Tucker v. Tucker

• Decision Date: 05 December 1946
• Docket Number: 5 Div. 413.
• Citation: 28 So.2d 637,248 Ala. 602
• Court: Alabama Supreme Court
• Parties: TUCKER et al. v. TUCKER et al.

28 So.2d 637

248 Ala. 602

TUCKER et al. v. TUCKER et al.

5 Div. 413.

Supreme Court of Alabama

December 5, 1946

Rehearing Denied Jan. 23, 1947.

Denson & Denson, of Opelika, and Chas. E. Fuller, of LaFayette for appellants.

Jacob A. Walker, of Opelika, and Hines & Hines R. C. Wallace and D. W. Jackson, all of LaFayette, for appellees.

LIVINGSTON Justice.

This is a review of proceedings to contest the probate of the alleged last will and testament of James A. Tucker.

James A. Tucker, long a resident of Chambers County, Alabama, died on August 7, 1945, seized and possessed of an estate valued at more than $250,000, and located, in the main, in Chambers County. He was never married and left surviving no father or mother. He had three brothers and four sisters, namely, John M. Tucker, Joseph S. Tucker, william M. Tucker, Maggie Tucker Webb, Janie Tucker Pearson, Sarah Tucker Hart, and Leila Tucker Gaines. None of his sisters, and only one brother, William M. Tucker, survived him. Joseph S. Tucker was never married, while John M. Tucker and the four named sisters all had children who survived James A. Tucker.

The nieces and nephews surviving James A. Tucker were John J. Tucker, W. Henry Tucker, Bessie T. Torbert, and Mary J. Ordway, sons and daughters of John M. Tucker, deceased; Ada Pearson Nichols, Maggie Pearson Frazer, Anna Pearson Fuller, and Sallie Kate Pearson Alsobrook, daughters of Janie Tucker Pearson, deceased; Walter Hart and Bettie Hart Noel, son and daughter of Sarah Tucker Hart, deceased; Will Gaines Holmes and Mamie Gaines Germany, children of Leila Tucker Gaines, deceased; William H. Webb and Joe T. Webb, sons of Maggie Tucker Webb, deceased. Mrs. Webb was living at the time James A. Tucker executed his alleged will.

On November 5, 1938, the said James A. Tucker executed an instrument purporting to be his last will and testament. By this instrument he devised and bequeathed all of his property to his brother John M. Tucker, provided the said John M. Tucker was living at the time James A. Tucker died, and in the event John M. Tucker died prior to the death of James A. Tucker, all of his property was devised and bequeathed to the two sons and two daughters of John M. Tucker, and who are named above. The instrument nominated and appointed John M. Tucker executor, and relieved him from making bond, filing inventories, making returns or settlements, etc., and provided further that in the event John M. Tucker predeceased James A. Tucker, John J. Tucker and W. Henry Tucker should act as executors with the same powers, privileges and immunities granted John M. Tucker. John M. Tucker died in 1943.

On August 16, 1945, John J. Tucker and W. Henry Tucker filed their petition in the probate court of Chambers County seeking to probate the will. On said date the court made and entered an order setting the petition down for hearing on September 13, 1945, and directed notice to the next of kin. On September 13, 1945, when the petition came on for hearing all of the next of kin of James A. Tucker, deceased, except the children of John M. Tucker, deceased, a nephew William H. Webb and a niece Mrs. Anna P. Fuller, filed their written contest of the alleged will, and demanded that the same be transferred to the circuit court, and there tried by a jury. The probate court made and entered the order prayed for.

The trial in the circuit court resulted in a verdict and judgment for contestants, and the proponents of the will prosecute this appeal.

The pivotal question is the testamentary capacity of James A. Tucker as of November 5, 1938, the day on which he executed the instrument alleged to be his last will and testament.

If the testator possessed at the time of the execution of the instrument offered for probate sufficient mentality to understand the business about which he was engaged, the kind and extent of the property devised, and the persons who were the natural objects of his bounty, and the manner in which he desired the disposition of his property to take effect, his will is valid. Houston v. Grigsby, 217 Ala. 506, 116 So. 686; Eastis v. Montgomery, 95 Ala. 486, 11 So. 204, 36 Am.St.Rep. 227 (see, also, 19 Ala.Dig., Wills, k50, p. 443).

