Starr v. Starr

• Decision Date: 12 September 1974
• Citation: 301 So.2d 78,293 Ala. 204
• Parties: William Cecil STARR v. Floyd T. STARR, Sr. SC 291.
• Court: Alabama Supreme Court

Page 78

301 So.2d 78

293 Ala. 204

William Cecil STARR v. Floyd T. STARR, Sr.

SC 291.

Supreme Court of Alabama.

Sept. 12, 1974.

Rehearing Denied Oct. 3, 1974.

Harry D. Raymon, Tuskegee, for appellant.

Samford, Torbert, Denson & Horsley, Opelika, for appellee.

FAULKNER, Justice.

This case involves a will contest tried in the Circuit Court of Lee County.

On April 1, 1971, Floyd T. Starr propounded for probate the will of his deceased wife, Eva Silavent Starr. Under her will the personal property was left to Floyd Starr, her husband. Her real property was left equally to her husband and her son, Floyd Terry Starr, Jr. Prior to probate of the will, William Cecil Starr, another son of Mrs. Starr, filed a contest on the grounds that (1) the will was not properly executed because one of the witnesses supposedly did not see Mrs. Starr sign the will and that she did not acknowledge a previous signature; (2) undue influence by Terry Starr and Floyd T. Starr, Sr.; and (3) unsound mind.

The proponents of the will presented evidence that Cecil Starr was 'disinherited' because of an earlier agreement between Mr. and Mrs. Starr. The agreement provided that Mrs. Starr would leave her property to Terry and her husband, and her husband upon his death would leave all of his property to Cecil. Her motive in giving her husband one-half of the real property was to take advantage of the maximum marital deduction under the provision of the Internal Revenue Code. It was felt that in this way the division could ultimately be equalized, as both parents owned property. Also, Terry and Cecil had a history of conflict, and it was believed that any joint ownership of property by them would be ill-advised. On February 5, 1973, the case was tried before a jury, and a verdict was rendered in favor of the validity of the will. The appellant appeals from that judgment.

Assignments of Error One, Two and Five are similar in nature and deal with the court's sustaining objections to the following questions asked by Cecil Starr at various times of the witness Floyd Starr, Sr., while on cross-examination:

1. 'Mr. Starr, have you made a will?'

2. 'Have you made any will in conformance with any tax plan relative to your wife's estate and your estate?'

3. 'You ever make one--make a will prior to her death?'

4. 'Have you made any will at any time in conjunction with your wife's will to try to take advantage of any estate tax planning?'

5. 'Did you prepare any instrument that would carry out your part of the plan?'

The basis of objection in all of the instances above was that such questioning was not relevant to the issues of the case, in spite of earlier testimony by the proponents of the will concerning the supposed plan of distribution worked out by Mr. and Mrs. Starr prior to her death. The question is then one of whether Mr. Starr's lack of a will would logically infer the fact that a plan had not been agreed to by the Starrs. This could have been the only purpose of such interrogation by Cecil Starr. Numerous tests of 'relevancy' have been enunciated in an effort to deal with the problem of when a certain piece of evidence is probative and hence admissible. One standard test is whether the evidence offered renders the desired inference more probable than it would be without the evidence. McCormick on Evidence, p. 437 (2d Ed.). While the fact that Mr. Starr had no will at the time of trial normally would be something for the jury to consider, it does not of necessity negative the fact that an agreement could have been reached as to the ultimate disposition of the spouse's property. On cross-examination, the test of relevance is generally given a wider latitude than on direct. It is recognized that the trial judge has great discretionary power in controlling the extent of examination and will not be reversed save for abuse resulting in substantial harm to the complaining party. Bates v. Chilton County, 244 Ala. 297, 13 So.2d 186 (1943). We do not believe there was any prejudice to the appellant in any of the above instances. Even though the evidence may have been technically relevant, Cecil Starr himself objected to a similar line of questioning of Mr. Starr by Floyd T. Starr, Sr., and the objection was sustained.

'Q. All right, sir. Do you have a will?

'A. No, sir, I don't have one.

'Q. Have you had a will since she died?

'A. Yes sir, I had a will made.

'Q. What did that will provide.

'MR. RAMON: We object, if it please the Court.

'MR. SAMFORD: Well, we don't insist on that.

'THE COURT: Well, Mr. Raymon was asking that same question. I'll have to sustain that objection.'

