Ross v. Washington, 3 Div. 194

• Decision Date: 07 January 1937
• Docket Number: 3 Div. 194
• Citation: 171 So. 893,233 Ala. 292
• Parties: ROSS v. WASHINGTON.
• Court: Alabama Supreme Court

171 So. 893

233 Ala. 292

ROSS v. WASHINGTON.

3 Div. 194

Supreme Court of Alabama

January 7, 1937

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Petition of R.A. Ross to probate the will of George E. Newstell deceased, contested by William M. Washington. On transfer from the probate court to the circuit court there was judgment sustaining the contest and denying probate of the will, from which proponent appeals.

Reversed and remanded.

Hill Hill, Whiting & Rives, of Montgomery, for appellant.

Blakey, Blakey & Levin and Thos. E. Martin, all of Montgomery for appellee.

ANDERSON Chief Justice.

It is well settled by the decisions of this court that upon the contest of a will upon the ground of undue influence the quo modo need not be set out, yet it is necessary to name the person or persons who exerted the undue influence. Daggett v. Boomer, 210 Ala. 673, 99 So. 181, and cases there cited. In fact, the trial court seems to have recognized this well-settled principle by sustaining the demurrer to those grounds of contest that did not conform therewith.

The trial court erred in giving contestant's charge Z. It did not conform to the law or the issues presented by the pleading. True, the Daggett Case, supra, was reversed because of a failure of the trial court to sustain the demurrer to the contest, but the court also considered and discussed certain charges given the contestant and pointed out that they possessed the same defect as charge Z in the present case. See charges 3 and 9 given for the contestant in the said Daggett Case.

Charge X, given for the contestant, could have well been refused as singling out and giving undue prominence to a part of the evidence. Moreover, we think the trial court erred in refusing the proponents requested charge 7. The contest as finally amended and submitted to the jury charged the fraud or undue influence to Elizabeth Drake, yet the proof failed to establish the charge as to her. Indeed, counsel for the appellee in brief, in effect, concede that the charge as to undue influence was not established. Quoting from brief "The only real question that the jury considered or could have considered was whether or not the testator possessed said testamentary capacity." We agree that that was the only question that should have been considered, but cannot agree that it was the only question considered by the jury, as the trial court permitted the question of undue influence to go to the jury and there was a general verdict finding for the contestant on the issues presented. Had the...