Johnson v. Howard, 2 Div. 446

• Decision Date: 09 December 1965
• Docket Number: 2 Div. 446
• Citation: 181 So.2d 85,279 Ala. 16
• Parties: Andrula JOHNSON, v. Hillard HOWARD.
• Court: Alabama Supreme Court

Page 85

181 So.2d 85

279 Ala. 16

Andrula JOHNSON, v. Hillard HOWARD.

2 Div. 446.

Supreme Court of Alabama.

Dec. 9, 1965.

Harry W. Gamble and J. E. Wilkinson, Jr., Selma, for appellant.

Pitts & Pitts, Selma, for appellee.

PER CURIAM.

The contestants of a will appeal from an adverse judgment of the Circuit Court of Dallas County, Alabama, wherein a jury rendered a verdict in favor of the proponent of the will of Mattie Douglas Johnson, known also as Mattie Jones.

The contestants, Andrula Johnson, a person of unsound mind, by Sam Lewis, as guardian, and Sam Lewis as guardian of Andrula Johnson, a person of unsound mind, contend, by appropriate pleadings, that the testatrix was mentally incompetent to make and execute a will on the 11th day of January, 1961, the date the will in question was executed; and also that the execution of said will was obtained by undue influence exercised over her by the two principal beneficiaries of said will; namely, Hillard Howard and his wife, Alberta Holmes Howard, one or both of them.

It appears that the testatrix, whom we will refer to as Mattie Jones, willed all of her Alabama real and personal property to the Howards, and $1.00 to a mentally retarded child, Andrula Johnson, approximately 48 years of age at the time.

Appellants here assert by assignment of error that the trial court erred in overruling their motion for a new trial. This assignment presents for consideration of this court all questions of law and fact sufficiently set forth in the motion and adequately argued on this appeal. Roan v. McCaleb, 264 Ala. 31, 84 So.2d 358(8).

We will first consider grounds numbered 2 and 3 of the motion, as follows:

'2. For that the verdict of the jury is not sustained by the great preponderance of the evidence.

'3. For that the verdict of the jury is not sustained by the great preponderance of the evidence and is contrary to both the law and the facts in the case.'

The evidence on the issue of testatrix's mental competency at the time she executed the will on January 11, 1961, is conflicting. It appears from the record before us that appellants introduced five witnesses who testified as to their knowledge of testatrix, and that she was a person of unsound mind, and also to facts and circumstances concerning testatrix from which the jury could infer such incompetency on the date in question.

Proponent of the will introduced eleven witnesses whose testimony tended to support proponent's contention that testatrix was mentally competent when she executed the will on January 11, 1961.

We here accord full recognition to the many pronouncements of this Court that jury verdicts are presumed to be correct and no ground of a new trial is more carefully scrutinized or more rigidly limited, than that the verdict is against the evidence. Smith v. Smith, 254 Ala. 404, 48 So.2d 546(5).

In view of this conflicting evidence, we are unwilling to disturb the verdict on the issue of mental competency. A delineation of the evidence on this issue would unnecessarily burden and lengthen this opinion.

Appellants insist that the will of testatrix was the product of undue influence exercised by the two principal beneficiaries, Hillard Howard and his wife. This insistence is not so devoid of merit as the issue of mental competency vel non.

The evidence shows that testatrix owned her home and two or three other houses and lots in the neighborhood of the home. This property was the subject of the will, but not some real property in Detroit, Michigan, which testatrix specially requested not to be included in the will.

On November 30, 1960, she had a joint savings account in a Selman bank in the sum of $3252.90, which she checked out and turned over to Alberta Howard on the same date. This savings account was in the name of Mattie Jones or Andrula Johnson. The withdrawal, less $350.90, was deposited to the account of Alice Howard, in the same bank on the same date. Alice Howard was the niece of the Howards. Some of this money was used by the Howards to repair the real property of the donor, Mattie Jones. A substantial amount of the withdrawal was used by Hillard Howard to buy cattle for himself.

It also appears from the evidence that at the time of the execution of the will, testatrix also executed and delivered a deed to the Howards that conveyed her real property in Selma. The Circuit Court of Dallas County vacated the deed. The proceedings concerning this real property were not introduced in evidence, but excerpts of Alberta Howard's testimony at this trial were admitted in evidence in the case at bar over the objection of proponent. The rulings of the trial court in the case at bar on the objections to the admission of this testimony are not before us.

