East v. Karter

• Decision Date: 18 October 1928
• Docket Number: 6 Div. 584
• Citation: 218 Ala. 366,118 So. 547
• Parties: EAST v. KARTER.
• Court: Alabama Supreme Court

118 So. 547

218 Ala. 366

EAST v. KARTER.

6 Div. 584

Supreme Court of Alabama

October 18, 1928

Rehearing Denied Nov. 22, 1928

Appeal from Circuit Court, Cullman County; James E. Horton, Judge.

Contest by Ester Beyer East, of the will of J.H. Karter, deceased propounded for probate by Frank A. Karter. Judgment for proponent, and contestant appeals. Affirmed.

Earney Bland, of Cullman, and J.W. Brassell, of Montgomery, for appellant.

Emil Ahlrichs and F.E. St. John, both of Cullman, for appellee.

BOULDIN J.

The alleged will of J.H. Karter, deceased, was contested upon three grounds: Want of execution, mental incapacity, and undue influence.

Amended plea No. 7, alleging that the paper propounded for probate was not the will of the testator, for that since his death some other person had altered the document by removing a part thereof which described and disposed of property not now shown thereby went to the integrity and genuineness of the paper propounded for probate. This was within the general denial of execution of this paper as the testator's will. Evidence of the attesting witnesses and others touching this matter was received without objection. No injury resulted from eliminating this special plea by demurrer.

Plea No. 3, in its first sentence, presented a good ground of contest. A general averment that the will was procured by the undue influence of a named person or persons, is sufficient.

Further averments of the plea rendered it uncertain, either as an attempt to define undue influence, or as setting up in the same plea mental incapacity or want of a testamentary act in signing the document. It was subject to demurrer.

All the grounds of contest were covered by the pleas submitted to the jury in such form as to cast on contestant no higher burden than required by law. In such case adverse rulings on other pleas were harmless.

Attesting witnesses are competent to give an opinion on the soundness of mind of the testator without other qualification as to acquaintance or association with the decedent. Shirley v Ezell, 180 Ala. 352, 60 So. 905; 1 Schouler on Wills, § 232.

Attesting witness Imbusch having stated on cross-examination that certain other properties were mentioned in the will at the time it was read and executed, it was proper on rebuttal to ask him if these other properties were not mentioned at the time as having been transferred by other instruments. So, also, it was proper to ask Father Ignatius, the other subscribing witness: "Has there been any part of it taken out?"

All the details going to the form in which the will was drawn and executed were admissible. That it was sealed in an envelope at the time, which was produced and opened after testator's death, was clearly admissible.

The original will is before us. It consists of one full sheet, four pages of legal cap paper, with a half sheet, two pages, inserted between the folds of the full sheet and attached thereto. The full sheet is written on three pages, running consecutively items 1 to 10. It is signed and attested at the bottom of the first page, and again at the bottom of the last page. It is dated July 14, 1924, at the bottom of the first page, and July 16, 1924, at the bottom of the last page.

The inserted sheet merely directs that a named insurance policy be applied to testator's funeral expenses, doctor bills etc. It is dated July 14, 1924, and is also signed and attested. At each signature the name Anthony J. Karter appears under the word "witness," but in each case this signature is crossed out with ink and the names of Rev. P. Ignatius, O.S.B., and J.G. Imbusch, written...