Opinion
1 Div. 433.
May 17, 1951. Rehearing Denied June 28, 1951.
Appeal from the Circuit Court, Mobile County, Cecil F. Bates, J.
Hubert M. Hall, Bay Minette, and Ray Giles, Birmingham, for appellant.
In order to be effectual, a will must be in writing, signed by the testator, and attested by at least two witnesses who must subscribe their names thereto in the presence of the testator. Code, 1940, Tit. 61, § 24. The word "subscribe" when used in a statute relating to the execution of documents by obligor or attesting witness, such as the statute of frauds and the statute of wills, means to set under, or write under, or underneath, the document, as opposed to signature at some other place, and the signature required to be subscribed must be at the end of the instrument. Bunch v. Garner, 208 Ala. 271, 91 So. 114; Paul v. Davenport, 217 N.C. 154, 7 S.E.2d 352; Soward v. Soward, 62 Ky. 126, 1 Duv. 126; James v. Patten, 6 N.Y. 9, 55 Am.Dec. 55; Baker v. Baker's Estate, 199 Miss. 388, 24 So.2d 841; Stone v. Marvel, 45 N.H. 481; Loughren v. Bonniwell, 125 Iowa 518, 101 N.W. 287, 106 Am.St.Rep. 319; Leask v. Horton, 39 Misc. 144, 79 N.Y.S. 148; Owens v. Bennett, 5 Har.Del., 367; Patterson v. Ranson, 55 Ind. 402; Commonwealth v. Barhight, 75 Mass. 113, 9 Gray, 113; Stratton v. Shoenbar, Me., 10 A. 446; American Surety Co. v. Worcester Cycle Co., C.C., 100 F. 40; Lawson v. Dawson's Estate, 21 Tex.Civ.App. 361, 53 S.W. 64; In re Seaman's Estate, 146 Cal. 455, 80 P. 700; In re Moore's Estate, 92 Cal.App.2d 120, 206 P.2d 413; In re Arcowsky's Will, 171 Misc. 41, 11 N.Y.S.2d 853; Williston on Contracts, Rev.Ed. P. 1684. The court must not, in instructing the jury, assume and take for granted that controverted material facts are true. Reynolds v. Massey, 219 Ala. 265, 122 So. 29; De Loach Mills v. Middlebrooks, 95 Ala. 459, 10 So. 917; Williams v. Ellington, 233 Ala. 638, 172 So. 903. A will, in order to be legally effective as such, must purport, within its four corners and upon its face, to be posthumous disposition, and the name ascribed to the document by the alleged testator and borne by it is a material matter for consideration in determining whether or not the document is a will. Craft v. Moon, 201 Ala. 11, 75 So. 302; Wiggins v. Wiggins, 241 Ala. 333, 2 So.2d 402; Marsh v. Rogers, 205 Ala. 106, 87 So. 790; Young v. Wark, 76 Miss. 829, 25 So. 660; In re Perry's Will, 193 S.C. 397, 137 S.E. 145. The burden of proof upon a contestant is to establish lack of testamentary capacity to the reasonable satisfaction of the jury, and an instruction requiring the jury to be satisfied, instead of reasonably satisfied, exacts too high a degree of proof, and the giving of such instruction is prejudicial error requiring reversal. Johnston v. Johnston, 174 Ala. 220, 57 So. 450; Nabers v. Long, 207 Ala. 270, 92 So. 444. To allow a lay witness to give his conclusion or understanding as to the legal effect of a document is not permissible. Alabama Great Southern R. v. Flinn, 199 Ala. 177, 74 So. 246; Gaston v. McDonald, 220 Ala. 155, 124 So. 208; Henderson v. Brunson, 141 Ala. 674, 37 So. 549; Industrial Sav. Bank v. Mitchell, 25 Ala. App. 13, 140 So. 449. A lay witness may not be allowed to express an opinion as to the sanity, vel non, of the testator, without proof of familiarity with the testator and testimony as to the facts upon which such an opinion is based. Tucker v. Tucker, 248 Ala. 602, 28 So.2d 637. Secrecy of execution and retention of an alleged will may be a badge of fraud, and such secrecy is a material matter of inquiry and consideration upon a will contest. Johnson v. Shaver, 41 S.D. 585, 172 N.W. 676. It is prejudicial error to admit proof of conduct of prejudicial character on the part of one of the parties to a will contest, subsequent to the death of the alleged decedent, and prior to the funeral, when such conduct has no pertinency to any issue in the case. Jameson v. Hall, 37 Md. 221. Where a witness has willfully sworn falsely to a material fact in evidence, the jury is authorized to disregard, in its entirety, the testimony of such witness, and where such matter is material and important upon the trial, the refusal of an instruction to such effect is error. Merriweather v. Sayre Min. Mfg. Co., 161 Ala. 441, 49 So. 916. Judges are required to exercise great care to say nothing in the hearing of the jurors, while a case is progressing, which can possibly be construed to the prejudice of either party. It is error for the court to comment, unfavorably, in the presence of the jury, on the conduct of the trial by counsel for one of the parties. Sprinkle v. Davis, 4 Cir., 111 F.2d 925, 128 A.L.R. 1101; In re Parkside Housing Project, 290 Mich. 582, 287 N.W. 571. Under the law of Alabama, when a joint bank account is created, with the express written agreement that, upon the death of either of the two joint depositors, the entire account shall survive to and become the sole property of the survivor, such disposition is effective as a joint tenancy with right of survivorship, and, upon the death of one of the two joint depositors, the funds become the sole property of the survivor. Acts 1945, p. 354; Code 1940, Tit. 5, Sec. 128.