These excerpts tended to show a course of conduct between the Howards and testatrix which appellants here contend, along with other testimony, establish a confidential relationship between the Howards and testatrix. The evidence was admitted to that end. The Howards in the case at bar did not take the witness stand. Alberta Howard testified in the former trial to set aside the deed that Mattie Jones talked to her first and told her what she wanted to do and 'she recommended that we see somebody that know more about it than we did and we went and talked to Mr. Zimmerman.' After seeing Mr. Zimmerman, who employed Hillard Howard, they went to the office of Mr. Esco (the attorney who prepared the deed and will). Testatrix told him what she wanted done, and also discussed before witness the making of a will and a divorce from her husband. Mr. Esco, according to witness, subsequently prepared a deed and other instruments for her to sign. Further, Alberta Howard testified that Mr. Esco did not tell her that he did not want her or her husband present at the time Mattie Jones signed the instruments. Witness was present when the instruments were signed. Further, witness stated that 'we' saw Mr. Esco several times before the instruments were signed. Witness did not remember that Mr. Esco told her to have testatrix come up to his office by herself in a taxicab and sign her will and deed. She didn't know that Mattie Jones came to Mr. Esco's office several times by herself.

Attorney Sam Esco, a witness, introduced by proponent of the will, testified that he had been representing Mattie Jones for about five years prior to January 11, 1961, the date the will was executed. At an interview on December 29, 1960, prior to the date of the execution of the will, he took down all the facts and placed them in his regular will information sheets. He saw her three different times between December 29, 1960 and January 11, 1961, and discussed with her about the will and how it was to be drawn. On January 11, 1961, testatrix came to his office in a taxicab, and on arrival she went to Mr. Esco's private office where he presented her with the prepared will. Testatrix read the will, studied it, and then discussed within various provisions of the will. Mr. Esco explained to her the contents of the will. He then testified as to its execution.

Mr. Esco testified on cross-examination that at the time Mattie Jones executed the will he understood that Alberta Howard was in an outer office; she was not in his private office; that he sent a taxicab for Mattie Jones, and then put her in a taxicab and sent her home; that he called Mr. Zimmerman to come to his office; that Mattie Jones paid him for his legal services for preparing the will and the deed; and she insisted on various charges in the will. Further, he testified that he did not know if the Howards ever told him they were looking after Mattie Jones' property.

Witness James Zimmerman, called by proponent, testified as to Mattie Jones signing the will in his presence in the office of Mr. Esco; that no one else was present in the office where the will was signed except Mattie Jones and the three witnesses. Also, he stated that he had known Mattie Jones for 5, 6 or 7 years and Hillard Howard and his wife for 20 or 25 years; that he would see Mattie Jones two or three times a week, either in the pasture or in his store.

On cross-examination, he testified that he had seen the Howards and Mattie Jones together on his place; that they came to him a short while before he witnessed Mattie Jones' will and told him about Mattie Jones wanting to make a deed (no mention was made of a will) to her property to the Howards. He advised them to see Mr. Esco.

On further Re-direct Examination, witness testified that one of the Howards and Mattie Jones talked to him about making a deed. This was a short time before he witnessed the purported will. Mattie Jones wanted to convey her property to the Howards, but not her Detroit real property. Witness also testified that he did not know a deed was executed on the same date that the will was executed. Witness also testified about selling Hillard Howard some cattle for $1749.50 for which he received a check drawn by Alice Howard on the bank account created in her name by depositing the money that Mattie Jones had withdrawn from the joint bank account and delivered to the Howards.

While we have not delineated the entire testimony adduced at the trial of this will contest, we think the above fairly depicts the evidence adduced on the issue of undue influence as a ground of contest. We do not deem it necessary to set out or narrate the testimony on the issue of insanity. We have carefully reviewed all the testimony and read the text of the same. We noted the conflicting evidence as to the mental state of Mattie Jones, before, at the time, and after the execution of the will. Suffice it to say, the jury resolved the mental issue in favor of proponent; also her mental condition favorably to proponent as it affects or sheds light on the issue of undue influence. The verdict of the jury was tantamount to a finding for proponent's contention that testatrix was not so weak mentally that she...