Kellett v. Cochran, 7 Div. 564.

• Decision Date: 07 March 1940
• Docket Number: 7 Div. 564.
• Citation: 194 So. 805,239 Ala. 313
• Parties: KELLETT ET AL. v. COCHRAN.
• Court: Alabama Supreme Court

194 So. 805

239 Ala. 313

KELLETT ET AL. v. COCHRAN.

7 Div. 564.

Supreme Court of Alabama

March 7, 1940

Rehearing Denied April 4, 1940.

Appeal from Circuit Court, DeKalb County; A. E. Hawkins, Judge.

Bill in equity by Wilma Cochran against Estelle Kellett and others contesting the will of Grace Cochran Henley, deceased. From a decree sustaining the contest, respondents (contestees) appeal.

Affirmed.

Scott &amp Dawson and C. A. Wolfes, all of Fort Payne, for appellants.

Rains &amp Rains, of Gadsden, for appellee.

ANDERSON Chief Justice.

This case involves the contest of the will of the late Mrs. Grace Cochran Henley, which said will having been proven in the probate court was contested in the equity side of the circuit court as authorized by law.

The chief grounds of contest were the mental incapacity of the testatrix to make a valid will and the undue influence of Judge and Mrs. Kellett, jointly and severally, the latter being a substantial beneficiary under the will.

The first assignment of error relates to the action of the trial court in overruling the demurrers to sub-division (j) of paragraph 4 of the contest. As we understand, this provision is based on the mental incapacity of the testatrix and not fraud. If she was of unsound mind and incapable of making a valid will, fraud would not be necessary. Therefore, the use of the word "fraudulently," as used in said provision, was superfluous and the trial court did not commit reversible error in overruling the demurrer to same.

This case presents no new or novel legal questions, or ones that have not been well settled by this court and followed by the trial court, so that it is unnecessary to cite cases or quote from same, as the issues involved were ones of fact.

The evidence, or weight of same, shows that as far back as 1936 the testatrix was a mental and physical wreck, her condition being brought on by the excessive use of liquor and drugs and, at that time, she was mentally incapable of understanding and transacting business and that her habits, as well as her mental condition, continued up to the time she made the will and died in the early part of 1938.

There was therefore evidence, by experts as well as by qualified laymen, to show that her mental incapacity was of such permanent character as to place the burden on the contestees to show that the will was made during a sane and lucid period and this was in effect and substance that part of the oral charge of the trial court to which appellants reserved an exception.

It was open for the jury to draw a reasonable inference rather than a mere conjecture of undue influence on the part of the Kelletts from their interest in the matter,...