Towles v. Pettus

• Decision Date: 11 February 1943
• Docket Number: 6 Div. 71.
• Citation: 244 Ala. 192,12 So.2d 357
• Parties: TOWLES v. PETTUS et al.
• Court: Alabama Supreme Court

12 So.2d 357

244 Ala. 192

TOWLES v. PETTUS et al.

6 Div. 71.

Supreme Court of Alabama

February 11, 1943

Rehearing Denied March 25, 1943.

Appeal from Probate Court, Cullman County; H. H. Kinney Judge. [Copyrighted Material Omitted]

The question propounded to witness Wood by proponent, the sustaining of objection to which is made the basis of assignment 6, was as follows: "He didn't have enough fever to affect his mental faculties at the time he made the will, did he?"

The witness Quick testified, over proponent's objection, that deceased, at a previous time, came to the house of witness and asked witness if he was going to pay his rent that day that witness replied that his rent was not due, but deceased contended that the rent was past due; that deceased looked at witness a second time and stated, "I thought you was Mr. Cook, that is who I was wanting to see." Witness further testified that he was standing where deceased could see him and had known deceased two or three years at that time; that Cook's house was about a block away from the house of the witness, and that when witness told him he was not Mr. Cook, deceased left.

Witness John Clark testified, in substance, that he knew deceased forty odd years in his lifetime; that deceased was not what he was when witness first knew him; that he appeared to fail in the last few years; that deceased had a way, when he was talking to him, of saying, "Very true, very true", regardless of whether it was true or not, and that deceased did not do that when witness first knew him; and that witness had seen deceased stop his car on the highway, and sit there meditating. Witness further testified that deceased appeared to be a man of unsound mind the last two or three years.

The following charges were given at the request of contestants:

"1. The Court charges the jury that the testator must have sufficient capacity to comprehend the condition of his property, his relation to the objects of his bounty, and the scope of the provisions of his will, and be sufficiently active of memory to collect in his mind without prompting the particulars of the business to be transacted, and to hold them a sufficient length of time to perceive their obvious relations to each other, and to be able to form some rational judgment with relation to them."

"5. The Court charges the jury that if they believe from the evidence in this case, and are reasonably satisfied from such evidence, that the will makes an unnatural disposition of the property of the testator, this fact may be taken into consideration together with or in connection with all the other evidence in the case, in the determination of the issues involved."

"D. If you are reasonably satisfied from the evidence that at any time within two or three years prior to the execution of the alleged will the mind of the testator, J. O. Towles, had become permanently impaired or diseased, the court charges the jury that presumption would then arise that such impaired or diseased condition continued till the time of the execution of the alleged will.

Griffith & Entrekin, of Cullman, for appellant.

Erle Pettus, of Birmingham, and J. T. Johnson, of Oneonta, for appellees.

BROWN, Justice.

The appeal is from the decree of the Probate Court of Cullman County, rendered on the verdict of a jury, denying probate of the alleged last will and testament of J. O. Towles deceased, filed for probate by appellant and contested by appellees for alleged want of testamentary capacity on the part of said Towles, and for undue influence alleged to have been exercised over the said Towles by appellant, and certain members of his family, or some of them, and by parties unknown. Coghill v. Kennedy, 119 Ala. 641, 24 So. 459.

Towles, a bachelor, semi-recluse, eccentric, and, as some of the testimony tended to show, afflicted with kleptomania, died on March 16, 1942, at the age of 79 years, leaving an estate of considerable value which, as the evidence shows, he had accumulated by hard living and rigid economy. He left surviving as his heirs at law, one brother, the appellant 76 years of age, eight nieces and nephews, children of deceased brothers and sister.

The paper propounded for probate bears date of March 13, 1942, and, subject to the payment of debts, bequeathed to A. G. or Green Towles, the appellant, the entire estate of the said J. O. Towles.

The evidence goes to show that on Thursday, March 12, said alleged testate went to the office of Dr. Wood in Hanceville for treatment, and was advised that he had flu with two and one-half degrees of temperature and was too sick to be up. That the doctor advised him to go home and go to bed and he would treat him there.

