Mullen v. Johnson

• Citation: 47 So. 584,157 Ala. 262
• Parties: MULLEN v. JOHNSON ET AL.
• Decision Date: 01 December 1908
• Court: Supreme Court of Alabama

47 So. 584

157 Ala. 262

MULLEN v. JOHNSON ET AL.

Supreme Court of Alabama

December 1, 1908

Appeal from Chancery Court, Dallas County; Thomas H. Smith Chancellor.

Action by Leonard D. Mullen against Thomas M. Johnson and others. From a decree for defendants, plaintiff appeals. Affirmed.

Tyson C.J., dissenting.

W. W Quarles and Pettus, Jeffries & Pettus, for appellant.

Mallory & Mallory, for appellees.

McCLELLAN J.

Annie M. Johnson died in August, 1901, childless, survived by her husband, Thomas M. Johnson, and the complainant, a brother, the only heir at law. The instrument contested, purporting to be a will and to have been executed on June 20, 1901, gave the entire estate of Mrs. Johnson to her husband. The grounds of contest are: First, want of testamentary capacity to make a will; second, undue influence exerted upon the alleged testatrix by Thomas M. Johnson, the husband, Henry B. Johnson, the brotherin-law of Mrs. Johnson, and Fannie M. Smith, or by some of these named. Upon the occasion of the execution of the contested instrument, Thomas M. Johnson executed a last will and testament in which Annie M. Johnson was the sole beneficiary. The determination of the issues thus made in the cause will be greatly simplified by the elimination, as must be done, of the influence of any contractual factor in the premises. Though the instruments executed by Mr. and Mrs. Johnson were mutual, there is no element of contract inhering in the respective actions of these persons. Either instrument was revocable and neither, in terms or as explained by fact, imports any consideration as an inducement to the execution of her or his purported will. Indeed, the solicitors for complainant do not insist that the arrangement, or action taken, was contractual inter vivos--capable of enforceable specific performance. Under these circumstances there can be no two opinions upon the proposition that the law applicable to the issues presented in the cause is only those rules of evidence and substantive law pertinent to testamentary instruments. In consequence the somewhat extended argument of the solicitors for complainant, that seems to seek the application to the stated issue of undue influence of the principles controlling the determination of such issues in cases of transactions inter vivos, cannot be considered for any purpose on this appeal. This instrument must stand or fall, upon the issues made, as a will, not as a contract.

The requisite mental capacity to make a valid will has been repeatedly defined by this court; and these words, taken from Taylor v. Kelly, 31 Ala. 72, 68 Am. Dec. 150, express the standard therefor as that standard has been consistently declared and maintained by our later adjudications: "If she [[testatrix] had memory and mind enough to recollect the property she was about to bequeath, and the persons to whom she wished to will it, and the manner in which she wished it to be disposed of, and to know and understand the business she was engaged in, she had, in contemplation of law, a sound mind; and her great age, bodily infirmity, and impaired mind would not vitiate a will made by one possessing such capacity."

The burden assumed by the contestant (complainant) to establish mental incapacity is not grounded upon a state of habitual insanity affecting Mrs. Johnson at or prior to June 20, 1901; but such incapacity is predicated, in the testimony for contestant, upon a condition of mind wrought by the use of narcotics, which, with the cancerous disease inflicting her, it is urged, affected to destroy the requisite mental capacity of Mrs. Johnson to make a valid disposition of her property. This condition, asserted to have produced the disqualifying result indicated, was necessarily "temporary or ephemeral in its nature," if present at any time prior to the execution of the instrument. No presumption of its continuance on that occasion can be indulged. O'Donnell v. Rodiger, 76 Ala. 222, 52 Am. Rep. 322. Indeed, from the testimony for the contestant, alone, it is apparent that the disease, in and of itself, though inflicting intense pain and causing swelling of the arm, breast, side, shoulder, face, and neck, did not result in any mental impairment or dethronement within the standard declared in the quotation from Taylor v. Kelly, supra. The whole insistence, then, resolves itself into the issue of fact whether the presumption of the soundness of Mrs. Johnson's mind, at the time the contested instrument was executed, has been rebutted upon the whole testimony in the cause. O'Donnell v. Rodiger, supra. Upon this issue more than two score witnesses were examined. Obviously we cannot enter upon a discussion of the entire record in this respect. We must content ourselves with a treatment in nature summary.

