Mathews' Adm'r v. Forniss

• Decision Date: 18 December 1890
• Citation: 91 Ala. 157,8 So. 661
• Court: Alabama Supreme Court
• Parties: MATHEWS' ADM'R v. FORNISS ET AL.

8 So. 661

91 Ala. 157

MATHEWS' ADM'R v. FORNISS ET AL.

Supreme Court of Alabama

December 18, 1890

Appeal from chancery court, Wilcox county; THOMAS W. COLEMAN Chancellor.

Bill by Medora Mathews' administrator against Rebecca E. Forniss and others, to contest the validity of the will and of certain deeds executed by George W. Mathews, deceased. There was a decree for defendants, and complainant appeals.

W A. Gunter, R. Gaillard, Sumter Lea, and P Horn, for appellant.

Cumming & Miller, Jones & Jones, and Brutus Howard, for appellee.

STONE C J.

George W. Mathews inter-married with Lucy Mayhew, April 9, 1873. Within a little more than one month afterwards he, by deeds, some of them to a trustee, and one of them to her directly, conveyed his entire real estate in such manner as that if the said Lucy survived him, and the deeds were upheld, his estate, at his death, would inure to her benefit. His real estate was of relatively large value, and his personal property of but little value. He was an old man, and childless, and she survived him some three months, and died without issue. His next of kin were one niece, Medora Mathews, three nephews, her brothers, and one great-niece. These were the children and grandchild of two of his brothers, whose deaths preceded his, were his next of kin, and would inherit his estate, if he died intestate. On May 25, 1878, George W. Mathews executed what purported to be his last will and testament, attested by three subscribing witnesses, and therein devised and bequeathed his entire estate of every description to his wife, Lucy Mathews, and constituted her sole executrix, to qualify without bond. On July 21, 1880, the said George W. Mathews died, not having changed or modified his testamentary disposition in any respect. This will was duly propounded for probate by Mrs. Mathews, the executrix, and on September 20, 1880, the execution of the will was duly proven in the probate court by the subscribing witnesses, and the will was admitted to probate and to record. On August 30, 1880, Mrs. Lucy Mathews executed what purported to be her last will and testament, attested by two subscribing witnesses, by which she made two small bequests to friends not related to her, and devised the whole residue of her estate to Rebecca E. Mathews, a distant relative of the said George W. Mathews, but not of the next of kin, entitled to share in his estate. Rebecca E. Mathews was named as executrix of this will, and relieved of giving bond as such. Lucy Mathews died October 15, 1880. Her will was duly probated in the probate court, November 16, 1880. Medora Mathews, one of the next of kin of George W. Mathews, entitled, as such, to share in his estate if his will be invalid, filed the bill in this case, August 17, 1885. The object of the bill was and is to contest the alleged will of the said George W. Mathews on two grounds: First, that at the time of the execution of the alleged will the said testator was not of sound, disposing mind and memory. The Second ground is that the said instrument is not the will of the said George W. Mathews, because it was procured to be executed by undue influence, dominating his will, exercised by said Lucy Mathews and Rebecca E. Mathews, one or both of them. Each of these charges was denied, and thus the issue in this case was formed.

It should be stated here that the bill of Medora Mathews not only contested the said will, but it assailed, on the same grounds, the several deeds made by the said George W. Mathews in 1873 to and for the use and benefit of the said Lucy. A vast volume of testimony was taken on each side, but, when the case was called for trial, some of the commissions and interrogatories sued out by complainant had not been returned executed. This was at the January term, 1887, of the chancery court. On a motion by complainant for a continuance, it was ordered, partly by direction of the court, and partly by the consent of the solicitors, as we infer, that the cause be entered as submitted; but certain days were allowed within which to bring in additional testimony, when the testimony was to be published by order of the register, a note of the testimony taken, and the file forwarded to the chancellor for consideration and decree in vacation. Nothing was said by any one relating to a trial by jury. A decretal order was then entered by the chancellor, from which we make the following extracts: "And now, upon motion and suggestion of counsel for defendants, and of the court's own motion, it is adjudged and decreed that said cause be continued, and the same shall not be continued, nor the defendants put upon their said admissions as to the testimony of said last-named witnesses, except upon the following conditions, to-wit: Complainant has twenty days from the adjournment of this court in which to get in the testimony of all the witnesses in her behalf, to whom she now has interrogatories in the hands of commissioners, or where commissions have been returned without execution; and, when such testimony is received by the register, it shall be used by complainant at the hearing of this cause against defendants, instead of the statements of complainant, in her application for continuance, as to what she expects to prove by them. *** And thereupon came the parties defendants, by their counsel, and accepted said terms, and comes the complainant by her counsel, and accepts said terms. Whereupon the court ordered the trial to proceed. On motion of defendants, it is ordered that the testimony now in be published, but without prejudice to the testimony to come in hereafter. And the cause is submitted by the parties for decree upon the pleadings and proof hereafter to be noted by the parties within the said twenty days; and, the term of the court having nearly expired, the cause is held for decree in vacation." This order was made January 12, 1887. It is not shown at what time the file reached the chancellor. On June 11, 1887, the chancellor, in vacation, made a decretal order, from which we make the following extract: "At the term of the court when the submission was ordered neither party applied for a jury. When the file reached me the complainant insisted upon an issue before a jury. I do not think, as a matter of right, the complainant can demand a jury now, after being silent as to that on the original submission. But a careful examination of the pleadings and the voluminous testimony convinces me that this is a proper case to be tried by a jury; especially when the application is made by either party before the court is called on to enter upon the investigation of the questions of fact at issue. It is therefore adjudged, ordered, and decreed that an issue be made up between the parties, setting forth clearly the true questions of fact to be tried." He then made an order for drawing and summoning a jury to attend at the next term of the chancery court, and for procuring the attendance of witnesses. Following is the concluding sentence of his order: "all other questions are reserved." He made no order setting aside the submission. The foregoing orders were made by Chancellor MCSPADDEN, of the north-eastern chancery division. All subsequent proceedings were had before another chancellor.

It was a recognized feature of equity jurisprudence, alike in England and in this country, that whenever from a conflict of testimony, or where inferences were required to be drawn, the chancellor desired the verdict of a jury on any disputed material question of fact, it was within his discretion either with or without the request of counsel, to submit such question to the consideration of a jury. The purpose of such submission, it was sometimes said, was that the judgment of the chancellor might be informed by the jury's finding. It was also sometimes said that the object was to inform the conscience of the chancellor. Adams, Eq. 376; 1 Story, Eq. Jur. § 72. The statutes of this state make provision for such practice and such issue. Code 1886, § 3585 et seq. Issues thus ordered, and proceedings under them, are governed by principles essentially different from those which obtain in trials of common-law suits. In their trial, unlike the proceedings in common-law suits proper, no question can be reserved by bill of exceptions for revision in an appellate court. And the finding of the jury is not conclusive upon the judgment or conscience of the chancellor. He may disregard the jury's finding, and render his decree in direct antagonism to it. He may also, if not satisfied with the finding, re-refer the issue to...