Thigpen v. Walker

• Decision Date: 16 December 1948
• Docket Number: 4 Div. 504.
• Citation: 251 Ala. 426,37 So.2d 923
• Parties: THIGPEN v. WALKER.
• Court: Alabama Supreme Court

37 So.2d 923

251 Ala. 426

THIGPEN v. WALKER.

4 Div. 504.

Supreme Court of Alabama

December 16, 1948

A L. Patterson, of Phenix City, for appellant.

H A. Ferrell, of Phenix City, and Jacob A. Walker, of Opelika for appellee.

BROWN Justice.

This appeal is from the judgment of the circuit court entered on the verdict of the jury in the matter of the contest of the will of Marcus A. Thigpen, deceased, propounded for probate in the Probate Court of Russell County and contested by O. C Thigpen, named in the petition for probate as an heir at law and next of kin, who, after notice issued to and served upon him, appeared and filed six pleas stating sundry grounds on which he contested the existence and validity of the paper propounded for probate. Mindler v. Crocker, 245 Ala. 578, 18 So. 278; Coghill v. Kennedy, 119 Ala. 641, 24 So. 459. Said pleas in short aver that the paper named in the petition for probate is not the last will and testament of said Marcus A. Thigpen; that the execution of said purported will was the result of undue influence exerted upon said testator by the proponent and alleged legatee; that said testator was induced to sign and did sign said will by mistake, thinking he was signing some other paper.

On motion of the defendant the matter of said contest, after filing said pleas, was transferred to the circuit court under the provisions of § 63, Title 61, Code of 1940, and trial by jury was demanded by the defendant, resulting in the following verdict: 'We, the jury, find for the will.'

Demurrers were not filed to said pleas and the minute entry recites: 'Issue being joined, thereupon came a jury of twelve good and lawful men,' etc. At the conclusion of the court's oral charge and before the jury retired, the defendant requested the following charge in writing:

'I further charge you gentlemen of the jury that if you believe the evidence in this case you will find for the contestant,' which was refused and so endorsed by the presiding judge. The court in the oral charge instructed the jury in part:

'This is not a difficult case. You have heard all the testimony; is this the last will and testament of Marcus Thigpen? Was he sane at the time of its execution? Was he acting under the undue influence of G. P. Walker at the time he made the will? These are the principal matters for your consideration and I charge you that if you find from the evidence that Marcus Thigpen was of sound mind at the time he signed the will and that no undue influence was exerted over him then you must find for the proponent of the will and the form of your verdict would be, 'we the jury find in favor of the will.' If the contestant has satisfied you by a preponderance of evidence that undue influence was exerted in the making of said will then the contestant is entitled to prevail and the form of your verdict would be, 'we the jury find against the will.' * * *.' [Italics supplied.]

The defendant after verdict rendered made timely motion for new trial which was overruled and the judgment entry overruling the motion recites, ' and contestant excepted.' [Italics supplied.]

On the trial the alleged subscribing witnesses were examined and the alleged will was exhibited to them during their examination in the presence of the jury and they testified that said Marcus Thigpen subscribed the same and that they attested his signature thereto at his request. The attesting witnesses, Oscar Cochran and his brother E. A. Cochran, testified that they were present when Marcus Thigpen signed said paper. That they were all three present at the place where the paper was signed. Oscar Cochran testified that the paper was undated and that he filled in the date 'January 30, 1942.' The other witness testified that while he was present he didn't remember seeing that done but it might have occurred. That at the time Marcus Thigpen signed the paper in their judgment he was of sound mind and disposing memory. That Thigpen died in January, 1947, and that said paper was made five years before his death. On cross-examination they testified that they did not know who prepared the paper. The fact was developed on cross-examination that on the same day they signed as attesting witnesses to said paper, they also witnessed the signature of said Thigpen to two other documents of the same date. One, in substance, an agreement between the alleged testator and G. P. Walker, the proponent, whereby Walker employed Thigpen as an overseer to serve as an agricultural agent 'on that certain plantation in Russell County, Alabama,--also at my home place containing about 25 acres known as the M. A. Thigpen Place consisting of 560 acres, from the 1st day of February, 1942, to the 31st day of December, 1942; and the said Marcus A. Thigpen agrees that he shall be subject to the orders and regulations of the said G. P. Walker, or his agent, for the management and superintendence of said farm; that he will take good and faithful care of all utensils, implements, wagons, horses, mules and other property committed to his care as agent on said plantation, and be responsible for all loss of or damage thereto, reasonable wear and tear excepted.' The words 'also at my home place containing about 25 acres' and other interlineations appeared on the face of said paper. Listed in said paper was a lot of personal property consisting of 1 two horse wagon, mules, cattle, trucks, tools and farming implements, also corn, hay, peas, and cotton seed to the value of $150, following which is a declaration that, 'This agreement is to cover any future purchases by G. P. Walker of live stock, cattle, farm implements and any other articles necessary to carry on this farm, all of which are to be held by Marcus A. Thigpen in trust for account of G. P. Walker.'

