Harris v. Harris, 8 Div. 466.

CourtSupreme Court of Alabama
Writing for the CourtSAYRE, J.
Citation208 Ala. 20,93 So. 841
PartiesHARRIS v. HARRIS ET AL.
Decision Date22 June 1922
Docket Number8 Div. 466.

93 So. 841

208 Ala. 20

HARRIS
v.
HARRIS ET AL.

8 Div. 466.

Supreme Court of Alabama

June 22, 1922


Appeal from Circuit Court, Lawrence County; Robert C. Brickell, Judge.

Bill by R. N. Harris against R. N. Harris, Jr., and others to set aside a judgment of the probate court. From a decree sustaining demurrer to the bill, complainant appeals. Reversed and remanded.

A devisee was not precluded from seeking cancellation of judgment of probate court denying probate of will, on the ground that it was procured pursuant to fraudulent agreement between proponents and contestants, by failure to avail himself of his remedy under the four months' statute, Code 1907, § 5372, since such remedy is cumulative and concurrent, and not exclusive of equity jurisdiction.

The bill alleges that Mary H. Sherrod, a sister of complainant, R. N. Harris, and an aunt of defendant, R. N. Harris, Jr., died in March, 1920, leaving a last will and testament in and by which complainant was named as executor and bequeathed valuable lands; that in April, 1920, complainant employed an attorney who filed said will for probate; that hearing thereon was set for May 6, 1920; and that defendant filed a contest of the will, which was set for hearing June 14, 1920.

It is further alleged that in the meantime bills in equity had been filed in the circuit court of Lawrence county seeking to set aside and cancel certain deeds executed by Mary H. Sherrod during the last 10 years of her life, on the ground that she was mentally incompetent; that said bills were filed by J. J. Harris, a brother of defendant, but were in reality in behalf of all the heirs of Mary H. Sherrod; and that, excepting complainant, there was a general agreement between the heirs that the cost of the litigation should be apportioned among them; that subsequently the defendant filed a cross-bill in one, if not both, of the suits, seeking the same relief; that the various heirs of Mary H. Sherrod became intensely active in the prosecution of such litigation; and that some [93 So. 842] of them made alluring suggestions to complainant that if the petition for probate of the will was not prosecuted and Mary H. Sherrod was held by the court to be of unsound mind, it would be to complainant's best interest; and that one Comegys, representing the interest of Susan Comegys (a sister of Mary H. Sherrod), and acting in concert with defendant R. N. Harris, Jr., J. J. Harris, the complainant in said suits in equity, and other heirs of Mary H. Sherrod, approached complainant and undertook to persuade him to cease his activities in the prosecution of said will for probate and to testify in the pending litigation that said Mary H. Sherrod was a person of unsound mind; that complainant stated to said Comegys that he knew the testatrix was not of unsound mind and that he could not and would not so testify, but that he was willing to submit the question to a jury, whereupon complainant released his attorney upon the expectation that the probate of said will would depend upon the verdict of a jury upon the question of her mental capacity to make a will.

It is further alleged that on to wit, July 23, 1920, Lucile Banks and Johnnie Smith, legatees named in the will, intervened as proponents of the will; that the contest was had between said proponents and the defendant, which, after a desperate trial before a jury on or about July 28, 1920, resulted in a mistrial; that complainant was present in court during the contest and that it was not charged by any one that the execution of the will was brought about by any undue influence exerted by complainant upon Mary H. Sherrod.

The bill further alleges that after said mistrial and following continuances the contest was set for hearing for November 29, 1920; that complainant had notice of such hearing, but that two or three days prior thereto he was taken sick at his home several miles in the country distant from the county seat, and was unable to attend the trial; that defendant had often manifested, publicly, and privately, the greatest enmity for complainant, and that, ascertaining that complainant was not in court on the day of the hearing on the contest, defendant, for the purpose of defrauding complainant and for the purpose of bringing about a fraudulent judgment of the court, entered into a collusive agreement with the intervening proponents of the will, whereby defendant agreed to pay and did pay to said Johnnie Smith all or substantially all of the legacy left to him, and agreed to pay and did pay to said Lucile Banks a large part of the legacy left to her, taking unto himself a transfer of the interests of said intervening proponents under said will; that the grounds of contest upon which the trial was had in July were stricken and a new ground of contest was filed wherein it was charged that the execution of said will was brought about by undue influence exerted upon Mary H. Sherrod by complainant, and that a written stipulation was entered into whereby it was agreed that the judgment to be rendered by the probate court should not be used as evidence in the pending proceedings to cancel deeds made by Mary H. Sherrod; that the parties agreed upon and prepared in advance of the hearing on the contest the following judgment of the court:

"R N. Harris, Sr., Proponent. Miss Lucile Banks and Johnnie Smith, Interveners. In the Probate Court of Lawrence County, Alabama. Nov. 30, 1920
"This cause coming on to be heard on this day as provided in the former continuance in this cause, came the parties by their attorneys, and a jury being impaneled to try the issue:
"Thereupon, contestant amends
...