Some of the appellant's questioning occurred before and some after the above interchange. Cecil Starr could have known what he wanted to know about Mr. Starr's will had he not objected and cut off the testimony. Prejudicial error should not be predicated on grounds such as these. There can be no error for the admission of evidence which has been admitted without objection at some other stage of the trial. Harvey Ragland Co. v. Newton, 268 Ala. 192, 105 So.2d 110 (1958). The spirit of this principle should apply to the issue now before us. The parties may try their case totally on illegal evidence--if both sides choose not to object at the appropriate time. This court considers on appeal, only adverse rulings of the trial court. Presumably then, the parties may choose to try their case without the benefit of evidence which might otherwise be relevant and proper, when they both object to the same type of evidence, elicited from the same witness.

Assignment Number Four deals with supposed error in the court's overruling of an objection to the following question asked of Mr. Floyd T. Starr, Sr.:

Q. 'Is it your intention to carry out the plan of distribution of the family property that you and Mrs. Starr arrived at?'

Cecil Starr states that it is a long standing rule in this state that one can not prove by a witness On direct examination, his intent, motive, or other unexpressed mental operation. The appellant cites us to Low v. Low, 255 Ala. 536, 52 So.2d 218 (1951). In this case the trial court allowed a witness to testify on direct examination as to whether he had the intention of delivering a deed to the grantee at the time of executing it. This court reversed because we could not say with certainty that the '. . . illegal evidence with respect to his undisclosed intention did not affect appellant's substantial rights . . .' Numerous other cases have parroted the same general proposition that a witness may not testify as to his undisclosed intention or the uncommunicated intent of another. See Armour & Co. v. Cartledge, 234 Ala. 644, 176 So. 334 (1937) and cases cited therein. This rule has been criticized by text writers. McElroy, The Law of Evidence in Alabama, Vol. 3, § 290.01(9)(a). Judge McElroy refers to it as a 'bizarre general rule' and indicates that it had its inception because it was felt that testimony given in response to such a question was 'insusceptible of contradiction.' Alabama Fertilizer Co. v. Reynolds & Lee, 79 Ala. 497 (1885). Members of this court have also taken the so-called 'rule of exclusion' to task. Justice Harwood said this about it in his opinion in Stegall v. Wylie, 291 Ala. 1, 277 So.2d 85 (1973):

'This rule prevails in no other jurisdiction. Unworkable since its origin, the rule is now so glossed by exceptions, many being attempted distinctions without any real differences, that its application is impossible with any degree of certitude.

'In Conrad v. Conrad, 275 Ala. 202, 153 So.2d 635, in a special concurring opinion, this writer expressed the view that our Rule of Exclusion was nothing more than a jurisprudential will o' the wisp whose evanescent light served only to lead lower courts into the mire of reversal, and that it should be totally extirpated. He was joined in this view by the late Chief Justice Livingston.'

See also McGuff v. State, 248 Ala. 259, 27 So.2d 241 (1946) (dissenting opinion by the late Chief Justice Livingston). Apparently the 'rule of exclusion' first got its name in an article written by Judge McElroy in 1940 for the Alabama Lawyer. McElroy, 'Admissibility in Alabama of a Witness' Testimony to His Own Intent or Other State of Mind,' 1 Ala. Lawyer 221 (1940). In this article Judge McElroy traces the beginnings of the rule by chronicling the early cases that gave it birth. He writes that in dealing with the rule Dean Wigmore stated that '. . . there is no precedent for it in the inherited common law; it is an attempt to create a rule without an analogy in the accepted doctrines of judicial rulings.' Wigmore on Evidence (3rd Ed.), § 581. To say that such testimony is 'insusceptible of contradiction' assumes the total nonexistence of any available counter-evidence which could be offered by the opposing party. In his conclusion Judge McElroy states:

'It is unwise to maintain any such utterly irrational restriction against the normal, natural way of interrogating witnesses. Nearly every trial sees many objections under this rule, with the inquiry, in consequence of the objection, being diverted into laborious, tedious, unnatural and circuitous channels. Our decisions concerning the rule of exclusion are in a state of unmanageable confusion. The rule of exclusion had its genesis in a generation long past. The rule's disservice is now palpably manifest. No intelligent person can read Inter-Ocean Casualty Company v. Stallworth, Kinsey v. State, and many other decisions flatly ignoring the rule, and read the decisions creating the exceptions, without sensing a feeling in the judges of our later days that the rule of exclusion is an abomination in the quest for truth, and that they would like to be rid of it.'

Mr. Starr's testimony was treated by the parties as being both material and relevant to the issues, and we will so treat it. The existence of the plan for disposition of the spouse's property runs through...