Hale v. Cox

Citation163 So. 335,231 Ala. 22
Decision Date27 June 1935
Docket Number7 Div. 334
PartiesHALE et al. v. COX.
CourtSupreme Court of Alabama

Rehearing Denied Oct. 10, 1935

Appeal from Circuit Court, Etowah County; J.H. Disque, Jr., Judge.

Bill in equity by Norma Cox against Della Hale and others, contesting the will of Johnson B. Hale, deceased. From a decree for complainant, respondents appeal.

Affirmed.

Motley & Motley, of Gadsden, for appellants.

Hugh Reed, of Center, and Hood & Murphree, of Gadsden, for appellee.

THOMAS Justice.

The case is that of contest of a will where there was a jury and verdict rendered in the trial of an issue out of chancery after probate.

See reports on former appeals: Cox v. Hale et al., 217 Ala. 46, 114 So. 465; Hale et al. v. Cox, 222 Ala 136, 131 So. 233.

The jury found the issue in favor of the complainant.

On the first appeal, seeming or apparent conflict between items 2 and 4 of the will called for construction, were reconciled and it was held the general devise to the wife and children did not defeat the specific devise to complainant, the daughter of a former marriage. Cox v. Hale et al., 217 Ala. 46, 114 So. 465; Ralls et al. v. Johnson et al., 200 Ala. 178, 75 So. 926.

The question of undue influence--coercion or fraud--as affecting wills, was likewise considered, and the leading authorities collected (Cox v. Hale et al., 217 Ala. 46, 114 So 465; Miller et al. v. Whittington, 202 Ala. 406, 80 So. 499) as to the rules that obtain.

After reversal on the last appeal (Hale et al. v. Cox, 222 Ala. 136, 131 So. 233), respondents amended their answer by setting up that the will bequeathed to complainant the house and lot on Cherry street in the city of Gadsden; that she was in possession thereof at the time of the trial of this contest, and did not offer to return that property to the executrix.

It is urged that such a failure on the part of complainant prevented her successful maintenance of this suit in equity for annulment of said will; and that such a bar to her procedure here by way of estoppel and the kindred equitable rule.

Complainant did not elect to test the sufficiency of such a plea or defense, took issue on the fact, and proceeded to trial under the statute.

The evidence convinces us that the testator had theretofore given the house in question to the daughter; that she so occupied and held the possession and he (the testator) was merely conferring the title by the second paragraph of the will. And requested affirmative instruction refused to defendants was without error under the adverse tendencies of the evidence.

There was no error in allowing the witness Meeks to answer the question propounded to her as a nonexpert, as she had theretofore shown the required intimate acquaintance with the testator which qualified that witness to answer whether or not he was of sound or unsound mind at the time in question. Houston v. Grigsby, 217 Ala. 506, 116 So. 686; Chandler v. Chandler et al., 204 Ala. 164, 85 So. 558.

The witness Jordan was not called upon and did not usurp the province of the jury as to the issues being tried in giving the facts as to testator's physical and mental condition. Councill v. Mayhew, 172 Ala. 295, 55 So. 314; Miller et al. v. Whittington, 202 Ala. 406, 80 So. 499; Chandler v. Chandler et al., supra.

The witness Cardon having died, his former testimony was offered in evidence. He had qualified as an expert with personal knowledge of the facts which he gave in evidence and on which he expressed an opinion, and the right of cross-examination was exercised. The witness stated that he knew the personal relation existing between complainant and her father; that he "never knew of any estrangement between her and her father; *** knew of no ill-will *** nor of any disposition to cut her out of his estate"; that "he was foolish about her and that he so expressed himself." To this evidence there was no objection. Gilbert v. Gilbert, 22 Ala. 529, 58 Am.Dec. 268; Seale v. Chambliss, 35 Ala. 19; Schieffelin v. Schieffelin, 127 Ala. 14, 28 So. 687. The record recites the following in the course of further examination of this witness: "The complainant offered to read the following extract from the testimony of said Cardon in the former trial to which respondents objected, which statement is as follows: 'When he would visit my father before his death and at the death of my father and even after Mr. Hale married his present widow, he told me that he was going to see that Norma was well taken care of and provided for and said folks think that I won't, but he says I am going to see that Norma is well taken care of and provided for.' The respondents objected to this statement and moved to exclude this statement of the witness Cardon on the grounds that it was not a part of the res gestae that the statement was too remote and that it was irrelevant, immaterial and incompetent. The Court overruled the respondents' objection to this testimony and their motion to exclude the same, and the respondents then and there duly excepted."

In this action of the court there was no reversible error. The matter given was not too remote. Coghill v. Kennedy, 119 Ala. 641, 663, 24 So. 459; Schieffelin v. Schieffelin, supra; Bunyard and Wife v. McElroy, Ex'r, 21 Ala. 311; 79 A.L.R. 1473, 1485, note.

