Street v. Street, 8 Div. 304.

• Decision Date: 19 April 1945
• Docket Number: 8 Div. 304.
• Citation: 22 So.2d 35,246 Ala. 683
• Court: Alabama Supreme Court
• Parties: STREET v. STREET et al.

22 So.2d 35

246 Ala. 683

STREET v. STREET et al.

8 Div. 304.

Supreme Court of Alabama

April 19, 1945

Rehearing Denied May 17, 1945.

Marion F. Lusk, of Guntersville, for appellant.

Claud D. Scruggs, of Guntersville, and Hill, Hill Whiting & Rives, of Montgomery, for appellees.

The will involved is as follows:

PROPONENT'S EXHIBIT #1

O D. Street

(Written in longhand with ink)

I Oliver D. Street of the City Guntersville Marshall County Alabama, do hereby make publish and declare this my last will and testament.

1 I devise and bequeath to my beloved wife Mary C. Street all of my property real personal or mixed.

2 I hereby further declare that the said Mary C. Street knows nothing of this bequest and has never mentioned same to me.

3. The reason I do not make any provisions in this will for my children is that they are comfortably fixed and able to take care of themselves and my estate is not large enough to be subjected to the proscess of division.

4 I charge my beloved wife Mary C. Street with the care support and education of our beloved son Charles Street.

5 I hereby appoint my said wife Mary C. Street as executrix of this my said will and I direct that she shall not be required to give any bond for the performance of her duties, nor shall she be required to make any eventory or make any reports to any court whatsoever.

6 In witness whereof I have hereunto set my hand and subscribed my name and seal in the presence of Thos E Orr and Martha Gosa whom I have requested to become attesting witnesses hereto, on this 20th day of Jan. 1941. The words 'all of my property' interlined before signing----

Oliver D. Street

We the undersigned Thos E Orr and Martha Gosa hereby certify that the above and foregoing last will and testament of Oliver D Street was executed by him in our presence and we at the same time in his presence and in the presence of each other and at his request, signed our names as attesting witnesses hereto, on this 20th day of January A.D. 1941.

Thos E Orr

Martha Gosa

The following charges were refused to plaintiff:

'A. Gentlemen of the jury, if you believe the evidence in the case your verdict will be in favor of the proponent.

'B. Gentlemen of the Jury, under the evidence of this case your verdict must be for the proponent.

'37. Gentlemen of the Jury, I charge you that there is no evidence in this case that testator was not fully aware of what property he owned, and of his kin and dependents, and of his obligations to them.

'38. Gentlemen of the Jury, I charge you that there is no evidence in this case that Mrs. Street at any time made any threat influencing Mr. Street in the execution of the will she has offered for probate.

'39. Gentlemen of the Jury, I charge you that there is no evidence in this case of fraud having been perpetrated by the proponent before the execution of the will.

'40. Gentlemen of the Jury, I charge you that there is no evidence in this case of deceit having been perpetrated by the proponent before the execution of the will.

'41. Gentlemen of the Jury, I charge you that there is no evidence in this case of fraud having been perpetrated by the proponent before or after the execution of the will.

'42. Gentlemen of the Jury, I charge you that there is no evidence in this case of deceit having been perpetrated by the proponent before or after the execution of the will.

'50. Gentlemen of the Jury, I charge you that if you believe the evidence, you will find that the statutory requirements as to the execution of the will were complied with.'

THOMAS, Justice.

On Sunday morning January 19, 1941, Oliver D. Street, age seventy-four, sustained a severe heart attack at his home in Guntersville, Alabama, where he had resided since 1940 with his second wife Mary Curd Street and their foster son Charles Alfred Street, age ten. The family physician, Dr. A. G. Finlay, was called treated the patient, and arranged for Miss Martha Gosa, a graduate nurse, to serve as day nurse, and Mrs. Hattie Durham, a practical nurse, for night duty. Plaintiff (proponent) promptly notified testator's two daughters, viz: Mrs. Marshall Fennell, wife of Dr. Robert Fennell, and Mrs. Julia Ross, wife of Wright H. Ross of Guntersville, and a son, Mr. O. D. Street, Jr., of Montgomery, for convenience referred to as one of the 'defendants'. Those in Guntersville came at once and stayed over an hour, eating while there a breakfast prepared by plaintiff. O. D. Street, Jr., arrived that night or early the next morning. The other son and defendant, John C. Street, was then residing in Denver, Colorado. That evening testator had a slight recurrence of the attack, and the daughters again came in response to plaintiff's summons.