The other document purports to be signed by Marcus A. Thigpen and witnessed by the alleged subscribing witnesses to the paper propounded for probate recites a consideration of $735 and other 'good and valuable considerations not herein mentioned' and states that 'I, Marcus A. Thigpen, do hereby grant, bargain, sell and convey unto the said G. P. Walker the following personal property, to wit: 1 two horse wagon; 1 black mare--10 years old; 1 black mare mule--10 years old; 21 head of cows and calves, being all the cows and calves that I now own; I 1935 model ford truck; 1 ford pick-up truck; all plow tools and farm implements; corn, hay, peas, cottonseed. It being my intention to convey all of the personal property that I now own to G. P. Walker, whether herein accurately described or not; which said property is located at Uchee, Russell County, Alabama.'

The last two mentioned papers were filed for record in the office of the Judge of Probate of Russell County on the 20th day of February, 1942, and recorded therein and were in possession of the proponent and produced on the trial by him on notice given by the defendant. The evidence also shows that the alleged will was in possession of the plaintiff up until he filed the petition in the probate court and that it was also filed for record in the probate office in January, 1947. So far as appears in this record, the paper, the subject matter of the controversy between the parties, was not presented to the court during the trial, nor was it introduced in evidence or made a part of the evidence in the case, transcript of which is certified by the reporter to contain all the evidence offered on the trial. The other two documents were offered in evidence and made a part of the record. These documents, together with the testimony of the plaintiff who without objection was allowed to testify to the transactions with the decedent, go to show that confidential relations existed between plaintiff and Thigpen at the time the alleged will was signed. There was also evidence going to show that Thigpen was old and afflicted and his eyes necessitated the use of glasses to enable him to read and write.

Appellee contends that under the statutes (§§ 52 and 63, Title 61, Code of 1940), the trial court on such trial may ignore the pleadings filed by the parties and make up the issues to be tried and submitted to the jury in the court's oral charge. That the excerpt heretofore quoted from the oral charge constituted such issues as made up by the court. Section 52, Title 61, Code of 1940, provides: 'A will, before the probate thereof, may be contested by any person interested therein, or by any person, who, if the testator had died intestate, would have been an heir or distributee of his estate by filing in the court where it is offered for probate allegations in writing that the will was not duly executed, or of the unsoundness of mind of the testator, or of any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court, between the person making the application, as plaintiff, and the person contesting the validity of the will, as defendant; and such issue must, on application of either party, be tried by a jury.'

Section 63, Title 61, Code of 1940, authorizing the removal of the contest to the circuit court provides: '* * * The issues must be made up in the circuit court as if the trial were to be had in the probate court, and the trial had in all other respects as trials in other civil cases in the circuit court. * * *'

In Mindler v. Crocker, 245 Ala. 578, 18 So.2d 278, 279, it was observed:

'* * * The issue should be made up under the direction of the court on proper pleas specified in the contest as directed in section 52, Title 61, Code of 1940. The only two pleas which went to the jury and which were not objectionable were numbers 5 and 6, denying the execution of the will, and there was no contention on the trial that the evidence was insufficient as...