In a general sense the testimony for complainant and that for respondents is in irreconcilable conflict, though it must also be said that upon the specific point of the issue, viz., her mental status at the time of alleged execution, comparatively few of the whole number of the witnesses testify. On both sides the mental status of Mrs. Johnson, both before and after June 20, 1901, is the subject of opinions, favorable and unfavorable. For the contestant, many of his witnesses, while giving opinions opposed to her soundness of mind, evince unmistakable evidences of their opinions in that regard being unjustified by facts to which they testify. Some of them predicate their opinions on the mere fact that the stricken woman did not enter readily into conversations in progress about her, or, when under the influence of opiates and dozing therefrom, that she uttered incoherent or random expressions; and still others rest their opinions against her soundness of mind upon the asserted fact that Mrs. Johnson was in a stupor, from the use of narcotics, at least from the 17th to the 20th of June. These conditions might all very well exist at times and be wholly absent at other times--might very well prevail and yet when the sick woman was aroused, or the effect of the opiate had been spent, leave her with such an unclouded mind as that she could measure, in mental strength, up to the standard declared to be requisite in Taylor v. Kelly.

And, in this immediate connection, touching the effect of morphine upon the mental ability to make a valid will, it may be said that the testimony for contestant is notably obscure with respect to the mental capacity of Mrs. Johnson after being aroused from the languor caused by the opiate, or after the opiate had begun to wane in its palliating effect or had spent its power. Aside from these general criticisms of contestant's testimony, a reading of it cannot fail to induce the conclusion that several of his witnesses reached and entertained opinions of the mental unsoundness of Mrs. Johnson after the most casual observations of her. Apart from the question of admissibility of the opinions of such witnesses on the issue, these opinions could or should carry very little weight The law declares the standard of mental capacity requisite to make a valid will and the habits, infirmities, diseases, or mental stresses of one undertaking a testamentary disposition of property will not be suffered to deny efficacy to that effort, because of mental incapacity, if the proposed testator possessed, at the time he undertakes to act, the mental powers so clearly described in the quotation from Taylor v. Kelly Notwithstanding the stated conditions of hab it, disease, or the use of narcotics may be and are often serviceable as evidence in determining the presence, at the time of action, of the requisite mental ability to make a valid will, the issue still is and must be, not what afflicted the testator, leading possibly to a denial of the existence of his requisite willmaking mental power, but what was, on the occasion, his mental status to that end, and, if it reached the standard before defined, the habits, diseases, or use of narcotics to which he was subjected will not avail to defeat his testamentary hope.

The witnesses in this cause to whom must be given the credence due disinterested witnesses enjoying the best of opportunities to know that about which they testify are Dr Dubose, the physician who attended Mrs. Johnson twice daily until her death in August, and Miss Ford, the professional nurse who ministered constantly to Mrs. Johnson from early in the year 1901 to her death, except two weeks, spent in a visit away, in May of that year. These persons are witnesses to the contested instrument. That Dr. Dubose is a man and a practitioner of the highest standing is not even hinted to the contrary. From his testimony there appears no semblance of reason to doubt either its truth or the possession by him of skilled ability to reach and lucidly announce an opinion as to the soundness of Mrs. Johnson's mind when she executed this instrument. He was present when the execution was accomplished, not only in his capacity as man, but also that of physician, thoroughly acquainted with the testatrix, his patient. That he is an wholly disinterested witness is beyond dispute. Miss Ford enjoyed, in some respects, even better opportunity for observation of Mrs. Johnson's mental condition than did Dr Dubose, in this: She was more continually with her. The testimony of this witness is attempted to be shaken in credibility by the fact that Thomas M. Johnson was generous to her after the death of his wife. We cannot sanction that result. That Miss Ford was faithful and attentive, in the line of her duty, to her patient, is not, on this record, to be denied. That Thomas M. Johnson appreciated this service to his wife, to whom the evidence in the cause shows, beyond dispute, he was thoroughly devoted, was both natural and...