Moore v. Heineke

• Decision Date: 05 November 1898
• Citation: 119 Ala. 627,24 So. 374
• Parties: MOORE v. HEINEKE.
• Court: Alabama Supreme Court

24 So. 374

119 Ala. 627

MOORE v. HEINEKE.

Supreme Court of Alabama

November 5, 1898

Appeal from probate court, Jefferson county; M. T. Porter, Judge.

Application by John J. Moore to probate the will of Julia E. Gleason. Contest by Grace T. Heineke. There was a judgment for contestant, and proponent appeals. Reversed.

On the 1st day of August, 1894, John J. Moore, who is the appellant as proponent, filed in the probate court of Jefferson county Ala., a petition in writing, signed and verified by his oath accompanied by a paper writing, which purported to be the last will of Julia E. Gleason, and in which the said Moore was named as executor, praying that it might be probated as her will. Under the will filed for probate, the testator bequeathed all of her property to her husband, John F Gleason. To the admission of this paper to probate as the last will and testament of Julia E. Gleason, deceased, the appellee, Grace T. Heineke, filed a contest, in which there were five separate specifications or causes of contest. The substance of these five specifications is sufficiently stated in the opinion. The proponent demurred to the third ground of contest upon the following grounds: "(1) Because it presents no issue of facts or law which avoids said will. (2) Because the facts stated in said third ground are double doubtful, and uncertain, in this: it states two distinct and separate grounds of contest in one and the same plea or ground of contest." To the fifth ground, the proponent demurred upon the following grounds: "(1) It presents no issue of fact which, if true, would invalidate said will. (2) Because the facts stated do not show that said will was obtained by fraud or undue influence. (3) Because, even though John F. Gleason was not the lawful husband of Julia Eva Gleason, it does not show the said instrument was not her legal will. (4) The fact stated in said fifth ground is double, doubtful, and uncertain, in this: it states two distinct and separate grounds of contest in one and the same plea or ground of contest." These demurrers were overruled, and the proponent joined issue with the contestant on the several grounds numbered 1, 2, 3, and 5. The contestant took the deposition of several witnesses, and, before entering upon the trial, the proponent filed motions to suppress the depositions of said several witnesses, upon the grounds, among others, that the clerk of the probate court who issued the commission to examine said witnesses failed to prescribe the notice to be given proponent or his attorney of the time and place of taking said deposition, and, further, that, at the time the proponent filed his cross interrogatories to said witness, he filed a written demand for said notice to be given him of the time and place of the examination of said witnesses, which notice the clerk of the probate court failed to give him. Upon the hearing of the motion to suppress the deposition, proof was made that such demand in writing was filed, and that the clerk failed to prescribe the length of time that notice should be given, or to order the commissioner to give the notice asked for to proponent, and that no notice was given to proponent. The court overruled the motion to suppress the deposition, and to this ruling the proponent duly excepted. The material facts of the case are sufficiently stated in the opinion. In the deposition of the witness George Spreadbury and that of Michael Bolan, each of these witnesses testified to certain statements which had been made by one Nellie Gleason, subsequent to the disappearance from her residence of John F. Gleason, to the effect that said J. F. Gleason was the husband of said Nellie Gleason. The proponent objected to these several statements, and moved to exclude them from the deposition of each of the witnesses. The court overruled the objection, and refused to exclude such statements, and to this ruling the proponent duly and separately excepted. The witness George Spreadbury, who is shown to have been an agent of an accident insurance company in which company J. F. Gleason had taken out a policy of insurance, testified, among other things, as follows: "On Saturday previous to Gleason's disappearance, he called at my office, and asked me if everything was paid up, so that the beneficiary, Mr. Gleason's wife, would have no trouble in getting her insurance in the event any accident should happen, at the same time paying me the amount due, making a second request as to whether the same was all right." The proponent objected to this portion of the witness' deposition, and moved to exclude it, upon the ground that it was illegal, immaterial, and incompetent testimony. The court overruled the objection and motion, and to this ruling the proponent duly excepted.