Sanity being the normal condition of the human mind, the law presumes that every person of full age has sufficient mental capacity to make a will, and casts on the contestant, in the first instance, the burden of proving mental incapacity at the time the will was executed, but, when the contestant has established habitual, fixed or permanent insanity, as distinguished from spasmodic or temporary insanity at a time prior to making the will, the burden of going forward with the evidence is then shifted to the proponents, and they are required to show that the will was executed during a lucid interval. O'Donnell v. Rodiger, 76 Ala. 222, 52 Am.Rep. 322; McBride v. Sullivan, 155 Ala. 166, 45 So. 902; Houston v. Grigsby, 217 Ala. 506, 508, 116 So. 686.

The following facts are not controverted. James A. Tucker moved to Lafayette, Alabama, about the year 1898. He went to live in the home of his sister Mrs. Gaines, and he lived there until Mrs. Gaines died in 1922. For another ten years after the death of Mrs. Gaines he kept and occupied a room at the Gaines' homes, but took his meals elsewhere. For a long number of years John M. Tucker, Joseph S. Tucker, and James A. Tucker owned and successfully operated a partnership under the firm name of Tucker Brothers, engaging in a general mercantile and supply business in Lafayette, Alabama. William M. Tucker lives in Florida, but just when he left Chambers County is not shown. John M. Tucker and his four sisters reared their families in or near Lafayette. John M. Tucker no hint of family friction or disunity until the death of Joseph S. Tucker in 1938. To the contrary, we think it fairly discloses a devoted family.

Joseph S. Tucker died on or about September 2, 1938, leaving an estate worth not less than $750,000. With the exception of special bequests, aggregating approximately $100,000, Joseph S. Tucker willed his estate to his brother John M. Tucker, with the provision that said estate was to go to the four children of John M. Tucker if John M. Tucker was not living at the time of the death of testator, Joseph S. Tucker, or at the death of James A. Tucker, who was to receive one-half of the net proceeds of the estate as long as he lived.

As already stated, James A. Tucker executed the instrument purporting to be his will on November 5, 1938. He was then seventy-three years of age.

James A. Tucker had a stroke of paralysis or apoplexy in January 1936, and it was agreed between the parties that the records of Wheeler Hospital showed that he was confined to that hospital from January 15, 1936, to about May 1, 1936; that he was again admitted to the hospital on May 15, 1937, and discharged June 30, 1937; that he was again admitted to the hospital on October 5, 1941, and remained there until his death on August 7, 1945. Upon being discharged from the hospital in May 1936, he went to the Chambers Hotel to reside, going back to the hospital in May 1937, and when discharged in June 1937, again resided at the hotel until he returned to the hospital on October 5, 1941. It is not disputed that Mr. Tucker was admitted to the hospital in January 1936 because of a stroke. There is perhaps some conflict as to the cause of his second commitment in May 1937: contestants contending that he suffered another stroke, while proponents contend that it was because of an attack of flu. It is not denied that he died as the result of an intercranial hemorrhage caused by arteriosclerosis. For a time, after his first stay in the hospital, Mr. Tucker was confined to the use of a rolling chair. Later, he was able to walk some, though as said by some witnesses, he walked with great difficulty and dragged or slid one of his feet, and walked with one arm extended. He continued to go to his place of business, more or less regularly, after leaving the hospital the first time until he was admitted to the hospital the last time in October 1941.

The testimony of medical experts as well as that of lay witnesses, is conflicting in respect to the mental soundness of Mr. Tucker at the time he executed the instrument purporting to be his last will and testament. The opposing parties examined many witnesses and the record is voluminous.

We will not attempt a detailed analysis of the testimony (section 66, Title 13, Code of 1940), but will set forth in substance enough to clearly demonstrate the correctness of the trial court's ruling in refusing proponents' written request for the general charge on the question of mental capacity.

Contestants' witness, Dr. W. G. Gaines, qualified as an expert. He was a brother-in-law of Mr. Tucker, and his two daughters were nieces of Mr. Tucker, and contestants of his will, which facts go to his credibility rather than his competency. Mr Tucker lived in the home of Dr. Gaines for more than thirty years. Dr. Gaines' knowledge of Mr. Tucker's mental condition was acquired both from ordinary personal contact and association, and from professional services rendered. Dr. Gaines testified that he moved away from Lafayette in 1935, but made frequent visits back, and that he saw Mr. Tucker on those visits; that on or about September 3, 1938, the day after Mr. Joseph Tucker was buried, and some two months before James A. Tucker executed the instrument purporting to be his will, he made a thorough examination of James A. Tucker; that in his professional opinion James A. Tucker was of unsound mind on September 3, 1938, and that his condition continued to deteriorate until he died: that he was of unsound mind on November 5, 1938, the...