To like effect was the overruling of objection to the question propounded to Mr. LeCroy, the justice of the peace who took acknowledgments to documents by the testator and his wife.

Complainant's evidence (on cross-examination) was that the father gave her a deed to the house when she married, several years before the execution of the will, and that she had been placed in possession thereof, so held and claimed to and at the time of the trial. There was no reversible error in declining the question: "You didn't offer this house and lot that was given you in the will back to the administratrix, or the executrix, rather Mrs. Hale, and offer to pay the rent you had received back before you brought this suit, did you? The complainant objected to this question; the Court sustained the objection, and the respondents then and there duly excepted." The question assumed the house was given to her under the will. Witness had stated the facts, and her failure to offer this house to Mrs. Hale was beside the issue of the contest being tried. This gift was not made and consummated under the will; but several years before, as the evidence clearly shows. Harris v. Kyle, 203 Ala. 36, 81 So. 826; Steele et al. v. Steele's Adm'r, 64 Ala. 438, 461, 38 Am.Rep. 15; Woodcock and Wife v. McDonald, 30 Ala. 411; 72 A.L.R. 1136, note.

The witness Thornton, having testified for respondents and stated the physical and mental condition of the testator, and that he was going to make certain provision for contestant (his daughter by his second wife), it was proper on cross-examination to call for statements made by that witness as to what testator said to witness at the time and place indicated; as to his declared personal relations between complainant, testator, and respondent wife and stepmother. This was a proper office of cross-examination for the purpose of showing interest or for a predicate for impeachment. Whitsett et al. v. Belue et al., 172 Ala. 256, 54 So. 677.

That witness having answered in the negative, there was no error in allowing the witness Batson to detail the contradictory or impeaching statements in respect to the predicate indicated above. Hanye v. State, 211 Ala. 555, 101 So. 108; Williams v. Alabama Fuel & Iron Co., 212 Ala. 159, 102 So. 136; Malloy v. State, 209 Ala. 219, 96 So. 57.

Moreover, under the issue of undue influence on the part of Mrs. Hale in procuring execution of the will, the conduct and feeling of Mrs. Hale toward contestant, and the domination and control of testator were circumstances for the consideration of the jury. Cox v. Hale et al., 217 Ala. 46, 117 So. 465; Posey et al. v. Donaldson, 189 Ala. 366, 66 So. 662.

The oral charge of the court followed the announcements of this court on former appeals, which clearly stated the rule applicable to the facts under the issues submitted. Cox v. Hale et al., 217 Ala. 46, 117 So. 465; Id., 222 Ala. 136, 131 So. 233.

When refused charges touching the rule of testamentary capacity are considered with the oral charge and given charges 7, 8, 9, and D, no reversible error intervened by the refusal of charge 4.

The rules of testamentary capacity (Chandler v. Chandler et...

To continue reading

Request your trial
8 cases
  • Turcotte v. Trevino, 661
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • September 24, 1973
    ...v. Hartford, 104 Me. 566, 72 A. 745; Watson v. Watson, 128 Mass. 152; McClure v. Wade, 34 Tenn.App. 154, 235 S.W.2d 835; Hale v . Cox, 231 Ala. 22, 163 So. 335; In re Bremer's Estate, 141 Neb. 251, 3 N.W.2d 411; In re, Covington's Will, 252 N.C. 546, 114 S.E.2d 257; Blatt v. Blatt, 79 Colo.......
  • Whitt v. Forbes, 8 Div. 685
    • United States
    • Supreme Court of Alabama
    • February 26, 1953
    ...in Reynolds v. Massey, supra. We hold, therefore, that the trial court did not err to a reversal in refusing charge 27. In Hale v. Cox, 231 Ala. 22, 163 So. 335, we held that charges in the language of charges 39 and 40, requested by proponents in this case but refused by the trial court, w......
  • Fillman v. State
    • United States
    • Alabama Court of Appeals
    • November 29, 1960
    ...'sick,' 'angry,' 'afraid,' 'healthy,' and the like. See also Hall v. State, 216 Ala. 336, 113 So. 64. To which might be added Hale v. Cox, 231 Ala. 22, 163 So. 335; Councill v. Mayhew, 172 Ala. 295, 55 So. 314; Parrish v. State, 139 Ala. 16, 36 So. 1012, and Deloney v. State, 225 Ala. 65, 1......
  • Tucker v. Tucker, 5 Div. 413.
    • United States
    • Supreme Court of Alabama
    • December 5, 1946
    ......Tucker, long a resident of Chambers County, Alabama, died. on August 7, 1945, seized and possessed of an estate valued. at more than $250,000, ...Mayhew, supra;. Batson v. Batson, 217 Ala. 450, 117 So. 10; Hale. v. Cox, 231 Ala. 22, 163 So. 335. The case of Towles. v. Pettus, 244 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT