Schieffelin v. Schieffelin

CourtSupreme Court of Alabama
Writing for the CourtHARALSON, J.
Citation127 Ala. 14,28 So. 687
PartiesSCHIEFFELIN v. SCHIEFFELIN.
Decision Date05 June 1900

28 So. 687

127 Ala. 14

SCHIEFFELIN
v.
SCHIEFFELIN.

Supreme Court of Alabama

June 5, 1900


Appeal from probate court, Baldwin county; Charles Hall, Judge.

Application by William L. Schieffelin for the probate of the will of Cornelia J. Schieffelin, deceased. From a decree admitting the will to probate, Lee S. Schieffelin appeals. Reversed.

The proceedings in this case were had upon an application of William L. Schieffelin to have admitted to probate what purported to be the last will and testament of Cornelia J. Schieffelin, deceased.

William L. Schieffelin was a son of the testatrix, Cornelia J. Schieffelin, and was the only child left surviving her. The testatrix had two other children, Mark and Lee Schieffelin. Mark died unmarried and without issue many years before the death of the testatrix, and Lee Schieffelin died prior to the testatrix, and left surviving him a wife and three children, all of whom were minors. Upon the filing of the application for the probate of the will, Lee Stark Schieffelin, one of the children of Lee Schieffelin, deceased, and grandchildren of the testatrix, filed a contest of the probate of said will by and through his guardian. The issues presented upon his contest were, whether what purported to be said last will and testament of Cornelia J. Schieffelin was duly executed as required by law. (2) Whether the said Cornelia J. Schieffelin, deceased, was of sound and disposing mind at the time of making said will. (3) Whether the making of said will was obtained by undue influence or by fraud. At the time of filing the contest, the contestants made application that the said issues be tried by a jury and in accordance with said application a jury trial was ordered.

The bill of exception contains the following recitals as to the organization of a jury for the trial of the issues presented: "After the sheriff had called the venire summoned to try the issues in this cause and thirteen jurors answered to their names, the court asked if any of the jurors were related to William L. Schieffelin, or to Mrs. Cornelia J. Schieffelin, deceased, or to the defendant in this cause, or had they made up their minds in regard to this matter. And thereupon, one of the jurors, Mr. Oswalt, stated to the court as follows: 'I do not know whether this will be suitable. I have had a similar case of my own. I might say I have a little prejudice about it in a case of this kind.' And thereupon the court asked the juror the following question: 'Do you think your prejudice will be so great as to bias your verdict?' And said juror answering said: 'To some extent we are all more or less biased by prejudice. Of course I would be governed by the evidence.' And thereupon the proponent insisted that said juror was incompetent as shown by his own statement; and the contestant insisted that he was not, and asked the ruling of the court. And thereupon the court ruled said juror was incompetent and excused him, and the contestant then and there duly excepted to the action of the court in excusing said juror. Thereupon the jury consisting of twelve jurors ascertained by the court to be competent was put upon the proponent to pass upon; and the proponent thereupon challenged four of the twelve peremptorily, leaving eight jurors seated. And thereupon the proponent claimed and moved the court to require the contestant to pass upon the eight jurors left in the jury box aforesaid before making an order to the sheriff to complete the jury under the law, which motion the contestant resisted, claiming the right to have a full panel of twelve jurors presented to him before he should be required to exercise any of his peremptory challenges; but the court ruled that the contestant must pass upon the eight jurors first, and granted the motion of the proponent requiring him to pass upon said jurors. And to this action of the court the contestant then and there duly excepted."

The will which was sought to be probated was signed by Cornelia J. Schieffelin making her mark, and was witnessed by Frank S. Stone and George B. Schieffelin. Under the provisions of the will, the testatrix bequeathed to each of the three children of Lee Schieffelin the sum of $100, and all the residuary of her estate, both real and personal, of every kind, nature and description she wished to devise and bequeath to William Schieffelin. William Schieffelin was nominated executor without bond.

