Sikes v. King, 4 Div. 582.

• Decision Date: 07 April 1932
• Docket Number: 4 Div. 582.
• Citation: 224 Ala. 623,141 So. 555
• Parties: SIKES v. KING ET AL.
• Court: Alabama Supreme Court

141 So. 555

224 Ala. 623

SIKES v. KING ET AL.

4 Div. 582.

Supreme Court of Alabama

April 7, 1932

Rehearing Denied May 19, 1932.

Appeal from Circuit Court, Crenshaw County; A. E. Gamble, Judge.

Petition of C. T. King and W. A. Hicks for probate of the will of Mrs A. O. King McCormick, deceased, contested, in equity, by Dora Sikes. From a decree for proponents, contestant appeals.

Affirmed.

J. O Sentell, of Luverne, and Powell & Hamilton, of Greenville for appellant.

Frank B. Bricken and C.J. Kettler, both of Luverne, for appellee.

FOSTER J.

Appellant contends that the will is void for uncertainty in the first paragraph because the names of the beneficiaries are not sufficiently designated, and because their respective shares are not stated. But this court has held that, if such contentions were well founded, they would not support the contest of a will which has other valid testamentary provisions, such as the appointment of an executor, and when it is duly executed without fraud, undue influence, and during a sane period. Conoway v. Fulmer, 172 Ala. 283, 54 So. 624, 34 L. R. A. (N. S.) 963; McKissack v. Ashurst, 220 Ala. 576, 126 So. 636.

We do not wish to be understood as intimating whether the clause referred to is valid or not. We prefer that the proper interpretation of the will shall be determined when duly presented, and both parties and the trial court shall be free to offer and consider such evidence as shall pertain to it. The trial court did not refer to that contention in his judgment, and we pretermit its consideration.

The court held that decedent executed the will, that it was genuine, and, on the issues of her sanity, undue influence, fraud, and misrepresentation, found them all in favor of proponents, and ordered the will so propounded to be probated. The trial was by the court without a jury on evidence taken orally before him.

There was abundance of evidence to support the finding on the issue of sanity. It was not against the great weight of the evidence such as to require us to set it aside in that respect. A discussion would serve no good purpose.

On the subject of undue influence: C. T. (Tema) King was the confidential agent of decedent on whom she seemed to rely. She was an old lady, twice a widow, with no children. Tema King was closely related to her first husband, was a beneficiary in his will, and if the first clause of the will of this testatrix is not void for uncertainty, and the will introduced in evidence is the one to which it refers, he will claim to be a beneficiary under its terms by reference to the beneficiaries in the will of the first husband of decedent. He was named an executor without bond. The two executors were given power to sell all the property, etc.

Under such circumstances, we think Tema King...