake, for appellant.

David A. Grayson, for appellee.

SOMERVILLE J.

The appellee, S. J. Mayhew, as executor, propounded for probate the will of Wm. H. Councill, and the appellant, Wm. Councill, a son of the testator, contested the proponent's petition on several grounds--the material ones for the purposes of this appeal being (1) that the testator was of unsound mind and lacking in testamentary capacity; (2) that he was so weak and feeble mentally as to be easily influenced, and that he was unduly influenced in the execution of the will by Mrs. C. B. L. Hamilton, his private secretary, who stood in confidential relations to him, and who witnessed the will and was a beneficiary under it; and (3) that the execution of the will was procured by the fraud of said Mrs. C. B. L. Hamilton.

The will was executed on March 16, 1907, and a codicil was added on April 6, 1908. The probate of the codicil is contested on the ground that the testator was not then of sound mind and disposing memory.

The record purports to set out all the evidence, and this evidence is strongly conflicting on the question of the decedent's testamentary capacity. On the question of undue influence, there is some evidence tending to show confidence reposed by the testator in his private secretary, Mrs. Hamilton, and the acquisition by her of more or less influence over his mind and sentiments, and of opportunity on her part for the undue exercise of such influence over him in the execution of the will. There are 32 assignments of error shown by the record, of which we shall consider only those discussed in his brief by counsel for appellant.

1. Dr. Sterrs, a witness for contestant, testified that he had known the testator intimately for 20 years, and had treated him professionally in the years 1905, 1906, and 1907. After detailing particular instances of mental weakness, mind wandering, emotional excitability, and delusions, the witness testified that in his opinion the testator was not of sound mind at any time during the year 1907, or until his death, which occurred on April 17, 1909, and that "he was not capable of attending to any business matter requiring mental concentration." On cross-examination, a number of documents, purporting to be copies of letters written to various public officials, and including a draft of a bill intended to be passed by the Legislature, all bearing date of January, 1907, and relating to the matter of state aid to the negro school of which testator was the president, were shown to the witness, after which he was asked to "state whether or not those letters are the product of a sound or unsound mind." Contestant objected to the question on several grounds, viz.: (1) That the answer would be immaterial; (2) that it would be a conclusion of the witness; (3) that the original letters were not produced; and (4) that it was not shown that they were written or dictated by the testator. Upon the statement by proponent's counsel that he would meet the last objection by proper proof later on, the court overruled the objections, and the witness answered: "Considering the letters by themselves, without taking into consideration by whom they were written, or any other knowledge I might have as to the writer, I would say they were the product of a sound mind."

At a subsequent stage of the trial, proponent's witness, Mrs. Hamilton, testified that the documents above referred to were carbon copies of the originals, the contents of which were dictated to her by the testator on the days of their several dates. As thus used, these documents simply presented to the view of the witness certain alleged mental operations of the testator, and it was immaterial, for this purpose, that the original letters, as signed by the testator, were not produced nor accounted for. If the testator dictated the contents of the letters, his words thus spoken might be placed before the witness in any way intelligible to him. The answer called for would, perhaps, be objectionable on direct examination, as being a mere opinion upon a matter as to which the jury are as competent to reach a conclusion as an expert witness. But we need not decide as to that. The question was asked on the cross-examination of an expert witness, who had testified to the insanity of the testator during the two or three years preceding his death, and his inability to attend "to any business matter requiring mental concentration." It was plainly no more than an inquiry whether the witness, who professed knowledge of insanity in general, and of the testator's mental condition in particular, regarded such mental operations as those shown by the letters as indicative of a sound mind; and we think neither the question nor the answer transgressed the proprieties of cross-examination.

2. Referring to the legislative bill, proponent's counsel on cross-examination...