Harris v. Harris

• Decision Date: 17 April 1924
• Docket Number: 8 Div. 606.
• Citation: 211 Ala. 144,99 So. 913
• Parties: HARRIS v. HARRIS ET AL.
• Court: Alabama Supreme Court

99 So. 913

211 Ala. 144

HARRIS v. HARRIS ET AL.

8 Div. 606.

Supreme Court of Alabama

April 17, 1924

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

Bill in equity by R. N. Harris, Sr., against R. N. Harris, Jr., and others. From a decree denying relief, complainant appeals. Affirmed.

Callahan & Harris, of Decatur, for appellant.

Kirk &amp Rather, of Tuscumbia, for appellees.

BOULDIN J.

The bill was filed by R. N. Harris, Sr., to annul and vacate for fraud a decree of the probate court denying the probate of the will of Mary H. Sherrod, deceased. The case was before us on appeal from decree on demurrer to the bill. The substance of the bill appears in the report of the case. Harris v Harris, 208 Ala. 20, 93 So. 841. We sustained the equity of the bill. Answers were filed by the defendants, heirs at law, denying the several averments on which the right to relief depends. The present appeal is from a final decree on pleadings and proof dismissing the bill.

This brings under review the facts of the case. The record is voluminous, and we seek to set forth only such findings or conclusions of fact as lead to the proper conclusion on the whole case.

Mary H. Sherrod left surviving, as her heirs at law, one brother, R. N. Harris, Sr., two sisters, Mrs. Lucy Brewer and Mrs. Susan Comegys, two nieces, daughters of Ida Allison, a deceased sister, and eight nephews and nieces, children of A. J. Harris, a deceased brother. Mary H. Sherrod left an instrument in writing, duly signed and witnessed, purporting to be her will. The devises and bequests under the will were: To her brother, R. N. Harris, Sr., her one-half interest in a plantation known as the "Lile Place," owned jointly with the decedent; to Miss Lucile Banks, $5,000; to Miss Mary Gibson, $300; to Johnie Smith, colored, $300; and the residue of the estate to all her heirs, share and share alike, under the laws of descent and distribution. R. N. Harris, Sr., was named as executor. He employed counsel and proceeded to propound the will for probate in the probate court of Lawrence county.

R. N. Harris, Jr., a nephew, filed a contest on the grounds of mental incapacity and undue influence. The persons charged with undue influence were not then named. Pending the contest R. N. Harris, Sr., was appointed special administrator. Several members of the family became actively interested. The validity of the will and also deeds of conveyance made theretofore, among them a deed to Mrs. Argie Bowles involving a valuable tract of land, were all brought in question.

Mrs. Lucy Brewer resided in New Orleans. A correspondence between her son, Joseph Brewer, and R. N. Harris, Sr., ensued. Mrs. Brewer thus expressed a purpose to be guided by her brother. Mrs. Susan Comegys, residing at Knoxville, Tenn., came to see him. On May 13th he, with George and Ed Comegys, her sons, in conference with counsel in Decatur, decided the effort to probate the will should be abandoned and action be taken to set aside the deed of Argie Bowles. This suit was brought in the name of James F. Harris, a nephew. On the same date R. N. Harris, Sr., wrote Joe Brewer:

"We decided to have deed set aside, and to take steps to have deed to four hundred acres of land given by Sister Mary to Mrs. Bowles set aside."

On May 24th he addressed a letter to each of the heirs and legatees as follows:

"The alleged last will of my sister Mary H. Sherrod, was songiedn ber [consigned per] her direction to my custody. The duties of the trust thus reposed and the law of Alabama, required me to surrender the same to the probate court of Lawrence county, Alabama, after her death, which I did. Although I was a large beneficiary under said alleged will I am constrained to drop these proceedings and you may take such action in the premises as you may be advised. You doubtless are aware of my reasons or some of them. Suffice it to say that I have no ulterior motive whatever, and contemplate no side line or side issue. It is not my present intention to dismiss the proceedings, so you should be alert to protect whatever interest you may consider that you have in the premises by employment of lawyers of your own selection, as my lawyer will offer no evidence whatever in support of said alleged will. The hearing is at Moulton, Alabama, June 14th, 1920. You are named as one of the beneficiaries. If you care to hear my reasons in detail for the above attitude, you may be enlightened by my testimony, if the court will admit it on the trial of the contest by my nephew, R. N. Harris, which is still pending, and which will be heard on the above date."