Alvin McConnell, Mobile, for appellee.
Under Section 2, Title 61, Code of Alabama, 1940, it is not necessary that the attesting witnesses to a will sign their names at the foot or end of the will and the requirement that they subscribe their names is met by the witnesses affixing their respective signatures on any part of the will with the intention of attesting it, the essential thing being that by their signatures they meant to affirm that the deceased executed the will in their presence. Barnewall v. Murrell, 108 Ala. 366, 18 So. 831; Armstrong's Exec. v. Armstrong's Heirs, 29 Ala. 538; Riley v. Riley, 36 Ala. 496; Roberts v. Phillips, 4 El. Bl. 450; 30 Eng.L. Eq. 147, 119 Eng.Repr. 162; Braddock's Goods, L.N., 1 Prob.Div. (Eng.) 433; Horsford's Goods, L.R., 3 Prob. Div. (Eng.) 211; 44 L.J.Prob.N.S. 9; 31 L.T.N.S. 553; 23 Week.Rep. 211; Harris' Goods, 25 Week.Rep.Eng. 734; Ellison's Goods, 2 Ir.R. 480; Streatley's Goods, L.P.R.Eng. 172; 39 Week.Rep. 432; Bolton v. Bolton, 107 Miss. 84, 64 So. 967; In Re Collins, 5 Redf. N.Y., 20; Moale v. Cutting, 59 Md. 510; Kolowski v. Fausz, 103 Ill. App. 528; Potts v. Felton, 70 Ind. 166; Franks v. Chapman, 64 Tex. 159; Murray v. Murphy, 39 Miss. 214; In re Walker's Estate, 110 Cal. 387, 42 P. 815, 1082, 30 L.R.A. 460; Bunch v. Garner, 208 Ala. 271, 94 So. 114; Elston v. Price, 210 Ala. 579, 98 So. 573; Massey v. Reynolds, 213 Ala. 178, 104 So. 494; In re Rothstein's Estate, 133 Misc. 547, 233 N.Y.S. 235. It was not reversible error to give Charge 12. Eastis v. Montgomery, 95 Ala. 486, 11 So. 204. It is not reversible error to admit in evidence irrelevant testimony which could not affect the verdict. Saunders v. Tuscumbia Roof. Plumb. Co., 148 Ala. 519, 41 So. 982, 983. An instruction to the jury is not rendered improper by assuming facts of which there is evidence, which are not disputed or controverted by the evidence or tendency of the evidence, even though the party has the burden of proof of such facts in order to make out a prima facie case under the issues. Alabama Power Co. v. Hines, 207 Ala. 346, 92 So. 611. A charge stating a correct proposition of law but failing to sufficiently hypothesize facts may be misleading, but such misleading tendency may be thoroughly neutralized by the oral charge of the Court and given written instructions requested by the other party. Tingle v. Worthington, 215 Ala. 126, 110 So. 143. It is not reversible error to give a written requested charge which has misleading tendencies, particularly when the opposing party fails to request an explanatory charge. McCalley v. Penney, 191 Ala. 369, 67 So. 696, 697. Whether or not an instrument is testamentary in character depends upon the intention of the maker, which may be ascertained not only from the writing itself, but from the light of attending facts and circumstances. Wiggins v. Wiggins, 241 Ala. 333, 2 So.2d 402; Rice's Adm. v. Rice, 68 Ala. 216; Kinnebrew's Distr. v. Kinnebrew's Adm'rs, 35 Ala. 628. No matter by what name an instrument may be referred to by the party executing it, the intention being a posthumous disposition of property it is a will. Walker v. Jones, 23 Ala. 448. Requested written instructions to the effect that the jury may consider certain facts, if they be facts, together with all the other evidence in the case in determining certain questions, are argumentative and it is not error to refuse to give them. Alabama Consol. Coal Iron Co. v. Heald, 168 Ala. 626, 53 So. 162; Louisville N. R. Co. v. Young, 168 Ala. 551, 53 So. 213; Louisville N. R. Co. v. Holland, 173 Ala. 675, 55 So. 1001. Secrecy on the part of the testator as to the fact of his having made a will or of the contents thereof is evidence of good judgment and sound mind rather than of undue influence or fraud. 68 C.J., Wills, § 475; In re Heaverne's Estate, 118 Or. 308, 247 P. 720. Any error in admission of evidence over objection of a party is rendered harmless or is error without injury when the same evidence comes in afterwards without objection or is introduced by the other party. Johnson-Brown v. Dominey Produce Co., 212 Ala. 377, 102 So. 606; Simmons v. Cochran, 252 Ala. 461, 41 So.2d 579. Attesting witnesses to a will are competent to give an opinion as to the soundness of mind of the testator without other qualifications as to acquaintance or association with decedent and without stating the facts on which the conclusion was reached. Shirley v. Ezell, 180 Ala. 352, 60 So. 905; East v. Karter, 218 Ala. 366, 118 So. 