Henry v. Hall

• Decision Date: 07 February 1895
• Citation: 106 Ala. 84,17 So. 187
• Parties: HENRY ET AL. v. HALL.
• Court: Alabama Supreme Court

17 So. 187

106 Ala. 84

HENRY ET AL. v. HALL.

Supreme Court of Alabama

February 7, 1895

Appeal from probate court, Cleburne county; R. B. Kelly, Special Judge.

Petition by George W. Hall for the probate of the will of Lucinda R Jenkins. The probate was contested by William J. Henry and another, heirs at law of the deceased. From a judgment admitting the will to probate, contestants appeal. Affirmed.

The proceedings in this case were had upon a petition filed in the probate court of Cleburne county by George W. Hall to have the last will and testament of Mrs. Lucinda R. Jenkins probated. The appellants, as next of kin and heirs at law of the testatrix, contested the probate of the will. Before entering upon the trial the contestants moved the court to suppress the deposition of the witness Evans, as a whole upon the following grounds: "(1) The answers of said witness are not responsive to the cross interrogatories. (2) Said witness has failed entirely to answer questions contained in third cross interrogatory, from lines 11 to 16 inclusive, on page 2. (3) Witness has failed entirely to answer questions in 5th cross interrogatory, from lines 12 to 21, inclusive, and also from lines 27 to 29, inclusive, of same cross interrogatory, on page 3, and on lines 17 to 20 inclusive, on page 4 of same interrogatory. (4) Said witness has failed entirely to answer first question in sixth cross interrogatory, and also the whole of said cross interrogatory contained on page 5. (5) Said witness has failed entirely to answer the questions contained in lines 26 to 28, inclusive of seventh cross interrogatory, on page 5. (6) The answer of said witness to the first question of the ninth cross interrogatory is not responsive to the question." After the examination of the witnesses the proponent moved the court to exclude from the jury the testimony of the contestants, given by themselves, as witnesses in their own behalf, in reference to statements made and acts done by the testatrix, on the ground that said witnesses, being parties to the suit, were incompetent to testify as to transactions with or statements by the testatrix. The court sustained these several motions, excluded such portions of the said witnesses' testimony, and to each of said rulings the contestants separately excepted. The grounds of the contest and the facts of the case are sufficiently stated in the opinion.

