Stanley v. Sawyer

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, Justice.
• Citation: Stanley v. Sawyer, 237 Ala. 515, 187 So. 425 (Ala. 1939)
• Decision Date: 23 February 1939
• Docket Number: 7 Div. 520.
• Parties: STANLEY v. SAWYER.

187 So. 425

237 Ala. 515

STANLEY v. SAWYER.

7 Div. 520.

Supreme Court of Alabama

February 23, 1939

Rehearing Denied March 30, 1939.

Appeal from DeKalb County Court; J. D. Pope, Special Judge.

Petition of C. M. T. Sawyer to probate the will of J. P. Stanley deceased, contested by H. R. Stanley. From a judgment for proponent, contestant appeals.

Reversed and remanded.

Isbell & Beck and Scott & Dawson, all of Fort Payne, for appellant.

E. M Baker and L. L. Crawford, both of Fort Payne, and Goodhue &amp Lusk, of Gadsden, for appellee.

THOMAS Justice.

The appeal presents the question of whether or not the will filed in the probate court was, in fact, executed by J. P. Stanley, or under his direction. The contestant demanded a jury and the verdict was for proponent.

The facts of the execution of the will are stated by Mrs. Viola LeFurgey, a witness to and beneficiary under the alleged will, as follows:

"It was on the 7th day of October, 1933. The occasion which brought us to Fort Payne was the death of Mrs. W. M. T. Ware, Mr. LeFurgey's grandmother. We were attending her funeral. The time of day that we went to Mr. Stanley's home on October 7th was late in the afternoon. My husband went with me. After being in the home, the first thing that was said was that Mr. Stanley called us together. I was in the kitchen and Mr. LeFurgey was in the living room and Mr. Stanley was in the dining room. We both went into the room. I called my husband. After we got in the room, the three of us together with Mr. Stanley said this is a rather touching sad time--Mrs. Wear's death--and he said he had this paper, his will, he wanted us to sign in his presence. After telling us he wanted us to sign a paper or will, he signed the will. He got the will out of his desk. He went to the desk and got the will after he called us. He got the will from a desk or an old piece of furniture, he called it his desk, his business was there. My husband was there at the time he signed it. My husband signed it and then I signed it. We were both present and Mr. Stanley, all three present at the time he signed it and at the time we both signed it. After the instrument was signed, Mr. Stanley took it and put it back in his desk and the next time, I saw the paper was the following March or early Spring when my husband had it. He had it in his hand and it was at Irondale. My husband had prior to that time visited in Fort Payne and when he got back he showed me this paper. I looked at it and it was the same one that me and my husband and Mr. Stanley had signed. I later brought the will back to Mr. Stanley. It was in the Fall of 1934 when I brought it back to Fort Payne. I gave it to Mr. Stanley and Mr. Stanley said, 'I am going to return this to you before you return home.' I saw the paper the next day when I was preparing to go home. Mr. Stanley gave me the will and said 'Keep the will and send it in within thirty days after my death.' He said, 'Just keep it and say nothing until that time is up.' When he gave me the will, there was another piece of paper clipped to it. I took the will back home with me and put it in a safe place. I kept it in the home among my private papers. I kept it there until it was sent to Mr. Sawyer. It was thirty days after Mr. Stanley's death. In the meantime between the time of Mr. Stanley's death and the sending of the will to Mr. Sawyer I came to Fort Payne. I went to the funeral up North. My husband went with me. I came back to Fort Payne about thirty days after Mr. Stanley's death. I mailed the will from Chattanooga, Tennessee. Mrs. Kuhlo lives in Chattanooga, Tennessee. She is a relative of Mr. Stanley. She is mentioned in the will. I mailed the will in Chattanooga to Mr. Sawyer. While I was up there. * * * I went through Fort Payne going to Chattanooga. I went on the train. My baby went with me. No, my husband didn't go. I went on 42 and got in Chattanooga sometime about eleven o'clock in the day time. I did not see anybody that I know. I did not see Mrs. Kuhlo. Mrs. Kuhlo lives in Chattanooga. I was well acquainted with her. I did not prepare the envelope for mailing. Mr. John P. Stanley prepared it. I did not see him prepare it. He gave it to me. Mr. Stanley gave it to me when he gave me the will in the Fall of 1934. He had it addressed like that. I didn't see Mary Kuhlo nor her daughter when I was in Chattanooga. * * *

