Tucker v. Houston

• Decision Date: 07 April 1927
• Docket Number: 7 Div. 716
• Citation: 216 Ala. 43,112 So. 360
• Parties: TUCKER et al. v. HOUSTON et al.
• Court: Alabama Supreme Court

112 So. 360

216 Ala. 43

TUCKER et al. v. HOUSTON et al.

7 Div. 716

Supreme Court of Alabama

April 7, 1927

Appeal from Circuit Court, Calhoun County; R.B. Carr, Judge.

Bill in equity by Charlie Tucker and others against Mack Houston and others. From the decree, complainants appeal. Affirmed.

If the charge as given has a tendency to mislead, an explanatory charge should be requested.

The following charges were given at the request of defendants:

"G. If a will is made by a person of sound mind, the fact that she died a few days thereafter, would offer no just or valid reason to set aside such will."

"J. The court charges the jury that, if they believe from the evidence that Mrs. Johnson, at the time she made the will, had a sound and disposing mind, then it would be their duty to sustain the will. The court further charges the jury that, for her mind to be a sound, disposing mind, it is not necessary that her memory should be perfect and her mind absolutely be unimpaired. If she had mind and memory enough to recollect the property she was to bequeath and the manner in which she wished it to be disposed of, and to know and understand the business she was engaged in, then, in contemplation of the law, she had a sound and disposing mind and, in such event, bodily infirmity and impairment of the mind, if her mind was impaired, and the near approach of death, would of themselves not vitiate a will thus made.

"K. The court charges the jury that the only issue in this case is whether or not Mrs. Johnson had testamentary capacity at the time the will was made, and the burden of showing a want of testamentary capacity is on the complainant, and, unless the evidence shows to the reasonable satisfaction of the jury that Mrs. Johnson did not have testamentary capacity, as such testamentary capacity has been defined by the court, then the jury should return a verdict in favor of the defendants, sustaining the will."

The following are requested charges which were refused to complainants:

"(4) If the verdict of the jury in this case is in favor of the complainants, then the heirs at law of Mrs. Johnson will take equally and share and share alike all of her property."

"(9) I charge you that, if you are reasonably satisfied from all the evidence in this case that Margaret T. Johnson under her will devised nearly all of her property to strangers, and if you further find from all the evidence to your reasonable satisfaction that such disposition was an unnatural one, it is your duty to carefully scrutinize the testamentary disposition of her property so that under all the facts in proof, you can determine whether her will makes such an unnatural disposition of her property as would lead you to infer that she was mentally incapacitated to make said will at the time the same was signed.

"(10) The court charges the jury that, if they are reasonably satisfied from all the evidence that on the same day on which she signed the instrument offered in this case as the will of Margaret T. Johnson, she had given instructions to one W.H. Woolverton as to the disposition of her property by will, which directions were then put in writing by him at her instance, and in her presence, and that the will as thereafter written by said Woolverton was materially different from such written memorandum, and that the will as written by Woolverton was not read over to her before she signed the same, and that she signed the same believing that it was in accord with her previous instructions, then, the court charges, as a matter of law that such will was not spontaneous act and will of Margaret T. Johnson.

"(11) If the nature of the trusts created by this will were not fully understood by Mrs. Johnson at the time she made the will, or if trusts were created by the will, as written by the attorney, which she did not understand, then the jury may consider this fact in connection with all the evidence as to whether the alleged will is her spontaneous act, or whether she was moved to the making of the will by suggestion of others.

"(12) It is one of the elements of mental capacity as applied to the facts in this case that the act of making the alleged will was the spontaneous act of her mind, not moved to the making of this by prompting or suggestion of others.

"(13) I charge you that, if you are reasonably satisfied from the evidence that, on the day the alleged will was made, Mrs. Johnson was suffering from a mental delusion that her people had not been giving her sufficient care and attention, and if you are further reasonably satisfied that the will was the result of such delusion, then your verdict should be in favor of the contestants."

Theo. J. Lamar and W.A. Weaver, both of Birmingham, and Rutherford Lapsley, of Anniston, for appellants.