It was shown that Cornelia J. Schieffelin, the testatrix, had, for several years prior to her death, suffered from pulmonary consumption and that she had been confined to her bed for several weeks prior to her death; that at the time of her death and for several years prior thereto she lived with her son, William Schieffelin. The will was executed on November 13, 1891, which was the date of her death.

George B. Schieffelin, the son of William Schieffelin and the grandson of Cornelia J. Schieffelin, as a witness for the proponent, testified that, on the morning of the day the testatrix died, he was in her room, and, during a conversation which his grandmother had with him, she stated that it was her intention that her son William, the father of witness, should have all of her property; stating at the time that the other children of herself and her deceased husband had been better provided for by the will of their father than had William Schieffelin, and that she had given both Mark Schieffelin during his life and to Lee Schieffelin during his life, and to the latter's wife and children after his death, all that they were entitled to or could ask for him. The witness further testified that he then stated to his grandmother that if she wished her property to be so disposed of, it would be necessary for her to make a will providing for such disposition of her estate; that upon Cornelia J. Schieffelin replying that she did not consider it necessary as everybody knew her wishes in the matter, the witness stated that his uncle Lee Schieffelin had children who would be entitled to share in her estate, and that it was only by a will her son William Schieffelin would be entitled to her property; that thereupon his grandmother asked him if he could get a lawyer to write a will for her, and upon being told that he could get Frank S. Stone, Esq., she instructed him to bring said Stone to her; that this conversation was between 10 and 12 o'clock on the morning of the 13th of November, and that in accordance with his grandmother's wishes, he went to the home of said Stone, who resided between one and a half, and two miles from the residence of William Schieffelin: that he told Stone that his grandmother wished him to write her will for her and Stone came back to the house with him; that he and Stone went into the room where his grandmother was lying in bed; that there was no other person in the room with Stone; that Stone then asked Cornelia J. Schieffelin how she wished to dispose of her property by her will, and upon being told that she wished to give $100 to each of the children of Lee Schieffelin and all the rest of her property both real and personal to William Schieffelin, Stone sat down in the room and wrote the will according to her directions, which is the paper offered to be probated; that after the will was prepared Stone read it over to Cornelia J. Schieffelin, and she said that it was in accordance with her wishes; that Cornelia J. Schieffelin then asked Stone if he could not sign her name for her, and if he, Stone, and the witness George B. Schieffelin could not attest the signature; that thereupon Stone signed the testatrix's name to the will, and she made her mark thereto, and in the presence of the testatrix Stone and the witness Schieffelin signed the will as attesting witnesses. This witness further testified that the will was signed about half past 3 o'clock or 4 o'clock in the afternoon of November 13th, and that the testatrix died a few minutes after 5 o'clock; that at the time of the signing of the will she was of sound mind, and gave directions as to the disposition of her property in a way to indicate that she knew what she was doing; that the will disposed of her property in accordance with her desire. The witness further testified that after the signing of the will he and Frank S. Stone left the room and went in another part of the house, where his father William Schieffelin was; that a few minutes thereafter, the witness returned to the room of his grandmother, where he found his mother, and they remained in the room until Cornelia J. Schieffelin died, and that during that time he and his mother conversed with Cornelia J. Schieffelin and she showed no mental weakness up to a few moments before she expired.

William Schieffelin, the proponent, testified that in the morning of the day his mother died, she also stated to him that she wished him to have all of her property after her death; that he thereupon told her that unless she made a will so providing for the disposition of her property, the children of his deceased brother, Lee Schieffelin, would share in her estate; that in response to this, Cornelia J. Schieffelin replied that she had given to Lee Schieffelin and his children all they were entitled to, and that his father had provided for Lee and Mark more bountifully than he did for William, and that therefore her desire was that he, William, should have the property she left. William Schieffelin further testified that he knew nothing of the conversation between the deceased and his son, George Schieffelin, and that he had nothing to do with George going to get Mr. Stone in order to get him to prepare the will, and did not induce his mother to send for said Stone, nor did he, in any way, persuade her to make the will as it was written.