That he left the doctor's office to go to his home, something like two hundred yards distant. Dr. Wood on the next day, which was Friday, March 13th, went to the home of said testate and he was not there; that he passed the truck of Green Towles as he was going to the home of his patient, but did not recognize who it was, though his son who was driving his car stated that it was Towles in the car.

That he then proceeded to Green's home, from a quarter to a half mile distant, and when he got there about noon, he found J. O. Towles in bed, suffering from double pneumonia, with temperature around one hundred and two degrees, and testified that said alleged testate had "flu pneumonia, one of the most fatal forms of pneumonia."

The witness Dr. Wood testified further that he called to see his patient around 4:30 or 5:00 o'clock in the afternoon of March 13, 1942, and the patient was then being nursed by Mrs. Tankersley, the daughter of Green Towles; that his temperature had been reduced in consequence of the medicine administered-sulfathiazole, one given by the witness and the other by Mrs. Tankersley, the nurse.

Soon after he had taken the temperature of said testate, Mr. Dean and Mr. Warren came to the room where testate was, Mr. Dean having with him the typewritten paper, subsequently signed by said testate and witnessed by Dr. Wood, John Dean and A. P. Warren, all of whom signed as subscribing witnesses. At that time Mr. Tankersley and Mrs. Tankersley were present in the room and Green Towles was in the front part of the house.

When first asked by counsel for contestant whether or not John Towles, at the time he signed the paper, was a person of sound mind, Dr. Wood answered: "I don't know just how to answer it. I believe John Towles knew what he was doing because he repeated it twice about his 'beloved brother.' As I said, I don't know how to answer whether he was a man of sound mind at that time. I would not say." On redirect examination by proponent, Dr. Wood stated: "From his demeanor and his action and his conversation I think he was a man with a soundness of mind that would qualify him to attend to the business at hand-that is the execution of a will on the day that he executed it."

Dr. Wood testified that Towles, after signing the paper, stated: "That is what I want. My beloved brother to have what I have got."

The subscribing witness Dean testified, to state the substance of his testimony, that on Thursday night, before the alleged will was signed on Friday afternoon, he was attending an air wardens' meeting at the school house, when Tankersley, the son-in-law of Green Towles, came for him, and he went with him to Green Towles' house, and John was there and told him he had sent for him to write his will; that Mrs. Tankersley and her husband were in the room and Green was in the adjoining room. That he told John that he did not have a typewriter and that he would prepare it for him next day, and next day he communicated with "Judge Self," told Self how John wanted the will written and Self wrote the will, and on Friday afternoon he carried it to Green Towles' home, where John was, and that John signed it in his presence and in the presence of the other witnesses, and in his opinion John Towles was a man of sound mind. Dean also testified: "I can't recall that he made any statement after he signed the will."

Warren, the other subscribing witness, who went with Dean at his request, gave testimony to the same effect. The paper, after it was signed and witnessed, was delivered by witness Dean to A. G. Towles, who was named as the sole legatee.

On Saturday, the fourteenth, said alleged testator was carried to the hospital in Cullman, where his treatment was continued by Dr. Wood, until his death on the following Monday, March 16th.

After the patient was moved to the hospital his temperature fell below normal, and his pulse increased and finally went up to 150, and he passed.

The contestants offered the evidence of one professional witness, Dr. Dodson, whose testimony was based on hypothetical questions; and several lay witnesses who qualified by stating their acquaintance, observation and intimate knowledge of said testate, and his acts, character and conduct tending to show mental disorder, who testified that he was not, in their opinion, a person of sound mind. Peters v. State, 240 Ala. 531, 200 So. 404. Dr. Dodson's testimony goes to show that a man affected as the evidence shows J. O. Towles was at the time he undertook to execute the will, did not possess testamentary capacity.

After mature consideration, we are of opinion that the tendencies of the evidence stated above, and the evidence going to show a factual relation of confidence and trust existing between the two brothers, justified a submission of the issues in the case to the jury. Nelson v. Brown, 164 Ala. 397 409, 51 So. 360, 137 Am.St.Rep. 61; Cannon v. Gilmer, 135 Ala. 302, 33 So. 659; Coghill v. Kennedy, 119 Ala. 641, 24 So. 459; McQueen v. Wilson et al., 131 Ala. 606, 31 So. 94; Posey et...