Curry v. Holmes, 2 Div. 221.

• Decision Date: 31 July 1947
• Docket Number: 2 Div. 221.
• Citation: 249 Ala. 545,32 So.2d 39
• Parties: CURRY et al. v. HOLMES.
• Court: Alabama Supreme Court

32 So.2d 39

249 Ala. 545

CURRY et al. v. HOLMES.

2 Div. 221.

Supreme Court of Alabama

July 31, 1947

Rehearing Denied Oct. 16, 1947.

Appeal from Circuit Court, Perry County; W. E. Callen, Judge.

Clifton C. Johnston, of Marion, for appellants.

Arthur W. Stewart, of Marion and John W. Lapsley of Selma, for appellees.

The following charges were given for contestant:

1. I charge you, gentlemen of the jury, that if the jury believes from the evidence that the will makes an unnatural disposition of the property of the testator, this fact may be taken into consideration, together with or in connection with all evidence in the case, in the determination of the issues involved.

2. The court charges the jury that if the jury is reasonably satisfied after consideration of all the evidence that, at the time of making of the codicil to the will propounded for probate in this case, Elam Parish did not have testamentary capacity to make a will, the verdict must be for the contestant and against the validity of the paper propounded for probate.

3. I charge you, gentlemen of the jury, that an insane delusion is denominated also as partial insanity or monomania and is sufficient to avoid a will if the will is direct offspring and fruit of such insanity, where the manifested prejudice of testator against natural object of his bounty can be explained on no other theory than that of insane delusion.

5. I charge you, gentlemen of the jury, that if you are convinced after consideration of all the evidence in this cause, that Elam Parish's belief that John Holmes had acted in a very undutiful manner to him as set out in the codicil to his will was a fact that did not exist and which no rational person would believe to exist was an insane delusion, then you must find the issue in favor of the contestant, John Holmes.

B. I charge you, gentlemen of the jury, that if you believe after a consideration of all the evidence that Elam Parish was suffering a mental delusion to the effect that John Holmes had been undutiful to him, which was without foundation in fact, then you must find the issue in favor of contestant.

PER CURIAM.

We are of the opinion the case of Maya v. Smith, 239 Ala 470, 196 So. 125, construing the provisions of what are now §§ 750 and 808, Title 7, Code 1940, supports the motion of appellants for a revival against the personal representative or the heirs at law of John Holmes, deceased; and that the instant case is to be differentiated from that of Williams v. Knight, 232 Ala. 206, 167 So. 284, upon which counsel for appellee relies, which authority is referred to and distinguished in the Maya case.

We are, therefore, of the opinion that the motion of appellants should be granted, and that the motion of the appellee to dismiss the appeal should be denied.

It is so ordered.

Motion of appellants granted; motion of appellees denied.

All the justices concur.

On Merits

FOSTER Justice.

This is an appeal from a decree in equity on a contest of a codicil as a part of the will of Elam Parish, deceased. The will and codicil had been probated in the probate court. The contest was filed in equity under Title 61, section 64, Code, by John Holmes, a beneficiary in the will as originally executed, but whose legacy was annulled by the codicil. The contest was tried before a jury as directed by the court under Title 61, section 67, Code, and as demanded by complainant. This was done on March 27, 1945, completed March 28, 1945, when the jury rendered a verdict in favor of the contestant and against the validity of the codicil propounded for probate, and the judge made an entry to that effect upon the docket. On April 5, 1945, respondents filed a motion to set aside the verdict of the jury and grant a new trial, which was set down for hearing on April 25, 1945. On April 8, 1945, complainant died. On April 25, 1945, the court overruled the motion and entered a final decree on the verdict of the jury, vacating and setting aside the codicil as a part of the will. Respondents petitioned this Court for a mandamus directed to the trial judge to vacate said final decree, and the verdict of the jury and dismiss the bill on account of the death of complainant which occurred before the rendition of the final decree on April 25th. We held (Ex parte Curry et al., 248 Ala. 384, 27 So.2d 630) that complainant was entitled to a decree as of the date of the entry on the docket which was before complainant died. Therefore that the final decree though dated April 25th, after complainant died, was not void. While we did not expressly so declare, the completion of the decree on April 25th, being within the thirty day period after it was pronounced and docket entry made, is attributable to the inherent power of the court, as formerly existed during term time. First National Bank v. Garrison, 235 Ala. 687, 180 So. 690; Chilton v. Gurganus, 218 Ala. 145, 117 So. 655. See, Lanier v. Russell, 74 Ala. 364; 49 Corpus Juris Secundum, Judgments, § 118, page 250; Id., § 29, note 17, page 72. The entry of record of the mind or determination of the court was audibly thus expressed, and was the decree of the court rendered on March 28, 1945. Lewis v. Martin, 210 Ala. 401(6), 98 So. 635.

The decree of the court overruling the motion for a new trial first made and entered after the complainant died was void and will not support an appeal, Griffin v. Proctor, 244 Ala. 537(8), 14 So.2d 116; McDonald v. Womack, 214 Ala. 309, 107 So. 812; Martin v. Cothran, 240 Ala. 619, 200 So. 609, nor an assignment of error.

The decree on that motion did not modify the final decree, and therefore an appeal would not be supported by Equity Rule 62, Code 1940, Tit. 7 Appendix, if it were valid. Scott v. Scott, 247 Ala. 266, 24 So.2d 25. But a will contest in equity has been treated differently.

When a will is contested there may be a jury trial in the probate court on application of either party (Title 61, section 52 Code); or upon demand of any party to the contest, the probate judge must transfer the contest to the circuit court (at law, Ex parte Pearson, 241 Ala. 467, 3 So.2d 5), and there tried as in other civil cases (Title 61, section 63, Code): or if not contested in the probate court, it may be contested in equity by an original bill (Title 61, section 64, Code), where a jury trial may be had on the direction of the court (Title 61, section 67). And under this section when a jury is demanded the duty upon the court to submit the issues to a jury is mandatory. Ex parte Colvert, 188 Ala. 650, 65 So. 964. And whether the issue is directed by the court on its own initiative for jury trial or on demand of one of the parties, the equity court acts on a motion for a new trial as in jury trials at law, and on appeal is not controlled by Rule 62, supra, but the ordinary principles pertaining to jury trials at law seem to obtain. Cook v. Morton, 241 Ala. 188, 1 So.2d 890; Lambert v. Foley, 237 Ala. 131, 186 So. 138; Karter v. East, 220 Ala. 511, 125 So. 655; Ex parte Colvert, supra. But if the ruling on the motion is void as here for the reason that complainant was dead when it was first made,...