McBride v. Sullivan

• Decision Date: 06 February 1908
• Citation: 155 Ala. 166,45 So. 902
• Parties: MCBRIDE v. SULLIVAN.
• Court: Alabama Supreme Court

45 So. 902

155 Ala. 166

MCBRIDE v. SULLIVAN.

Supreme Court of Alabama

February 6, 1908

Appeal from Probate Court, Mobile County; Price Williams, Jr. Judge.

Application by George J. Sullivan, executor, for the probate of the will of Joseph Hastings. From a decree admitting the will to probate, Nannie McBride, contestant, appeals. Reversed and remanded.

George J. Sullivan filed for probate the will of Joseph Hastings. Under the terms of the will he was made the executor of said will, which directed that the debts of decedent be paid and that all of his property of every kind and description should go to his nephew, Warren Hastings. Nannie McBride, who alleges that she is the daughter and only heir at law of Joseph Hastings, and would be the sole heir of his estate if he had died intestate, filed a contest on the ground that at the time of the making of said will the said Joseph Hastings was not of sound mind and was mentally incapable of making any disposition of his property when the will was made. Issue was tendered as set out above, and upon a submission of the cause to a jury a verdict was rendered declaring the instrument in writing to be the last will and testament of Joseph Hastings. The exceptions to evidence sufficiently appear in the opinion.

The following charges were given at the request of the proponent:

"(1) The court charges the jury in this case that, if any theory consistent with the validity of the will can be suggested which appears to them to be as probable as the theory on which the contention for the invalidity is based, the will as presented must be maintained, and the jury should find that said instrument is the last will and testament of Joseph Hastings, deceased.

"(2) It is not necessary to the validity of the will of Joseph Hastings, propounded for probate, that he should, at the time that he executed it, have been in the possession of his full, unimpaired mental faculties. It is sufficient if he had mind and memory enough to know what property he possessed, and remembered the name of the beneficiary therein and his relationship, and to understand the disposition of his property he was making by the will."

"(4) If the testator was at the time wholly insane, so as not to know the subject-matter under discussion, but at other times had a sufficient mental capacity to understand and know what he was doing, then the burden is upon the contestant, in order to defeat the probate of the will, to show that at the particular instant when the will was executed the testator did not have sufficient mental capacity to know and understand what he was doing."

"(8) The burden is upon the contestant to reasonably satisfy the jury that at the time that Joseph Hastings married Mrs. Tabitha Scott that he was the reputed father of contestant, and if the evidence fails to reasonably satisfy them of this fact they ought to find in favor of the proponent of the will.

"(9) The court charges the jury that if the contestant, Mrs. Nannie McBride, has failed to reasonably satisfy them by a preponderance of the evidence that at the time of his marriage to Tabitha Scott Joseph Hastings was the reputed father of Tabitha's daughter Nannie, then, if the jury believe from the evidence that the paper propounded as the will of Joseph Hastings was signed by him, or some person in his presence and by his direction, and was attested by two witnesses in his presence, who subscribed their names thereto as witnesses, then the jury should return their verdict that said paper is the will of Joseph Hastings, deceased.

"(10) If the jury are reasonably satisfied from the evidence that the testator in May, 1906, directed his attorney to draw his will appointing such attorney as executor without bond and giving his entire estate to the testator's nephew, Warren Hastings, and on the day of the execution of his will remembered that he had given such instructions through his attorney, and asked him if he had drawn the will, and to bring it to him for execution, and that the attorney at once brought it to him for execution, and the testator then directed him to get certain named persons, who were friends of the testator, as witnesses, but subsequently consented to the substitution of other witnesses, and immediately thereafter executed the instrument propounded for probate, then these facts of themselves raise a strong presumption that the testator, at the time he executed the will, had full capacity to do so."

McAlpine & Robinson, for appellant.

Gregory L. & H. T. Smith, for appellee.

SIMPSON J.

This is an appeal by the contestant, in a proceeding in the probate court to admit to probate the will of Joseph Hastings, deceased. The point is made by the appellee that, as the bill of exceptions was not signed within 20 days and the bill of exceptions does not show that the time was extended by the judge in writing, it cannot be considered. This point is not well taken, as the record states that the order extending the time was made by the judge, and sets out the order, as made, extending the time until May 2, 1907, and the certificate of the judge to the correctness of the record specifically enumerated, among other matters of record, the decree "allowing further time for filing bill of exceptions."

The first assignment of error insisted on by the appellant is No. 8, to the action of the court in sustaining the objection to the question to the witness McBride as to whether she addressed the letter to Hastings as she always spoke to him, and, if not, why. This witness had been examined in chief, and on cross-examination had been asked if a letter shown to her was written by her, which she answered in the affirmative, after which she was further examined on redirect examination, and she had also testified as to what she usually called Hastings; and on the next day she was recalled, when this question was propounded to her. The letter does not appear in the record. It rested within the discretion of the court as to whether any further examination should be permitted on that subject.

The...