Wainwright v. Wainwright

• Decision Date: 05 November 1931
• Docket Number: 5 Div. 91.
• Citation: 223 Ala. 522,137 So. 413
• Parties: WAINWRIGHT v. WAINWRIGHT.
• Court: Alabama Supreme Court

137 So. 413

223 Ala. 522

WAINWRIGHT v. WAINWRIGHT.

5 Div. 91.

Supreme Court of Alabama

November 5, 1931

Appeal from Probate Court, Chambers County; W. C. Batson, Judge.

Petition of Minnie Lee Wainwright to probate the will of Robert Wainwright, deceased, contested by Cyril Wainwright. From a decree denying probate of the will, proponent appeals.

Affirmed.

C. S Moon, of Lafayette, and W. Howell Morrow, of West Point, Ga for appellant.

C. E Fuller and Will O. Walton, both of Lafayette, for appellee.

THOMAS J.

The appeal is from a decree rejecting the probate of a will offered therefor by the second wife of decedent as the alleged testator.

The decree recites: "*** Issue was made up by the parties that is whether or not the will was duly executed, whether or not Robert Wainwright was of sound mind at the time of the execution, and whether or not the said alleged will was the result of undue influence, and whether or not said Robert Wainwright's mind had become so far impaired by the continued and excessive use of drugs, stimulants and intoxicants as to render him incapable of making a valid will. *** Whereupon, the issue was made up by the parties, that is, whether or not said will was duly executed, whether or not the mind of testator was unsound at the time of the execution of said will, whether or not, by the excessive use for a long period of time of drugs, stimulants and intoxicants rendered him mentally incapable of making a will, and whether or not the said alleged will was the result of undue influence as alleged in the contest. Thereupon, after testimony was taken orally in open court, the jury having been duly empanelled and sworn, towit: E. B. Clark and eleven others, did on the 29th day of November, 1930, on their oaths, say, we the jury find against the will, E. B. Clark, foreman;" and judgment was entered pursuant to this verdict.

The jury were fully and fairly instructed on the law having application to the evidence in general and written charges; and no exceptions to the oral charge are duly insisted upon. All objections and exceptions not so presented, within the rule that obtains, are treated as waived. Georgia Cotton Co. v. Lee, 196 Ala. 599, 603, 604, 72 So. 158; Republic Iron & Steel Co. v. Quinton, 194 Ala. 126, 69 So. 604; Western Union Tel. Co. v. Benson, 159 Ala. 254, 48 So. 712; Johnson v. State, 152 Ala. 93, 44 So. 671. This rule likewise applies against the proponent concerning the rulings on the admissibility of the testimony. There is nothing sufficiently and specifically pointed out and insisted upon by argument of appellant as to the foregoing rulings.

We are brought to consider the refusal to give the general affirmative instructions requested by proponent. Allegations that testator was of unsound mind at the time of executing the will sufficiently present issue of decedent's mental capacity. Wear v. Wear, 200 Ala. 345, 76 So. 111; Barksdale v. Davis, 114 Ala. 623, 22 So. 17; Batson v. Batson, 217 Ala. 450, 117 So. 10.

Whether testator's belief that his children or some members of his family were hostile to him, or had defrauded or mistreated him, was founded in fact, or was the result of a deranged condition of his mind, amounting to an insane delusion, so affecting testator as to render him incapable of making a will under the law, held for the jury in Batson v. Batson, 217 Ala. 450, 117 So. 10. Florey's Ex'rs v. Florey, 24 Ala. 241; L. R. A. 1915A, 459; 27 L. R. A. (N. S.) 68.

It would serve no good purpose to discuss in detail the evidence of the alleged testator's unnatural, abnormal, or strange conduct and declarations of his children, and delusions of injury therefrom. It is sufficient to say that it was within the rule of the cases defining vitiating insane delusions of hostility of children and family that had no foundation in fact, that made a jury question. Florey's Ex'rs v Florey; Batson v. Batson, supra. The several witnesses, detailing the facts of the unusual and unnatural conduct of the alleged testator, and showing their opportunity and the fact of recent observations of him, at and about the time of the execution of the alleged...