Knox, Acker, Sterne & Liles, of Anniston, for appellees.

SAYRE J.

The last will and testament of Margaret T. Johnson, deceased, was contested by appellants by a bill filed on the equity side of the circuit court of Calhoun. Complainants (appellants) demanded a trial by jury, and, such trial being had, a verdict was returned in favor of the validity of the will, and on November 11, 1925, the court entered its decree in agreement with the verdict. November 30th, thereafter, complainants "moved the court to set aside the verdict of the jury and judgment of the court in this cause." December 5th the motion was overruled. A bill of the exceptions reserved at the trial by jury was presented to the judge who presided at the trial on March 1, 1926, and a bond for appeal was filed and approved June 2, 1926. A bill of exceptions must be presented to the judge or clerk at any time within 90 days from the day on which judgment is entered, but presentation of the bill within 90 days after the granting or refusing of a motion for a new trial is sufficient to preserve for review the rulings of the trial court on the trial of the original cause, as well as the ruling of the court on the motion for a new trial. Section 6433 of the Code. An appeal in the ordinary case must be taken within six months from the rendition of the judgment or decree. Section 6127 of the Code. It will be observed that, if the presentation of the bill of exceptions and the filing of the bond for appeal be dated from the decree of November 11, 1925, both came too late; but, if dated from the decree overruling the motion for a rehearing--new trial, it is called--both were within the time prescribed by statute. In Lewis v. Martin, 210 Ala. 401, 98 So. 635, the trial of the issue of devisavit vel non before a jury is likened in every respect to the trial of a civil case at law. The court in that case went so far as to hold that, pending a motion for a "new trial or rehearing," the decree does not become final and will not support an appeal, and that rule 81 of chancery practice has no application to a case of this character. In other words, it was ruled that, notwithstanding the bill to contest a will must be filed on the equity side of the court, it is to all intents and purposes an action at law. This seems to the writer to be at variance with the decisions in Ex parte Colvert, 188 Ala. 650, 65 So. 964, and Kilgore v. T.C.I. & R. Co., 191 Ala. 189, 67 So. 1002; but the court here and now prefers to stand by the precedent afforded by Lewis v. Martin, supra. Accordingly, the motions to strike the bill of exceptions and to dismiss the appeal are both overruled.

Birmingham College, now known as Birmingham-Southern College, a Methodist institution, was named in the will of deceased as residuary legatee, and this made it the largest beneficiary under the will. Appellants sought to challenge a number of jurors on the ground that they were members of the Methodist Church. As members of the Methodist Church, these jurors had no pecuniary interest in the issues involved, and the court committed no error in overruling appellants' objection to these jurors. Ex parte State Bar Association, 92 Ala. 113, 8 So. 768; Burdine v. Grand Lodge, 37 Ala. 478.

Appellants by numerous assignments of error seek to get before the court their proposition that they were entitled to have the jury consider the question of undue influence on the part of Woolverton, who prepared the will in contest at the instance and request of testatrix and was in it named as executor. Our opinion is that no such issue was propounded by the contest filed, and hence there was no error in excluding from the jury all evidence or refusing instructions by which appellants sought to raise the question.

The original bill averred as grounds of contest (1) "the said Margaret T. Johnson [testatrix]- ] was of unsound mind"; and (2) she "did not have testamentary capacity." By an amendment it was charged that "the said purported will of the said Margaret T. Johnson is not the will of the said Margaret T. Johnson." These averments related to the time of the excution of the will, as the original and amended bill sufficiently showed. No objection by demurrer to these averments was taken. By them and the denials of the main defendant, the Birmingham-Southern College, an issue was formed as to the testamentary capacity of testatrix. When it is determined that the proponent or any interested party has exerted undue influence, thereby inducing the execution of the will, such instrument is not the will of the deceased by whom it was executed. But this proposition has nothing to do with the construction of the pleadings in a cause of this character. It is far from the equivalent of an assertion that, to raise the issue of undue influence, it suffices to allege merely that the instrument in contest is not the will of deceased. It has been held, very correctly of course, that, to require the contestant, who would contest a will on...