Johnston v. Johnston

• Citation: 57 So. 450,174 Ala. 220
• Parties: JOHNSTON v. JOHNSTON ET AL.
• Decision Date: 11 January 1912
• Court: Supreme Court of Alabama

57 So. 450

174 Ala. 220

JOHNSTON v. JOHNSTON ET AL.

Supreme Court of Alabama

January 11, 1912

Appeal from Probate Court, Bullock County; A. E. Singleton, Judge.

Application by M. B. Johnston for probate of the will of Morgan P Johnston, deceased, contested by M. W. Johnston and others. Decree refusing probate, and proponent appeals. Reversed and remanded.

The facts sufficiently appear in the opinion. The following charges were refused to the proponent: (A) "The burden of proof as to insanity or incapacity to make a will is on the contestants in the first instance, and that burden remains on the contestants until they show habitual and fixed insanity or otherwise of testamentary incapacity at the time the will was executed." (C) "Sanity is the normal condition of the human mind, and the testator in this case is presumed by law to have been sane when he made this will unless the contestants have shown to the jury's satisfaction that he was under the disability of habitual or fixed insanity prior to the execution of the will, or that he was not capable of making the will at the time the will was made." (E) "The burden of proof as to testamentary capacity is on the contestants, and is not shifted, except by proof of habitual or fixed insanity on the part of the testator prior to the making of the will."

Norman & Son, E. R. Brannen, and L. M. Moseley, for appellant.

Ernest L. Blue, R. E. L. Cope, and Ray Rushton, for appellees.

McCLELLAN J.

Contest of the instrument propounded for probate as the last will and testament of Morgan P. Johnston, deceased.

The issues formed were, in substance, two: Want of mental capacity to make a will, and undue influence exerted upon the decedent in the execution thereof.

Following a general finding that the paper propounded was invalid, the verdict expressed the jury's particular finding that decedent was mentally incompetent to make a will on December 1, 1905.

Since one mentally incompetent to make a will cannot be the subject of fraud or undue influence in the execution thereof ( Burney v. Torrey, 100 Ala. 157, 168, 14 So. 685, 46 Am. St. Rep. 33), that phase of the trial touching the issue of undue influence, by whomsoever exerted (if so), is eliminated from consideration on this appeal. Errors, if any intervening in respect of that issue were without injury to appellant. We therefore confine the review to errors assigned as upon the rulings and action of the court in reference to the issue of mental capacity vel non to execute a will on December 1, 1905. Without attempting to restate the very voluminous evidence bearing upon the issue of mental capacity vel non, it will suffice to affirm, after careful consideration, that the decision upon this issue was for the jury.

The contestants propounded to each of a large number of nonexpert witnesses, who had shown an acquaintance with decedent covering many years, in substance, this question: Whether, from this acquaintance with and knowledge of decedent, he was mentally capable of making a will on December 1, 1905, and whether, from this acquaintance and knowledge of decedent, he was capable of transacting business on or about that date.

With the exception of a general objection, taking the point that the testimony sought was "illegal," addressed to the questions stated when propounded to the last few witnesses examined by contestants, the only objections made (otherwise) expressed the criticism, in substance, that the witnesses had not qualified to give an expert opinion as thereby called for. Each of the witnesses replied in the negative.

Objections to proffered evidence are of two general classes, viz., those directed to the means of conveying evidence to the trier of fact, and those addressed to the evidence itself. Aside from the statement that the "question," or the testimony sought to be elicited thereby, was "illegal," the objections taken to the indicated matter related alone to the competency of the means whereby the proffered testimony was undertaken to be availed of. The criticism that testimony is "illegal" is a mere general objection. Coghill v. Kennedy, 119 Ala. 641, 662, 24 So. 459; Steiner v. Tranum, 98 Ala. 319, 13 So. 365. And the rule with us is that, unless the testimony sought is patently inadmissible, the court will not be put in error for overruling a general objection. Richards v. Bestor, 90 Ala. 352, 8 So. 30; Espalla v. Richard, 94 Ala. 159, 162, 10 So. 137. The objection that a question is illegal, or that it seeks to elicit illegal testimony, does not raise the point that the question calls for a conclusion of the witness. Steiner v. Tranum, supra; Torrey v. Burney, 113 Ala. 496, 505, 21 So. 348. The testimony the questions sought was not patently inadmissible. It was relevant to the issue of mental capacity vel non to execute the instrument propounded for probate. It was the crux of the issue the jury, in that particular, was to determine. The vice of the questions was that they called for the legal conclusion of the witness, an infirmity not pointed out by the general objection of illegality. Steiner v. Tranum, supra.

Whether a nonexpert witness is...