547; Lowery v. Lowery, 225 Ala. 376, 143 So. 556. Not only is it not error to refuse but it is error to give a charge authorizing the jury to disregard the entire testimony of a witness who has sworn falsely to a material fact, without confining such authority to cases where such false swearing is wilfully done. Steele-Smith Dry Goods Co. v. Blythe, 208 Ala. 288, 94 So. 281. An attorney is subject to reprimand by the Court for improper conduct and the severity of the rebuke is in the discretion of the trial court so long as it doesn't prevent a party from having a fair trial. In re Parkside Housing Project, 290 Mich. 582, 287 N.W. 571; Sprinkle v. Davis, 4 Cir., 111 F.2d 925, 128 A.L.R. 1101. If a party deems remarks of the judge prejudicial, he should invoke action of the Court thereon; he cannot speculate upon a favorable verdict and, failing therein, have the cause reversed. Tucker v. Tucker, 248 Ala. 602, 28 So.2d 637; Schrimsher v. Carroll, 225 Ala. 188, 142 So. 547; Page v. Hawk, 250 Ala. 26, 33 So.2d 8.
These charges were given at proponent's request:
"Charge 5. The court charges the jury that when Mrs. Lucile Williamson and Mrs. Beatrice Smith wrote their respective names as witnesses to the will at the request of Hattie T. Hughes and in her presence, under the phrase 'witnessed by' and alongside the word, 'witness', they impliedly certified thereby that they saw Hattie T. Hughes sign her name to the instrument, or that they saw the name of Hattie T. Hughes on it and Hattie T. Hughes acknowledged that it was her signature."
"Charge 12. The court charges the jury that sanity is the normal condition of the human mind and the testatrix in this case is presumed by the law to have been sane when she made the will, unless the contestant has shown to the jury's satisfaction that she was under the disability of habitual or fixed insanity prior to the execution of the will or that she was not capable of making a will at the time the will was made."
"Charge 94. The court charges the jury that the name by which an instrument is referred to by the party executing it is immaterial. No matter by what name it may be referred to, an instrument is a will if the intention of the party executing it is that it operate as a posthumous disposition of her estate."
These charges were refused to contestant:
"Charge 21. If the jury is reasonably satisfied from the evidence that any witness has testified falsely about a material fact in this case, then the jury may, in its discretion, disregard all of said witness' testimony."
"Charge 22-B. The court charges the jury that if you are reasonably satisfied from the evidence that the paper here offered as the will of Hattie C. Hughes was kept secret until her death, then you may consider such fact in determining the issues in this case."
"Charge 28. The court charges you gentlemen of the jury, that if Hattie T. Hughes, did, with competence and free will, set up with her son, Hunt C. Hughes, a joint bank account, or accounts, payable to either of them or to the survivor of them at the death of the other; then, upon the death of Hattie T. Hughes, all the funds remaining in said account or accounts did by the laws of the State of Alabama become the property solely of her son, Hunt C. Hughes. The court further charges you that the question whether or not Hattie T. Hughes did or did not so set up a joint bank account, or accounts, with her son, prior to the time when the document propounded in this case for probate as her last will was allegedly executed, may be considered by you, along with all the other evidence in the case, in determining the question whether or not Hattie T. Hughes was mentally competent to make a will, and whether she actually intended to execute the document at the time of its alleged execution; and whether, if she did execute said document, she intended or did not intend it to constitute her last will and testament."
This is a will contest by appellant, the only heir at law of testatrix, Hattie T. Hughes, who owned property in and was a resident of Mobile, Alabama, at the time of her death. Theo Little, a niece, was named as executrix and was one of the beneficiaries under the will. She propounded the instrument for probate, but died pending the proceedings and the cause was revived in the name of appellee, as her administrator. The instrument propounded for probate as the last will and testament of Mrs. Hughes reads as follows:
"Theo Little, Executrix Hunt C. Hughes, Executor, without Bond.
