Howell v. Howell

• Decision Date: 08 February 1923
• Docket Number: 4 Div. 19.
• Citation: 210 Ala. 429,98 So. 630
• Parties: HOWELL v. HOWELL.
• Court: Alabama Supreme Court

98 So. 630

210 Ala. 429

HOWELL v. HOWELL.

4 Div. 19.

Supreme Court of Alabama

February 8, 1923

Rehearings Denied June 28, 1923, and Dec. 13, 1923.

Appeal from Probate Court, Covington County; J. M. Robinson, Judge.

Petition by J. A. Howell to probate an instrument as the last will of J. E. J. Howell, deceased, with contest by Lizzie Howell. From a decree for contestant, proponent appeals. Affirmed.

Thigpen Murphy & Jones, of Andalusia, for appellant.

Powell & Reid, of Andalusia, for appellee.

THOMAS J.

The appeal is from a decree of the probate court rejecting for probate the will of J. E. J. Howell, deceased, there being a jury and verdict for contestant.

The respective grounds of contest and issues tried were (1) that J. E. J. Howell "was of unsound mind and incapable of making a valid will," and (2) "that said instrument (purporting to be the last will and testament of J. E. J Howell) is the product and result of influence exercised" by the parties specifically named, "or some one or more of them," and "was not the result of the exercise of his own free volition." A motion was made by plaintiff and proponent to set aside the verdict of the jury and to grant a new trial on specific grounds indicated therein. The motion was overruled, to which action of the court the plaintiff and proponent "then and there duly and legally excepted." The general charges requested and refused to plaintiff, the proponent, and made the ground of the motion for a new trial, will be reviewed as to the sufficiency of the evidence, though no evidence was shown by the bill of exceptions to have been specifically offered in support of the motion. The cases of Powell v Folmar, 201 Ala. 271, 78 So. 47, and Stover v. State, 204 Ala. 311, 85 So. 393, merely recite the statute. The testimony offered on the trial was "in the breast of the court," and needed no reintroduction in support of the motion. Moneagle & Co. v. Livingston, 150 Ala. 562, 43 So. 840; Thomas Bros. v. Williams, 170 Ala. 522, 54 So. 494; National Pyrites & Copper Co. v. Williams, 206 Ala. 4, 6, 89 So. 291. The present statute providing "and the evidence taken in support of the motion *** shall be included in the bill of exceptions ***" did not change the former rule as to testimony taken on the original trial, and that may be considered by the court on the hearing of the motion. It was sufficient that such evidence is included in the bill of exceptions. We need hardly observe that, if other evidence was only offered on the hearing of the motion, it must be included in the bill of exceptions as "taken in support of the motion." Acts 1915, p. 722.

The refused charges requested by plaintiff and proponent were in writing, and indorsed: "Rejected. J. M. Robinson, Judge of Probate." This was a substantial compliance with the statute to make same grounds for a new trial, and to authorize a review of the action of the trial court in refusing the same. Acts 1915, p. 815.

There was preponderance of the evidence supporting the ground of contest that J. E. J. Howell was of unsound mind, and incapable of making a will at the time indicated. Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec. 150; Councill v. Mayhew, 172 Ala. 295, 55 So. 314; West v. Arrington, 200 Ala. 420, 76 So. 352; Miller v. Whittington, 202 Ala. 406, 80 So. 499.

As to the ground of the undue influence, the question is not sufficiently raised by the "no evidence" charge No. 12, refused to plaintiff or by the motion for a new trial; and we need not consider the sufficiency of the evidence as to whether or not the testator was unduly influenced in making the will. Posey v. Donaldson, 189 Ala. 366, 368, 66 So. 662.

There was no error in the refusal of charges numbered 11 and 12; they are "no evidence" charges, and such as have been condemned by this court. B. R. L. & P. Co. v. Milbrat, 201 Ala. 368, 373 (13, 14), 78 So. 224; Wear v. Wear, 200 Ala. 345, 348, 76 So. 111; City of Birmingham v. Poole, 169 Ala. 177, 52 So. 937; A. G. S. R. Co. v. Yount, 165 Ala. 537, 51 So. 737; New Connellsville C. & C. Co. v. Kilgore, 162 Ala. 642, 50 So. 205; Tutwiler v. Burns, 160 Ala. 386, 49 So. 455. See Shipp v. Shelton, 193 Ala. 658, 69 So. 102. There was ample evidence of testamentary incapacity, and charges 1 and 2 were properly refused.

