Humphrey v. Boschung

• Citation: 287 Ala. 600,253 So.2d 769
• Decision Date: 30 September 1971
• Docket Number: 8 Div. 415
• Parties: In re Wayne HUMPHREY, as Executor of the Estate of T. J. Morrow, Deceased, v. Opal S. BOSCHUNG and Onie S. Garrison, Individually and as Administratrices of the Estate of Katie Morrow Sharp, Deceased. Ex parte Opal S. BOSCHUNG and Onie S. Garrison, Individually and as Administratrices of the Estate of Katie Morrow Sharp, Deceased.
• Court: Supreme Court of Alabama

Page 769

253 So.2d 769

287 Ala. 600

In re Wayne HUMPHREY, as Executor of the Estate of T. J. Morrow, Deceased, v. Opal S. BOSCHUNG and Onie S. Garrison, Individually and as Administratrices of the Estate of Katie Morrow Sharp, Deceased.

Ex parte Opal S. BOSCHUNG and Onie S. Garrison, Individually and as Administratrices of the Estate of Katie Morrow Sharp, Deceased.

8 Div. 415.

Supreme Court of Alabama.

Sept. 30, 1971.

Hutson & Elrod, Decatur, for petitioners.

Grady J. Long, Hartselle, for respondent.

LAWSON, Justice.

We granted the petition for writ of certiorari filed by Opal S. Boschung and Onie S. Garrison in their individual and representative capacities to review the decision and judgment of the Court of Civil Appeals in the case of Humphrey, as Executor of Estate of Morrow, Deceased v. Boschung and Garrison, Individually and as Administratrices of the Estate of Katie Morrow Sharp, Deceased, 47 Ala.App. 310, 253 So.2d 760.

The writ was duly issued and the cause was submitted on May 18, 1971, upon the transcript and briefs, in lieu of oral argument. Supreme Court Rule 39, as amended.

After considering the opinion of the Court of Civil Appeals, in connection with the prolix and somewhat confusing petition for writ of certiorari and the briefs filed on behalf of the parties, we have felt constrained to go to the original record filed in the Court of Civil Appeals in an attempt to get a better understanding of the questions which we must consider. In Cranford v. National Surety Corp., 231 Ala. 636, 637, 166 So. 721, 722, we said in part as follows:

'* * * when there is no dispute about the facts, we examine the record for a more complete understanding of those features of it which are treated. Fairbanks, Morse & Co. v. Dees, 220 Ala. 604, 126 So. 621; Hood v. State, 230 Ala. 343, 162 So. 543. This naturally includes pleadings, charges, and contracts which that court has interpreted in the opinion under consideration.' (Emphasis supplied)

The opinion of the Court of Civil Appeals indicates that the record in this estate claim case, which might be expected to be simple, is indeed complex. We agree and after reviewing the record we are reminded of an observation made by Mr. Justice Harwood, writing for the court in another estate claim case, White v. Hilbish, 282 Ala. 498, 213 So.2d 230. We quote:

'From this modest situation (contest of a claim against an estate) what at first appeared to be only a jurisprudential hillock has by motions, counter motions, and procedural steps, been raised into a jurisprudential Mount Everest necessitating a record of some 775 pages.' (282 Ala. 500, 213 So.2d 232)

The record in this case is not as large as was the record in the White case, Supra, but the record here does contain two hundred and fifty pages, many of which are filled with complicated pleadings, which makes us appreciate fully the dilemma with which the Court of Civil Appeals was confronted in drafting the opinion here under review.

This litigation originated in the Probate Court of Morgan County when Mrs. Boschung and Mrs. Garrison, in their capacities as administratrices of their deceased mother, Mrs. Sharp, filed a claim against the estate of their deceased uncle, T. J. Morrow, for room, board and personal attention which Mrs. Sharp was alleged to have supplied to her brother, T. J. Morrow.

Wayne Humphrey, as executor of the estate of T. J. Morrow, deceased, gave written notice to the claimants to the effect that their claim was disputed. § 216, Title 61, Code 1940, as amended.

The record shows that Mr. Humphrey, as executor of the Morrow estate, timely took an appeal 'from the Order and Judgment of the Probate Court of Morgan County, Alabama, * * * allowing a portion of the Claim filed * * *' by Mrs. Boschung and Mrs. Garrison against the said Morrow estate.

We will sometimes hereinafter refer to Mrs. Boschung and Mrs. Garrison as the claimants and to Mr. Humphrey as the contestant.