The contestants requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each one of them: (1) "The court charges the jury that they may look to the fact that the testatrix undertook, in said alleged will, to make an unlawful provision by the appointment of a guardian for James O. B. Jenkins, without bond, in connection with the other facts in the case, to determine whether or not the testatrix at the time of executing said alleged will, had testamentary capacity." (2) "If the jury believe from the evidence that the testatrix, after she recovered from the illness with which she was afflicted at the time of the execution of said alleged will, could not remember what had occurred during her illness, and when the same was executed, then they may look to this fact, in connection with the other testimony in the case, in determining whether or not she had testamentary capacity at the time of its execution." (3) "If the jury believe from the evidence that the testatrix, after recovering from the illness of which she was suffering at the time she executed the alleged will, could not remember what had taken place during her illness, then they will be authorized to find that she was mentally incompetent, during her said illness, to make a valid will." (4) "If the jury believe from the evidence that confidential relations existed between the testatrix and those to be benefited under the will, and that the beneficiaries under the will were active in the preparation of the alleged will, and in procuring its formal execution, then the law presumes the exercise of undue influence by the beneficiaries under the will, and the burden is upon the proponent to show that undue influence was not exercised over the testatrix; and, unless this presumption is removed by the proof, your verdict must be against the validity of the will." (5) "If the jury believe from the evidence that George W. Hall, the husband of one of the beneficiaries under the alleged will, and G. B. Jenkins, the father of the other beneficiary under said alleged will, employed the draughtsman to write the will, and that they dictated the terms of the will, and that they enjoined secrecy upon the draughtsman as to the will being prepared, and that the said Hall and Jenkins, or either of them, called the witnesses to attest the execution of the will, and that said witnesses were called, and the alleged will executed, at a late hour at night, then the law presumes the exercise of undue influence, and casts on the proponent the burden of overcoming this presumption; and, unless the presumption is overcome by the proof, your verdict should be for the contestants." (6) "If the jury believe from the evidence that George W. Hall, the husband of Dora Hall, one of the beneficiaries under the alleged will, and G. B. Jenkins, the father of James O. B. Jenkins, the other beneficiary under said alleged will, procured the draughtsman to write the will, and that they, or either of them, paid the draughtsman for writing the will, and that they, or either of them, enjoined secrecy on the draughtsman in regard to the will, and that they, or either of them, called the witnesses to attest the execution of the will, then the law will presume the exercise of undue influence, and the burden is upon the proponent to remove this presumption by the proof; and, unless this presumption is removed by the proof, your verdict must be against the validity of the will." (7) "The court charges the jury that if they believe from the testimony that the alleged will is unnatural,-that is, that it disposes of the testatrix's property to persons who are strangers by blood to testatrix,-and that said will was procured to be written by persons standing in close, confidential relations to testatrix, and that such persons were active in the procuring the formal execution of the will, then they would be authorized to find that the will was procured by undue influence, and therefore void, unless the contrary is clearly shown by the proof." (8) "If the jury believe from the evidence that Geo. W. Hall, the husband of one of the beneficiaries under said will, and G. B. Jenkins, the father of James O. B. Jenkins, the other beneficiary under the will, were active in procuring the will to be written and formally executed, and if they further find from the testimony that said will is an unnatural testament,-that is, that it bequeaths testatrix's property to strangers in blood to testatrix, to the exclusion of those of her own family and blood,-these facts raise the presumption of undue influence, and that the will is the result of such influence, and the burden is upon the proponent to overcome this presumption by the proof; and, unless this is done, your verdict should be against the validity of the will." (9) "If the jury believe from the evidence that the testatrix, at the time of the execution of the alleged will, and prior thereto, resided with the family of George W. Hall, the proponent, and husband of Dora Hall, one of the beneficiaries under said will, and that said Geo. W. Hall was active in procuring the preparation and formal execution of the will, then the law presumes the exercise of undue influence, and the burden is upon proponent to remove this presumption by proof; and, unless this presumption is removed by the proof, your verdict must be in favor of contestants." (10) "If the jury believe the evidence in this case, they must find for the contestants." (11) "If the jury believe from the evidence that Geo. W. Hall is the husband of one of the beneficiaries under the will, to wit, Dora Hall; that said Geo. W. Hall managed and controlled the business of testatrix at the time of the execution of the alleged will, and prior thereto, and that said Dora Hall received or is bequeathed a large benefit under said alleged will; and that said Geo. W. Hall was active in the preparation and formal execution of the will,-the inference or presumption is that by improper acts or circumvention, by the exercise of some undue influence, the testatrix was induced to bestow the gift or legacy contrary to her desire and free will, and the burden of proof is cast on the proponent to show that the will was the result of her own volition, and not procured by fraud or undue influence, and, unless this is shown by the evidence, your verdict must be against the validity of the will." (12) "If the jury believe from the evidence that testatrix was an old lady, and very sick, at the time of the execution of the alleged will, and that Geo. W. Hall is the husband of Dora Hall, and that G. B. Jenkins is the father of James O. B. Jenkins, and that Dora Hall and James O. B. Jenkins are the sole beneficiaries under said alleged will, and that said Geo. W. Hall and G. B. Jenkins were active in the preparation and formal execution of said alleged will, and that said Geo. W. Hall had been managing and controlling the business of the testatrix, then the law presumes the exercise of undue influence, and unless the presumption is removed by the proof, your verdict must be against the validity of the will." (13) "If the jury believe from the evidence that the alleged will was procured to be written and formally executed by Geo. W. Hall and G. B. Jenkins, and that said Hall had been managing and controlling the business of testatrix, and...