Appeal from Circuit Court, Franklin County; Chas
P. Almon, Judge.
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Assignment
24 is as follows: "For that the court erred in
sustaining the defendants' objections to questions
propounded to the plaintiff for the purpose of identifying
certain letters purporting to have been written by Mrs
Henrietta Sugg, the tendency of the questions being to show
whether or not Mrs. Sugg signed letters
'Hen'."
Proponent
asked the witness Caradine the following question, sustaining
of contestant's objection to which is made the basis of
assignment 42: "I will ask you to state whether during
the period of time he was here on the last occasion, you did
say he was mentally alert or not?"
The
sustaining of objection by contestants to the following
question propounded by proponent to witness Murphy is the
subject of assignment 45: "Was or was not Charles R.
Burgess a man of keen business sense?"
The question to witness Cocke made the subject of
assignment 47 is as follows: "Doctor, would it be an
indication of insanity for a man seventy-two years of age to
place his chair where he would be facing the crowd and sit
down and talk to people, a man that had reached the age of
seventy-two years, where there were chairs set out in front
of a hotel or lobby where the guests sat and conversed, would
it, in your opinion, be indicative of insanity that a man of
that age would bring his chair to a point on the sidewalk
where he would be facing the crowd in
conversing?"
Proponent
propounded to the witness Dr. Schmid the following question:
"But since you have been retained to come here and
testify in behalf of the contestants your memory has been
refreshed as to some of the evidence?"
The
sustaining of contestants' objection to this question is
the basis of assignment 73.
The
following charges were refused to proponent:
"3.
I charge you that the evidence in this case is insufficient
to support the allegation of specification No. 1 to the
effect that the alleged will was not duly executed by the
deceased."
"19.
The Court charges the jury that the undisputed evidence in
this case establishes the fact that Charles Rabon Burgess
signed the alleged will and requested each of the attesting
witnesses to witness his said will and that each of the said
witnesses subscribed the same in the presence of each other
and in the presence of Charles Rabon Burgess."
"23.
The jury will not be authorized to return a verdict for the
Contestants upon the issue of undue influence without
evidence, believed by the jury, reasonably satisfying the
jury, that there was such coercion brought to bear upon the
said Charles Rabon Burgess that the signing of the alleged
will was not the product of his own will."
"25.
I charge you that the burden of establishing undue influence
is upon the Contestants. For undue influence to vitiate a
will the same must in some measure destroy the testator's
free agency, must be equivalent to moral coercion and must
constrain him to do that which is against his will, but
which, from fear, the desire of peace, or some other feeling
other than affection, he is unable to resist. Unless the
Contestant has shown, from the evidence and to your
reasonable satisfaction, such undue influence as meets the
requirements of this definition, then your verdict must be
for the proponent on the issue of undue
influence."
"27.
Undue influence is that which compels the testator to do that
which is against his will, from fear, the desire of peace, or
some feeling which he is unable to resist, and which is
tantamount to force or fear. The burden of establishing such
undue influence rests upon the Contestants and, unless the
Contestants have shown such undue influence as meets the
requirements of this definition, by credible evidence, and to
your reasonable satisfaction, you should find for the
proponent on the issue of undue influence."
"51. The Court charges the jury that
if from the evidence the jury be reasonably satisfied of the
truth of any theory of facts, consistent with the validity of
the will, which is equally as probable as some theory of
facts inconsistent with the validity of the will, the will
should be sustained and the jury should find for the
proponent of the will."
"52.
The Court charges the jury that the right of a person to make
a will is a solemn and sacred right accorded by the law, and
that a testator should be protected and safeguarded in the
due execution of his will by juries, as far as the statute
will permit, from forgetful or corrupt or false attesting and
subscribing witnesses, and the jury should consider with
great caution and with suspicion, the testimony of the
witness, D. J. Bolton, so far as such testimony may tend to
disprove the due and lawful execution of the will here
offered for probate, which it is undisputed he signed as an
attesting witness."
"4.