The appeal was taken under the authority of § 216, Title 61, Code 1940, as amended and, therefore, was to the Circuit Court of Morgan County, where the cause was tried De novo before a jury, which returned the following verdict: 'We, the jury, find for the claimants and fix the amount at $1,916.00.' The Circuit Court thereupon rendered a judgment which in pertinent parts reads:

'Therefore, in accordance with the verdict of the jury in this cause, it is now by the Court considered, ordered and adjudged that the claim of (claimants) against the estate of T. J. Morrow, deceased, be, and the same hereby is, allowed and established in the amount of, to-wit (1,916), and disallowed and denied as to any and all sums in excess of the said amount of $1,916.00 in which the said claim is here-with allowed and established. * * *'

We do not construe that judgment to be a monied judgment. It appears to us to be in a form which complies with prior decisions of this court. We have said that the determination of a contest or claim filed against an estate as authorized by § 216, Title 61, supra, does not ordinarily lead to a monied judgment. Dodd v. Lovett, 282 Ala. 383, 211 So.2d 799; Ex parte Zepernick, 259 Ala. 493, 66 So.2d 757. Cf. Merchants Nat. Bank of Mobile v. Cotnam, 250 Ala. 316, 34 So.2d 122.

From the aforementioned judgment the contestant, Mr. Humphrey, appealed, assigning as error various rulings of the trial court and the action of that court in giving certain written charges requested by claimants.

The Court of Civil Appeals reversed the judgment of the Circuit Court of Morgan County because the trial judge gave claimants', appellees', written charges numbered 32, 34 and 36, and on no other ground. This review by certiorari followed the action of the Court of Civil Appeals in reversing the judgment of the Circuit Court of Morgan County.

As indicated in the opinion of the Court of Civil Appeals, the claim which was filed in the probate court was the claimants' initial pleading in the circuit court, the claimants not seeing fit to formalize the allegations in the claim into a complaint. The claim makes no reference to an express contract and it was apparently drafted to come within the principle of our cases to the effect that an implied agreement between near relatives to pay a reasonable sum for support may be inferred where the facts and circumstances are such that a mutual intent to pay and to receive pay for such services is a reasonable and just conclusion. Coleman v. Adkins, 232 Ala. 351, 168 So. 184, and cases cited. We have observed that in proceedings of this kind formal pleadings are not contemplated or practical. Norton v. Liddell, 280 Ala. 353, 194 So.2d 514.

Although claimants did not rely upon an express contract in their claim, the contestant in Pleas 2 and 3 pleaded the statute of limitations of six years applicable to a simple contract (§ 21, Title 7, Code 1940; Keel v. Weinman, 266 Ala. 684, 98 So.2d 611; Marsh v. Southern Airways, Inc., 5 Cir., 316 F.2d 91), along with a plea of the statute of limitations of three years (§ 24, Title 7, Code 1940), applicable to open account claims for services rendered a deceased. Norton v. Liddell, Supra.

The Court of Civil Appeals held that claimants' Charge 32 was so misleading and prejudicial to contestant, the appellant in that court, as to require a reversal.

The effect of the Court of Civil Appeals' holding is that Charge 32 is misleading in that it is abstract because it is hypothesized on the jury's being reasonably satisfied from the evidence that there was an express contract, although there was no evidence of a valid express contract.

An instruction based partly or entirely on a state of facts not appearing in the evidence has been held to be abstract. Pappas v. Alabama Power Co., 270 Ala. 472, 119 So.2d 899; State v. Ingalls, 277 Ala. 562, 173 So.2d 104; Allen v. Hamilton, 109 Ala. 634, 19 So. 903; Garrett v. Holloway, 24 Ala. 376.

This court has said that the giving of an abstract charge, one hypothesized on facts which had no support in the evidence, does not constitute reversible error unless it appears from the whole record that the charge did in fact mislead the jury to the appellant's prejudice. Robinson v. Crotwell, 175 Ala. 194, 57 So. 23; Locklear v. Nash, 275 Ala. 95, 152 So.2d 421. See Blair v. St. Margaret's Hospital, 285 Ala. 636, 235 So.2d 668; Knabe v. State, 285 Ala. 321, 231 So.2d 887; Farr v. Blackman Plumbing & Heating Co., 267 Ala. 585, 103 So.2d 777.

But this court has reversed where it has determined from an examination of the entire record that the jury was misled because of the giving of an abstract charge. Herring, Farrell & Sherman v. Skaggs, 73 Ala. 446; Beck v. State, 80 Ala. 1; Goldsmith & Davis v. McCafferty, 101 Ala. 663, 15 So. 244; Goldsmith v. State, 86 Ala. 55, 5 So. 480. See Lassetter v. King, 249 Ala. 422, 31 So.2d 588.

As we have indicated above, the Court of Civil Appeals' conclusion that Charge 32 is misleading is grounded on its finding that there was no evidence of a valid express contract. We quote from the opinion of the Court of Civil Appeals:

'* * * We have thoroughly examined the evidence and find nothing to support the existence of such a contract. The only evidence offered as to an express contract was the conversation between Morrow, Mrs. Sharp and her daughters on Sunday afternoon, May 19, 1959. (See opinion delivered by Court of Civil Appeals in response to application for rehearing concerning the date of the conversation.)

'It is the statutory law of this state that all contracts made on Sunday, with specific exceptions not applicable to this case, are void. Title 9, Section 21, Code of Alabama 1940. McNeel Marble Co. v. Robinette, 259 Ala. 66, 65 So.2d 221.

'Since there was no evidence before the jury as to a valid express contract, the court should not have instructed the jury that a statute of limitation of six years might enter into their deliberations. * * *'

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