"I did not tell any person that I had a will but only that I knew there was will made. I told Mr. Sawyer and I told Mr. Beck that there was a will at one time made. I did not at the time I signed this will see Mr. Stanley write it. I did not see him use the typewriter. The will was folded up. He took it out of the drawer and into his hand and opened it up. It wasn't a long sheet like that. I couldn't say whether it was folded or not. I can remember about his folding it up but I don't remember whether it was folded like it was or whether it had been folded before he returned it. I read the will. We did not discuss the contents of it. It was over a year before he turned it over to me. * * *"

The account of the execution of the will by the other witness to the alleged will, and a beneficiary under it, W. J. LeFurgey, is: "* * * He said he had a will made and he wanted us to witness it. He took the will from an old secretary desk, a piece of furniture he used as a desk. To the best of my recollection, it had been folded one time. Here counsel hands witness paper. This is my signature. At the time I signed my name to this paper Mr. Stanley had signed it in my presence and in the presence of my wife. Mr. John P. Stanley signed first and I signed next as a witness and then my wife signed. We were all present in the house in the same room. In the dining room. It was on the dining room table. After it was signed and after my wife had signed it there wasn't anything done with it. It was left lying on the table and he returned it to the desk. I believe he folded it. * * * I stayed part of the day with Mr. Stanley and part of the day with my mother. He gave me this will then. He said he wanted a copy of the will made. I took the will home with me. I did not later give the will to my wife, but she knew that I had it. I showed it to her. I gave it to her something like three months later I gave it to her and told her to deliver it to John P. Stanley. The next time I saw it was when it was in Mr. Sawyer's office in Fort Payne. * * *."

Mr. Sawyer, the proponent, said:

"I am the executor named in the will offered for Probate. I received the will through the mail. I know Mr. Stanley lived in Fort Payne. * * *

"I received all these letters from Mr. Stanley through the mail which are marked exhibits 1, 2, 3, 4, 5, and 6. I have had business transactions with Mr. Stanley and have seen him write. The signatures to the letters which I have just examined are the signatures of Mr. Stanley."

The proponent having rested, contestants offered Mr. Wolfes as a witness. The following questions were propounded to said witness:

"Did you at their request come to my office and inquire of me as to whether or not Mr. Stanley made a will?

"I will ask you whether or not you came to my office and asked whether or not Mr. Stanley made a will?".

The court sustained objections to these questions and there were due exceptions thereto.

The first question did not fall within the rule of a privileged communication. Sovereign Camp, W. O. W., v. Prichett, 203 Ala. 33, 81 So. 823; 70 C.J. 426, § 569. There was error in the ruling of the court for these questions were not calling for privileged communication between attorney and client, but the answers thereto would illustrate the interest and acts through the attorney of the two witnesses and beneficiary in the will. The last question shed an illuminating light upon the question of interests and the question was competent evidence when taken in connection with the attempted inquiry and the statement of the witness, "I was employed by Mr. & Mrs. LeFurgey."

The following questions were erroneously denied to contestant:

"I will ask you, Mr. Wolfes, if you didn't send Mr. W. J. LeFurgey and Mrs. Viola LeFurgey and Mrs. Mary Kuhlo to my office to ascertain whether or not Mr. J. P. Stanley had ever made a will?"

"I will ask you if you didn't search the records in the Probate Office in Fort Payne, DeKalb County for Mr. and Mrs. W. J. LeFurgey?"

The importance of the foregoing questions and the statement of contestant's counsel to the court: "We want the record to show that we expected an affirmative answer to each of the several questions hereinabove asked to which the court sustained objections," was that it was a communication between an attorney and third persons and the answers are not privileged communications. Sovereign Camp, W. O. W. v. Prichett, 203 Ala. 33, 81 So. 823; 70 Corpus Juris, p. 415, § 556.

The witness Campbell testified that he was present in office of the attorney for contestant when Mr. and Mrs. LeFurgey came in and asked counsel, "We want to know whether or not Mr. Stanley ever made a will?" Witness stated, "I was in the hall of the office waiting to see Mr. Beck." On cross-examination he testified further: "That was about the last of December of last year. He wanted to know if a will had been made. It was after Christmas, between that and the first of the year."

The testimony of Mrs. Baxter, who was Mr. Stanley's housekeeper, contradicted the testimony of the LeFurgeys as to spending the night with Mr. Stanley or coming to his house the next day at the time Mrs. Wear died. There was error in declining the question: "Did he ever tell you the LeFurgeys, about the time Mrs. Wear died, if Viola and Mr LeFurgey spent the night there?" The witness further...