Questions by defendant, tending to show the relation existing between the testator and his wife, that the latter assisted the husband in making and accumulating his property were competent on the phase of contest for undue influence. Under this ground of contest, the evidence covered by the eighth, ninth, twelfth, twenty-second and twenty-fourth assignments of error was competent. Burney v. Torrey, 100 Ala. 157, 174, 14 So. 685, 46 Am. St. Rep. 33.

There being other proof tending to show testator's mental incapacity, evidence that his mother became insane was relevant and admissible. Wear v. Wear, 200 Ala. 345, 76 So. 111; 22 Cyc. pp. 1117, 1118; 7 Ency. of Ev. pp. 453, 454.

Witnesses Powell and Howell, having known the testator for many years prior to his death, evidence that witnesses went with him to hospital in Montgomery the day after the will was executed, observed the peculiarity about his eyes and "muscles twitching," was competent with other evidence, and long knowledge of testator, on which to base their opinion that testator was "not of sound mind," and that in the opinion of the witnesses "at that time his mind was unsound." Miller v. Whittington, 202 Ala. 406, 410 (8), 80 So. 499; Mullen v. Johnson, 157 Ala. 262, 47 So. 584.

The letter to his wife, and memoranda of testator of a will before the execution of the will offered for probate, with other evidence from which the jury may infer undue influence, was competent evidence. The several writings were related to the will in question, and a tendency of evidence of testator's intent as to final disposition of his property to the beneficiaries therein and the natural objects of his bounty. Such evidence had a tendency to show that the will propounded for probate is in conflict with the fixed purpose of testator, or previously expressed purpose to dispose of his property by will. Seale v. Chambliss, 35 Ala. 19; Hughes v. Hughes, 31 Ala. 519; Schieffelin v. Schieffelin, 127 Ala. 14, 36, 28 So. 687.

The memorandum of date of "Mar. 20, 22," which we judicially know to mean March 20, 1922, after the will was signed, was competent evidence, under the pleadings, as shedding light on the condition of testator's mind immediately after the execution of the will propounded for probate. Bulger v. Ross, 98 Ala. 267, 12 So. 803. It is not clear from the report of Murphree v. Senn, 107 Ala. 424, 427, 18 So. 764, that statements therein on ruling on evidence are in conflict with the foregoing. The letters were "undated and unsigned," and may have been ascribed to other agencies than that of testatrix, Savannah Shofner, which latter fact, we think, distinguished Murphree v. Senn, supra, from Bulger v. Ross, supra, and the conclusion we here announce.

The decree of the probate court is affirmed.

Affirmed.

All the Justices concur.

On Rehearing.

This court had the power ex proprio motu to put the case on rehearing that further consideration might be given to the decisions said by appellant to be applicable to the rulings on evidence, which we now specifically indicate. It may be that we should have done this in the first instance when it was thought not to be necessary.

The question propounded to the witness R. H. Foshee was: "Do you know anything about whether or not she assisted in any way her husband in making and accumulating his property?" After objection and exception, the witness answered: "I could not say positively, but I am of the opinion that she did." This was not responsive, being an expression of opinion of the witness. The only part of the answer that was responsive was "I could not say positively." The opinion of the witness was not permissible or sought to be elicited. The court cannot be put in error for allowing a nonresponsive answer to go to the jury when there was no motion to exclude. Ward v. Lane, 189 Ala. 340, 66 So. 499; Mobile Light & R. Co. v. R. O. Harris Gro. Co., 17 Ala. App. 659, 661, 88 So. 55. For like reason the court will not be reviewed for permitting defendant's question to the witness Smith: "Now do you know about Mrs. Howell assisting her husband in making and accumulating his property and his estate?" to be answered: "Yes, I saw her most every day at work there, at work scrubbing and washing and cooking." Ward v. Lane, supra; Mobile Light & R. Co. v. R. O. Harris Gro. Co., supra.

Counsel for contestant (appellee) was permitted to ask Mrs. Howell this question: "This property that he did leave, and that he owned at the time of his death, did you do anything towards assisting him in accumulating that property or making it? Just tell the jury what it was, Mrs. Howell?" to which the plaintiff (appellant) objected and excepted to the adverse ruling of the court. The witness answered:

"Well, I helped him in every way that I could; if there was anything that I could do in doing my own work and in helping him I did it. I taken in sewing part of the time, and I got up, when he got to running his taxi, I got up all hours of the night to get him his supper when he came in at night, and I would get up before day every day to get him his breakfast before he left, and I helped him in every was [way] to make and save what we have. I have done my washing and ironing and scouring to help him to make what we had."

This answer of the wife, made the basis of appropriate assignment of error and arguments of counsel, is the story of normal domestic life, in a household where harmony prevails frugality is...