The next morning testator's condition had improved and after he had been given his bath and breakfast he directed plaintiff to call Mr. Orr, testator's law partner at Albertville, and tell him to come down before going to the courthouse. Plaintiff called Mr. Orr at his home and gave him the message, but Mr. Orr stopped at his office and testator later had plaintiff call again with the added request that he come at once. Mr. Orr came promptly and arrived at the home about 9 A. M.

Plaintiff met him at the front door and showed him through the living room to testator's bedroom, and then went on with her housework. Testator told Mr. Orr that he wanted him to write his will; and the latter said he would have to get someone to bring him paper as he had brought none with him. Testator called plaintiff and sent her for a tablet of plain white paper. When she had brought this, testator told her to go out of the room as he had some business to attend to with Mr. Orr. She went out and closed the door. Mr. Orr sat at the bedside to make a draft of the will, at which time testator was in a reclining position, propped up with pillows, and apparently not suffering discomfort. He was not under the influence of sedatives, having had none since the evening before. His mind, according to Mr. Orr's testimony, was as 'clear as a bell.' And, according to Dr. Finlay, the attending physician, testator's mind and willpower were 'strong.' Mr. Orr then told testator that in view of the latter's abilities as a lawyer, he preferred that he dictate the will, and testator began dictating, and Mr. Orr writing. When testator had dictated that part of the will giving everything to plaintiff, the following took place, as related by Mr. Orr:

'I said, 'Mr. Street, I am not trying to tell you how to dispose of your property, I would not think of doing that but I am wondering if you have not forgotten something.' He said, 'What is it that you have in mind?' I said, 'Well, you have a very valuable law library and you have two sons who are both practicing attorneys. The law library would be very valuable to either of those sons, particularly if they ever decide to practice law in Alabama, and if not in Alabama, there are portions that would be valuable anywhere in the United States, wherever they set up a law office, and it would be of very little value to Mrs. Street, and as you know, secondhand books bring very little value on the market.' He said, 'Yes, I know that and I have thought of that. Mrs. Street will take care of all that.' I said, 'O. K.' He then dictated to me * * * this third paragraph in the will which speaks for itself, and I wrote that. So, I proceeded to his dictation to scribble down hurriedly what he said to me and when we had finished, I said, 'Who do you want to witness the will?' and he said, 'Miss Gosa and yourself.' I said 'All right,' and then I wrote the attestation clause and he said, 'Very well.' I said, 'Now, I will go down to your office, your stenographer is there, isn't she?' and he said, 'Yes.' I said 'I will run down to your office and have this put in typewritten form and I will bring it on back and we will execute it.' He said, 'No, no use of that, we will just use that that you have there.' I said, 'Mr. Street, I did not draft this with the idea it was going to be a finished document. I merely hurriedly wrote this out here with the idea as I usually do of using it as the first draft and I am a little more particular about the matter when I put it in final form and I much prefer to run down and have this typed up and correct perhaps grammatical errors in there and bring it back here and let you reread it in nicer form than it is.' He said, 'No, that is all right.' He said, 'I am perfectly aware of my condition. I am perfectly all right now and the doctor tells me so and I feel that way, but a lot of things could happen with a man in my condition before you get back from the office and we will execute that document right there like it is.' I said: 'Suppose I take it and sit here and draft it in a little better form, being of course, the same thing with reference to the disposition of property but get it in better form.' He said, 'No, we will execute it like it is, whatever is lacking there interline it.' I wrote that interlineation in paragraph one, after I did that he wrote on somewhere here the interlineation in his own hand and said, 'The words 'all my property' interlined before signing.' And they were put in there before it was signed. After he positively refused to permit me to redraft the will either in his presence or at his office, I think I stepped to the door and called Miss Gosa. There was no one in the room except he and me at the time. Miss Gosa came in and Mr. Street said, 'I want you to witness my will,' and I had the document in my hand, we were both standing near his bed. He was propped up with two pillows to his back about as I am in this chair at this time. He first signed it and after he signed it I signed it and handed it to Miss Gosa...