Whitsett v. Belue

• Decision Date: 31 January 1911
• Citation: 172 Ala. 256,54 So. 677
• Parties: WHITSETT ET AL. v. BELUE ET AL.
• Court: Alabama Supreme Court

54 So. 677

172 Ala. 256

WHITSETT ET AL. v. BELUE ET AL.

Supreme Court of Alabama

January 31, 1911

Appeal from Probate Court, Lauderdale County; John L. Hughston Judge.

Application by W. M. Whitsett and others for the probate of the will of Martha Higgins, deceased, to which a contest was filed by J J. Belue and others. Probate denied, and proponents appeal. Reversed and remanded.

It appears that, in the drawing of the jury, 18 were drawn, but only 13 appeared. The court impaneled a jury of 12, and proponents challenged one of them, whereupon the court called around the thirteenth man to appear, and the proponents accepted him. The proponents then moved the court to require the contestant to pass upon the thirteenth man before he had taken his seat in the jury box; but the court declined to require them to do this, and put the 12 men on the contestant. The proponent then challenged another member of the jury drawn as aforesaid, who was qualified and who was declared satisfactory to the proponent, when the same motion was made as to him and denied by the court, and this was kept up until the jury was completed.

The grounds of contest were: (1) That the paper was not duly executed as the last will and testament of Martha Higgins (2) that at the time of its execution she was of unsound mind; (3) that her mental and physical condition was such as to render her incapable of executing a valid will and testament; (4) dominion and undue influence of some of the proponents over the testator; (5) a conspiracy, on account of her condition, among the proponents and others to induce her to move over to their home, and to remain there while she was sick, and that while in this condition they procured the execution of said will, without the knowledge of any of her family or relatives, had it executed secretly, and retained its possession and custody after its execution, and that it was done without any independent advice, and was wholly the result of such influence and fraud.

The proponent requested the following charge which was refused (E) "I charge you that, if you believe all of the evidence, you will find that the will was executed with all the formalities required by law. If the name of the testatrix was affixed to the will, either by Dr. Lee by request of testatrix, or by Dr. Lee directing the hand of testatrix, I charge you that this was sufficient signature under the law."

The following charges were given at the request of the contestant: (4) "In determining the credibility of any witness, the jury can consider the manner of the witness on the stand, and whether he has made contradictory statements." (22) "If you are reasonably satisfied from the evidence that the party who wrote the will made contradictory statements about the same, you can consider the same in determining what weight to give to his evidence." (5) "It is common knowledge that the use of morphine, taken constantly, subdues and weakens more or less the will power and independence of mind; and hence you can look to the fact, if it be a fact, that testatrix was under the influence of morphine at the time of making the will, and was in no mental condition to make a testamentary disposition of her property." (6) "In determining whether testatrix was competent to make a will, you can consider the condition of testatrix, her mental and physical condition at the time, whether she was confined to her bed, and whether her will power and independence of mind were subdued and weakened by morphine and sickness and old age." (7) "I charge you, gentlemen of the jury, that the issue in this case, on the question of mental capacity to make the will offered for probate, is to be determined by the mental status of the testatrix at the time of the execution of the will, and the law declares the standard to be that the testatrix shall have had mind and memory sufficient to understand and know what she was doing at the time the witness Lee read over to her the will, or she read the same over and signed the same, and requested him to witness the same, and also at the time the witness Whitten signed the same. In determining that issue you are to consider all the evidence offered as to her mental condition, that relating to her condition prior to the alleged execution, as well as that subsequent to the alleged execution; and if the evidence reasonably satisfies you that, in the interval between the signing of the will by the witness Lee and the time of the alleged request of the witness Whitten to sign the same, and his signing accordingly, that the testatrix was given or administered opiate, and that she was under the influence of the same, you may consider such fact in connection with all the other evidence in the case in determining the issue of the mental capacity or incapacity to make the will." (8) "If the jury believe from the evidence that the testatrix was at the time of the execution of said will under the influence of morphine or opiate, that she was mentally incompetent to make a testamentary disposition of her property, your verdict will be for the contestant."

George P. Jones and A. H. Carmichael, for appellants.

Emmett O'Neal and Paul Hodges, for appellees.

SIMPSON J.

This is a contest of the will of Martha Higgins, deceased, filed by the appellees. Only 13 of the 20 persons summoned as jurors answered to their names, and the proponent moved the court to have 7 jurors summoned, which motion the court overruled, and had 12 jurors placed in the box. There was no error in this. Section 6198 of the Code of 1907 provides that "from the persons so summoned and in attendance a jury shall be organized," and there is no provision requiring 20 to be in attendance before the jury is formed.

As to the order in which the challenges were required to be presented, our statute has not prescribed any order, and the authorities are clear to the point that this is a matter resting in the sound discretion of the trial court, and will not be revised unless there has been an abuse of that discretion to the injury of the party complaining. Wilson v. State, 31 Ala. 371, 375; Barker v. Bell, 49 Ala. 284, 291; Scheiffelin v. Scheiffelin, 127 Ala. 14, 33, 28 So. 687; Hodge et al. v. Rambo, 155 Ala. 175, 176, 45 So. 678; Gravely v. State, 45 Neb. 878, 64 N.W. 452; 1 Thompson on Trials, § 94, p. 91; 24 Cyc. 365; 12 Ency. Pl. & Pr. 501. We cannot say that it was such an abuse of the discretion reposed in the court as to constitute reversible error.

The next assignment of error insisted on is the refusal of the court to give charge E requested by the proponent. When a charge contains several distinct alternative propositions, each alternative must be correct, in order to place the court in...