Harris v. Harris

• Decision Date: 22 June 1922
• Docket Number: 8 Div. 466.
• Citation: 208 Ala. 20,93 So. 841
• Parties: HARRIS v. HARRIS ET AL.
• Court: Alabama Supreme Court

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 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 his contest by filing paragraph 6, and withdrawing paragraphs 2, 3, 4, and 5 of the contest as heretofore amended, and issue being joined thereon, comes a jury of good and lawful men, to wit, Jerry Holland and eleven others, who being duly sworn, according to law, do, upon their oaths, say: "We, the jury find the issues in favor of the contestant and that the written instrument alleged to be the last will and testament of the said Mary H. Sherrod, is not the last will and testament of said decedent."

"It is therefore ordered, adjudged, and decreed that the said written instrument offered for probate in this cause as the last will and testament of the said Mary H. Sherrod, of date November 13, 1919, be and the same is hereby denied probate and rejected, and is not admitted to record as the last will and testament of the said Mary H. Sherrod, deceased. It is further ordered, adjudged, and decreed by the court that the costs legally taxable in this cause be and the same are hereby taxed against the estate of the said Mary H. Sherrod, deceased."

It is further averred that the intervening proponents and contestant appeared in court, selected a jury, and introduced one witness in addition to depositions of the subscribing witnesses to the will, who did not undertake to impair the validity of the will otherwise than upon the ground that its execution was induced by the undue influence of complainant, and this, notwithstanding there were many witnesses summoned and present and many depositions on file; that the court instructed the jury to return a verdict for contestant. It is further alleged that during these proceedings complainant was confined to his home by illness, which was known to the parties, and was unable to procure representation at the trial, which is alleged to have been in fact a mock trial; that he had no cause to apprehend that the trial would not be full and fair; that he had no notice that he would be charged with being the producing cause of the execution of said will; and that complainant was confined to his home for four weeks and until long after the second Monday in December, the date of the expiration of said term of court.

The bill further avers that the defendant, in order to defeat complainant of his rights under the will and to cause him to waive his right to overturn the spurious and fraud-infected judgment rendered on said contest, applied for and was appointed administrator of the estate of said Mary H. Sherrod, by the probate court of Lawrence county, and thereafter, in December, caused complainant to be notified that he (defendant) was willing to resign and have Henry Bynum appointed in his stead, provided complainant would go on Bynum's bond; that in complainant's judgment Bynum was a proper person to administer the estate, and that he signed his bond.

The prayer of the bill is that the judgment of the probate court denying admission of the will of Mary H. Sherrod to probate be cancelled and annulled.

By amendment all the heirs of Mary H. Sherrod are named and made parties respondent.

Callahan & Harris, of Decatur,...