Frank S. Stone, a witness for the proponent, testified to the circumstances of the making of the will substantially as did George Schieffelin. On cross-examination he was asked, if he...

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49 practice notes
  • Lewis v. Martin, 6 Div. 961.
    • United States
    • Supreme Court of Alabama
    • October 18, 1923
    ...v. Higginbotham, 106 Ala. 314, 17 So. 516. Given charge R was in accord with the announcements contained in Schieffelin v. Schieffelin, 127 Ala. 14, 38, 28 So. 687, discussing a like charge, there numbered 70, using the words "did not have testamentary capacity." This case has not been over......
  • Howell v. Howell, 4 Div. 19.
    • United States
    • Supreme Court of Alabama
    • February 8, 1923
    ...purpose to dispose of his property by will. Seale v. Chambliss, 35 Ala. 19; Hughes v. Hughes, 31 Ala. 519; Schieffelin v. Schieffelin, 127 Ala. 14, 36, 28 So. 687. The memorandum of date of "Mar. 20, 22," which we judicially know to mean March 20, 1922, after the will was signed, was compet......
  • Chatom v. State, 1 Div. 798
    • United States
    • Alabama Court of Criminal Appeals
    • May 16, 1978
    ...defense counsel within the discretion of the trial court. Jones v. State, 22 Ala.App. 141, 113 So. 478 (1927); Schieffelin v. Schieffelin, 127 Ala. 14, 28 So. 687 (1900); Noel v. State, 161 Ala. 25, 49 So. 824 (1909); Turner v. State, 25 Ala.App. 21, 140 So. 445 (1932); Peyton v. State, 40 ......
  • Jackson v. Leggett, 33706
    • United States
    • United States State Supreme Court of Mississippi
    • May 29, 1939
    ...and not simply misleading, no subsequent explanation or qualification made by the court can cure the defect. Schieffelin v. Schieffelin, 28 So. 687; May v. Culpepper, 172 So. 336. We submit, even in cases where instructions are sound as to one theory, where it excludes another on which reco......
  • Request a trial to view additional results
49 cases
  • Lewis v. Martin, 6 Div. 961.
    • United States
    • Supreme Court of Alabama
    • October 18, 1923
    ...v. Higginbotham, 106 Ala. 314, 17 So. 516. Given charge R was in accord with the announcements contained in Schieffelin v. Schieffelin, 127 Ala. 14, 38, 28 So. 687, discussing a like charge, there numbered 70, using the words "did not have testamentary capacity." This case has not been over......
  • Howell v. Howell, 4 Div. 19.
    • United States
    • Supreme Court of Alabama
    • February 8, 1923
    ...purpose to dispose of his property by will. Seale v. Chambliss, 35 Ala. 19; Hughes v. Hughes, 31 Ala. 519; Schieffelin v. Schieffelin, 127 Ala. 14, 36, 28 So. 687. The memorandum of date of "Mar. 20, 22," which we judicially know to mean March 20, 1922, after the will was signed, was compet......
  • Chatom v. State, 1 Div. 798
    • United States
    • Alabama Court of Criminal Appeals
    • May 16, 1978
    ...defense counsel within the discretion of the trial court. Jones v. State, 22 Ala.App. 141, 113 So. 478 (1927); Schieffelin v. Schieffelin, 127 Ala. 14, 28 So. 687 (1900); Noel v. State, 161 Ala. 25, 49 So. 824 (1909); Turner v. State, 25 Ala.App. 21, 140 So. 445 (1932); Peyton v. State, 40 ......
  • Jackson v. Leggett, 33706
    • United States
    • United States State Supreme Court of Mississippi
    • May 29, 1939
    ...and not simply misleading, no subsequent explanation or qualification made by the court can cure the defect. Schieffelin v. Schieffelin, 28 So. 687; May v. Culpepper, 172 So. 336. We submit, even in cases where instructions are sound as to one theory, where it excludes another on which reco......
  • Request a trial to view additional results

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