Upon the introduction of all the evidence, the proponent requested the court to give to the jury the following written charges and separately excepted to the court's refusal to give each of them as asked: (1) "The court charges you that the contestants have failed to prove the averments made in the ground of contest numbered three, and that upon that ground your verdict must be in favor of the proponent." (3) "That the fifth contest contains three grounds,-want of testamentary capacity, and fraud, and undue influence; and that, in order to entitle the contestants to a verdict under that, it is necessary for the contestant to have satisfied the jury of the existence of each and all of these." (4) "The fifth ground of contest avers conjointly that the testatrix was of unsound mind, and also that the will was procured by fraud and undue influence; and that having so averred in the fifth ground of contest, unless the contestants have satisfied the jury that the testatrix was at the time of making her will mentally so unsound as to be incapable of making a valid will, was superinduced both by fraud and undue influence, then the court charges you that your verdict must be in favor of the proponent." (5) "The court charges you that under the ground of contest numbered three, in order to make out their case, the burden of proof is upon the contestants to establish to the satisfaction of the jury by the evidence, both that the will which is offered for probate was the result of fraud and undue influence; that if the evidence fails to establish that there was fraud, but fails to establish that there was any undue influence, then the jury must find in favor of the proponent under the third ground of contest." (6) "Under the issues in this case which allege fraud and undue influence, the burden of proof is upon contestants to prove the issue as presented; and, unless the evidence satisfies the jury that there was both fraud and undue influence, the verdict of the jury upon such issue must be against the contestants and for the proponent." (7) "There is no evidence on which the jury can find that the will of Julia E. Gleason is procured by any undue influence; and upon the question of undue influence the court instructs the jury that they must find in favor of the proponent." (8) "The court instructs the jury that they must find a verdict in favor of the proponent on the issue presented by the third ground of contest." (9) "The court instructs the jury that the third ground of contest avers both fraud and undue influence, and that, having averred that the will was procured by fraud and undue influence, the contestants must satisfy the jury, before the jury can find in favor of the contestants on the third ground, both fraud and undue influence existed." (31) "That there is no evidence to sustain the charges of undue influence, and that, if the jury believe the evidence, they must find a verdict in favor of the proponent upon the allegation of undue influence." (26) "That there is no evidence upon which the jury can find a verdict in favor of the contestants on the ground that the testatrix was of unsound mind to such an extent that she could not make a valid will on the 5th day of July, 1894." (27) "That, upon the issue of testamentary incapacity and unsoundness of mind, the verdict of the jury must be in favor of the proponent." (34) "The court charges you that under the statute law of Kentucky, which has been introduced in evidence, that no amount of cohabitation between John F. Gleason and the woman Nellie Jones, called Nellie Gleason, either alone or coupled with reputation, in the state of Kentucky, that they were husband and wife, or admissions made by either of them in that state that they were married, could make them lawfully married; and it cannot be considered by the jury as evidence, in making up your verdict on that subject, whether or not John F. Gleason was already a married man when he married Julia E. Weiznecker." (33) "The court instructs the jury that they must not, in ascertaining whether or not John F. Gleason was ever married to Nellie Jones in the state of Ohio, regard or consider any testimony of any witness that said Gleason and said Nellie lived together as husband and wife in the state of Kentucky, or that they represented themselves to be husband and wife while they so lived in Kentucky, or that while so living in Covington, Ky., were reputed to be husband and wife, and so regarded by their neighbors in Kentucky." (14) "The court charges you that cohabitation and living together as, and recognizing each other as, husband and wife, speaking of each other as husband and wife, is only presumptive evidence of actual marriage, and that such presumption is rebutted by the fact, if it is a fact, of subsequent permanent separation, without any apparent cause after the marriage, if there was a marriage, of John F. Gleason with Julia E. Weiznecker shortly after the separation." (16) "In making their will, the law does not require that...