Fowler v. Fowler

• Decision Date: 02 May 1974
• Parties: Byron FOWLER et al. v. Syble FOWLER and Vecoy Landers. SC 465.
• Court: Alabama Supreme Court

Page 156

294 So.2d 156

292 Ala. 340

Byron FOWLER et al. v. Syble FOWLER and Vecoy Landers.

SC 465.

Supreme Court of Alabama.

May 2, 1974.

Wayne H. Smith, Heflin, for appellants.

Carl H. Merrill, Heflin, for appellees.

JONES, Justice.

This is an appeal by the proponents of the will of Elizabeth Howle, deceased, from the final decree of the Circuit Court of Cleburne County, which held that the contested will was not the true will of Elizabeth Howle.

The proponents, Byron Fowler, Clara Mitchell and Nell Garrett, filed a Petition for Probate of Howle's will in the Probate Court on February 20, 1973. The contestants, Syble Fowler, and Vecoy Landers, filed a Petition for Removal to the Circuit Court, and the proceedings were duly transferred on April 7, 1973. The contestants alleged mental incapacity, undue influence, and lack of due execution. The jury returned a verdict in favor of the contestants. Hence, the proponents appeal.

The assignments of error raise two points: 1) Did the trial Court err in overruling objections to expert testimony as to mental capacity? 2) Did the trial Court err in overruling the motion for a new trial on the ground that the verdict was against the great weight of the evidence? Finding no error, we affirm.

While a detailed restatement of the facts is not necessary to this appeal, a brief review may aid in understanding the factual context in which the issues arise.

On October 26, 1970, Fowler asked Dr. W. V. Clark, the physician who had been treating the testatrix, to examine Mrs. Howle. As a result, Dr. Clark admitted the testatrix to the hospital on October 27, 1970. On that same day, in proceedings initiated by the proponents, a hearing was held in the Probate Court in which the testatrix was declared to be a person of unsound mind, and Fowler was appointed legal guardian of the testatrix.

In late November or early December, 1970, the testatrix informed her attorney that she wanted to make a will. The attorney prepared the will in accordance with the instructions given to him by the testatrix, and he suggested that 'since a guardian had been appointed, and, because of the family situation, the best thing to do would be to have a doctor attest her will.'

On January 19, 1971, the contested will was executed in the office of Dr. Franklin Mercer following an examination of the testatrix. Dr. Mercer and his nurse were the attesting witnesses to the execution of the contested will. Dr. Mercer had not previously treated the testatrix. In addition to his attestation, Dr. Mercer also signed a note at the end of the contested will that 'the patient here is mentally competent to execute this will.'

The first assignment of error argued by the proponents raises the question of whether the trial Court committed reversible error in overruling the proponents objection to a question propounded to Dr. Clark on direct examination as to whether '. . . having seen (Mrs. Howle) on December 13, 1970, if some thirty or forty days later, in your opinion, she would have been competent to execute a legal document?'

The grounds for the objection were that it called for a mental conclusion and asked about something that occurred subsequent to Dr. Clark's examination of the testatrix. After the objection was overruled, Dr. Clark replied: 'In my opinion, the majority of them go one way, they get gradually worse. Their arteries get harder and they lose their minds--I mean it just gets weaker and weaker.'

While it is well established that a witness cannot give his opinion as to whether a person has testamentary capacity to execute a will, that determination being within the province of the jury (Case v. English, 255 Ala. 555, 52 So.2d 216 (1951)), it is also well established that a verdict cannot be reversed because of improper questions propounded to a witness unless, in response to such questions, improper evidence is elicited and admitted. Meriwether v. Crown Inv. Corp., 289 Ala. 504, 268 So.2d 780 (1972).

It is obvious from Dr. Clark's response, which was in medical terms and which did not abrogate the jury function, that there was no prejudice to the proponents to warrant reversal. Schneider v. Mobile County, 284 Ala. 304, 224 So.2d 657 (1969).

The second assignment of error is that the trial Court erred in overruling the proponents' objection to the following question:

'Dr. Clark, based on your observation and treatment of Mrs. Elizabeth Howle, having seen her on December 13, 1970, and found, in addition to her other ailments, the presence of Parkinson's disease, would you say that Mrs. Howle would have been able to sign that document in the manner that it's signed there?'

The grounds for the objection were that the proper predicate had not been laid to qualify Dr. Clark as a handwriting expert and that he was not qualified to answer that question.

If Dr. Clark had responded as a handwriting expert, there may have been prejudice. Dr. Clark's response, however, was from the vantage of his medical expertise--a physician who had examined and treated the testatrix. He qualified his answer in terms of his medical findings, which response would have been outside the competency of a handwriting expert or a layman. Accordingly, we find no error in the trial Court's ruling on this question.

The third error assigned by the proponents is that the verdict rendered by the jury was contrary to the great weight of the evidence. Before considering the 'scope of review' question raised by the third assignment of error, it may be helpful to resolve who had the burden of proof. Houston v. Grigsby, 217 Ala. 506, 116 So. 686 (1928), provides the answer and stands for the proposition that, where there has been a prior adjudication of insanity of the testator, the burden shifts to the proponents to establish testamentary capacity when the will was made.

In Houston, the will of Irena Grigsby was contested. Four months before the will was executed, Mrs. Grigsby was declared mentally unsound by a jury and a decree in the probate court. She...