If you believe the evidence, you will find that the alleged
will was duly executed by Charles Rabon Burgess."
"5.
The court charges the jury that the evidence is insufficient
to justify a verdict for contestants on grounds of contest
numbered 1."
Charges
6 and 7 are the same as charge 5, except as to the ground of
contest.
"20.
I charge you that the instrument offered for probate as the
will of Charles Rabon Burgess was, if you believe the
evidence in this case, executed and witnessed
in the manner and forms required by law."
"21.
I charge you that the instrument offered for probate as the
will of Charles Rabon Burgess was, if you believe the
evidence in this case, duly signed by the said Charles Rabon
Burgess and attested by the witnesses in the manner and form
required by the law.
These
charges were given at the request of contestants:
"2.
The Court charges you, gentlemen of the jury, that in order
for the alleged will of Charles Rabon Burgess, here offered
in evidence, to be a good and valid will, it must be in
writing and signed by Mr. Burgess, or by some person in his
presence and by his direction, and attested by two witnesses
who must subscribe their names thereto as witnesses, in the
presence of Mr. Burgess."
"3.
The Court charges you, gentlemen of the jury, that the
witnesses to the will of Charles Rabon Burgess must have seen
Mr. Burgess sign his name to the alleged will here offered in
evidence, or Mr. Burgess must have acknowledged to them that
the signature affixed to the will was his
signature."
"4.
The Court charges you that, if you are reasonably satisfied
from the evidence that the witnesses to the alleged will
offered in evidence, or either of them, did not see Charles
Rabon Burgess sign his name to such will, and Mr. Burgess did
not acknowledge to them that the signature affixed to the
will was his signature, then the will was not legally
executed and your verdict should be for the contestants and
against the validity of the will. The law is that if either
one of the witnesses did not see Mr. Burgess sign his name to
the will and Mr. Burgess did not acknowledge the signature to
the will to be his signature then the will was not legally
executed."
"5.
The Court charges you, gentlemen of the jury, that if Charles
Rabon Burgess, at the time he executed the paper here offered
as his will, did not have mind and memory sufficient to
understand the business he was engaged in, to remember the
property he was about to devise and bequeath, the objects of
his bounty and the manner in which he wished to dispose of
his property, then he did not have the mental capacity
sufficient to execute a will."
"6.
Gentlemen of the jury, you must decide and decide from the
evidence, whether or not Charles Rabon Burgess, at the time
of making this alleged will, had sufficient mental capacity
to understand, first, his property, its nature and kind;
second, whether or not he had sufficient mental capacity to
understand the natural recipients of his bounty, that is, his
relatives and the ones he would naturally want to leave his
property to; and third, whether he had sufficient mental
capacity to understand the will that he made; to understand
how he was disposing of his property, to really understand
the will and to know what he was doing, to really know how he
was doing it."
"11.
The Court charges you, gentlemen of the jury, that if you are
reasonably satisfied from the evidence that
confidential
relations, as the Court has defined
confidential relations to you, existed between Charles Rabon
Burgess and his sister, Mrs. Agnes Little, and if you are
further reasonably satisfied from the evidence that Mrs.
Agnes Little, directly or indirectly, was active in writing
the will or in securing witnesses to the will or in getting
the will executed, then the law raises the presumption that
the will was obtained by undue influence and casts the burden
on Mrs. Agnes Little to prove to your reasonable satisfaction
that the will was not produced by undue influence, either
directly or indirectly."
"12.
The Court charges you, gentlemen of the jury, that it is not
the means employed so much as the effect produced which must
be considered in determining whether undue influence has
contributed to the making of the will of Mr. Burgess, for
though the influence exerted over him, if any, was such as,
if applied under ordinary circumstances, or exercised over
persons of ordinary powers of resistance, would be regarded
as innocent, yet, if in this particular case it resulted in
the making of a will contrary to Mr. Burgess' desire, it
amounted to undue influence."
"16.
The Court charges you that if you believe from the evidence...