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13 practice notes
  • Batson v. State, 6 Div. 798
    • United States
    • Supreme Court of Alabama
    • 26 mei 1927
    ...of equity jurisdictions. Ingram v. Ala. Power Co., 201 Ala. 13, 75 So. 304; Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Harris v. Harris, 208 Ala. 20, 93 So. 841. And the statute, section 9518 of the Code, as observed by the codification thereof, is but the statement "of case law on the sub......
  • Bolden v. Sloss-Sheffield Steel & Iron Co., 6 Div. 407
    • United States
    • Alabama Supreme Court
    • 18 juni 1925
    ...Dev. Co. v. Hill, 194 Ala. 537, 69 So. 948; Id., 188 Ala. 667, 65 So. 988; Danne v. Stroecker, 210 Ala. 483, 98 So. 479; Harris v. Harris, 208 Ala. 20, 93 So. 841; Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Nixon v. Clear Creek Co., 150 Ala. 604, 43 So. 805, 9 L.R.A. (N.S.) 1255; McDonald ......
  • Sterling Oil of Oklahoma, Inc. v. Pack, X--1
    • United States
    • Supreme Court of Alabama
    • 15 november 1973
    ...applied contrary to the rules of equity jurisprudence. 30 C.J.S. Equity § 98. This court recognized such limitation in Harris v. Harris, 208 Ala. 20, 93 So. 841, where is found an extensive quotation from the Wisconsin court in Clemens v. Clemens, 28 Wis. 637, 9 Am.Rep. 520, and as appropri......
  • Van Antwerp v. Van Antwerp, 1 Div. 158
    • United States
    • Supreme Court of Alabama
    • 18 december 1941
    ...subsisting between the parties and arising out of the transaction." Foster v. Winchester, 92 Ala. 497, 9 So. 83; Harris v. Harris, 208 Ala. 20, 93 So. 841. See Article by Hon. Horace Stringfellow in July, 1940, issue of "The Alabama Lawyer", pages 248 et seq. on this subject. This bill does......
  • Request a trial to view additional results
13 cases
  • Batson v. State, 6 Div. 798
    • United States
    • Supreme Court of Alabama
    • 26 mei 1927
    ...of equity jurisdictions. Ingram v. Ala. Power Co., 201 Ala. 13, 75 So. 304; Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Harris v. Harris, 208 Ala. 20, 93 So. 841. And the statute, section 9518 of the Code, as observed by the codification thereof, is but the statement "of case law on the sub......
  • Bolden v. Sloss-Sheffield Steel & Iron Co., 6 Div. 407
    • United States
    • Alabama Supreme Court
    • 18 juni 1925
    ...Dev. Co. v. Hill, 194 Ala. 537, 69 So. 948; Id., 188 Ala. 667, 65 So. 988; Danne v. Stroecker, 210 Ala. 483, 98 So. 479; Harris v. Harris, 208 Ala. 20, 93 So. 841; Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Nixon v. Clear Creek Co., 150 Ala. 604, 43 So. 805, 9 L.R.A. (N.S.) 1255; McDonald ......
  • Sterling Oil of Oklahoma, Inc. v. Pack, X--1
    • United States
    • Supreme Court of Alabama
    • 15 november 1973
    ...applied contrary to the rules of equity jurisprudence. 30 C.J.S. Equity § 98. This court recognized such limitation in Harris v. Harris, 208 Ala. 20, 93 So. 841, where is found an extensive quotation from the Wisconsin court in Clemens v. Clemens, 28 Wis. 637, 9 Am.Rep. 520, and as appropri......
  • Van Antwerp v. Van Antwerp, 1 Div. 158
    • United States
    • Supreme Court of Alabama
    • 18 december 1941
    ...subsisting between the parties and arising out of the transaction." Foster v. Winchester, 92 Ala. 497, 9 So. 83; Harris v. Harris, 208 Ala. 20, 93 So. 841. See Article by Hon. Horace Stringfellow in July, 1940, issue of "The Alabama Lawyer", pages 248 et seq. on this subject. This bill does......
  • Request a trial to view additional results

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