In a letter to Joe Brewer, May 28, 1920, he again wrote: "*** I believe at the time she made her last will she was not compitent [competent] as proof of it her leaving Miss Banks a legacy of $5,000.00 One who had no blood ties and a lady of 35 or 40 years of age who had never visited my sister 1/2 doz. times in her life and two of those visits within a few months of my Sister death but for this proof of incompitancy [incompetency] I would certainly have defended the will. ***"

Meantime an agreement was drawn in New Orleans to be executed between R. N. Harris, Sr., and Thomas Harris, a nephew, as follows:

"That whereas, both parties hereto are of the opinion that certain deeds given by Mrs. Mary Harris Sherrod during her lifetime to various persons whereby Mrs. Mary Harris Sherrod conveyed, alienated and transferred certain lands and property to third persons and among others a certain store building and lot or parcel of ground in the town of Courtland, state of Alabama, to Thomas Harris and certain deeds to Mrs. Argie Cortner Boles should be set aside and avoided because of the mental and physical condition of Mrs. Mary Harris Sherrod for many years prior to her death;

"And whereas, both parties hereto are of the opinion that a certain last will and testament made or purported to have been made by Mrs. Mary Harris Sherrod should be refused probate and declared null and void because of the mental and physical condition of said Mrs. Mary Sherrod at the time of the making of said will and long prior thereto:

"It is hereby agreed and stipulated that Thomas Harris agrees and binds himself to deed back or transfer to the estate of Mrs. Mary Harris Sherrod the said store building and lot or parcel of ground in the town of Courtland, state of Alabama, for and in consideration of the said Mr. Richard N. Harris, Sr., declining and refusing to accept any legacy or legacies of any kind or nature whatsoever left or purported to have been left to him in said will and for and in consideration of the said Mr. Richard N. Harris, Sr., filing suit either individually or jointly with the other heirs or heir of the late Mrs. Mary Harris Sherrod to set aside said last will and testament and cause said last will and testament to be refused probate.

"It is further agreed and stipulated that for and in consideration of the foregoing agreement on the part of Thomas Harris that Mr. Richard N. Harris agrees to join in an action in law or equity to set aside the alleged last will and testament of his sister, Mrs. Mary Harris Sherrod, and to set aside any deeds, transfer or conveyances of property of any kind or nature by such action or actions as may be necessary in law or in equity any acts or [of] any nature or kind whatsoever whereby the said Mrs. Mary Harris Sherrod or the late Harris Sherrod conveyed, transferred or delivered any property, rights, interests or reversions or remainders to third person and that both parties hereto agree that all of the property belonging or formerly belonging to the said Mrs. Mary Harris Sherrod or the late Harris Sherrod should be restored to the estate of Mrs. Mary Harris Sherrod and said estate settled in pursuance to law and equity as in the case of an intestate succession."

R. N. Harris, Sr., added the following:

"In event the will is not probated the above agreement is to be effective."

Thus modified, it was fully executed and forwarded to Joseph Brewer with letter of July 9th. This added clause, construed in connection with the agreement as a whole, refers to the property rights of the parties to be affected thereby, and not to the presently operative provisions touching their attitude toward the will contest and suit against Argie Bowles.

Meantime Lucile Banks and Johnie Smith had intervened as legatees, and taken up the tight to probate the will.

The trial came on July 28th, lasted 10 days, and resulted in a mistrial....