"A statement made by Mrs. Hattie Hughes witnessed by Mrs. Lucile Williamson, R. N. Witness; Mrs. Beatrice Smith, R. N. Witness.
"I want Theo to have One Thousand ($1000.00),
"I want Berta to have One Thousand ($1000.00),
"I want Claudia to have One Thousand ($1000.00),
"I want Harriet to have One Thousand ($1000.00),
"I want Dodie Jones to have 100.00 (hundred),
"I want Mary Kindley to have 100.00 (hundred),
"I want Harriet to have diamond necklace Round Pin; later to go to little Hughes.
"I want Dodie to have Pin with six diamonds.
"I want all my bills paid.
"I want Hunts wife to have Cameo Pin with Pearls.
"I want Josephine to have Garnet Pin.
"I want Kathleen Yeager to have Gold Bracelet.
"I want Theo to have everything in her house she wants.
"Hunt to have the rest.
"Surlie Taylor $100.00 (hundred).
"June 3, 1947. "(SGD) Hattie T. Hughes."
The primary inquiry is whether the will was duly executed and involves a construction of that portion of § 24, Title 61, Code 1940, of our statute which requires that for such an instrument to be effectual as a will it must be "attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator." (Emphasis supplied.)
The two subscribing witnesses, Mrs. Williamson and Mrs. Smith, as appears, rather than signing their names at the end of the instrument, attested it toward the beginning. The evidence for proponent tended to show that Mrs. Hughes did request these two ladies to witness the instrument and that they each signed their names, as indicated, in the presence of each other and in the presence of Mrs. Hughes, after Mrs. Hughes had signed her name in their presence, with appropriate words indicating an intention that it be her will.
It is argued by appellant that because the attesting witnesses did not sign at the conclusion or end of the instrument, it was not subscribed pursuant to the statute and was therefore not effectual as the last will and testament of the signatory. We have given this argument serious consideration and have engaged in considerable research, but, like the trial court, are convinced the statute is not subject to that construction. There are statutes in some states which require that the testator and the attesting witnesses must sign or subscribe at the end of the will, 57 Am.Jur. 256, § 348; 10 A. L.R. 429; In re Walker's Estate, 110 Cal. 387, 42 P. 815, 1082, 30 L.R.A. 460, 52 Am.St.Rep. 104, but ours does not so provide.
This section of our statute of wills, like its original predecessor embodied in the Code of 1852 (and the intervening ones) relating to the subscription of testamentary documents by attesting witnesses, is a substantial counterpart or transcript of that part of the fifth section of the English statute, 29 Charles II, Chapter 3, § 5, which authorized persons of the age of twenty-one years to make devises (then of real estate only) by last will and testament in writing, " provided, that such last will and testament is signed by the testator or testatrix, or by some person in his or her presence, and by his or her direction, and attested by three or more respectable witnesses, subscribing their names thereto in the presence of such devisor." Barnewall v. Murrell, 108 Ala. 366, 376, 18 So. 831, 836; Armstrong's Ex'r v. Armstrong's Heirs, 29 Ala. 538. The considered section of our will statute having come from the English statute, this court has consistently adopted the construction placed on the mother statute. As was said in Armstrong's case: "* * * the construction which had been put upon that part of the British statute, and settled as its true construction, by the British decisions before the adoption of our statute, ought to be regarded as the construction which our legislature intended to be put upon that part of our statute now under consideration. We shall adopt and follow that construction." 29 Ala. 540. (Emphasis supplied.) The principle was reasserted by Chief Justice Brickell in Barnewall v. Murrell, supra, 108 Ala. 377, 18 So. 831. Being without authority from our own court, therefore, we think it sound to adhere to this salutary rule and will look to the decisions of the English courts for guiding precedent.
The English courts in interpreting the quoted provision of their wills act held a signing at the end or foot of the instrument was not necessary, the requirement being met by the signature of the witnesses on any part of the will, with the intention of attesting it. Walker's Estate, supra; Roberts v. Phillips, 4 El.Bl. 450, 119 Eng. Reprint 162; Braddock's Goods, L.R. 1 Prob.Div. (Eng.) 433; Horaford's Goods, L.R. 3 Prob.Div. (Eng.) 211, 44 L.J. Prob.N.S. 9, 31 L.T.N.S. 553, 23 Week.Rep. (Eng.) 734; Ellison's Goods, 2 Ir.R. 480; Streatley's Goods, L.R.P. (Eng.) 172, 39 Week.Rep. 432; Harris' Goods, 23 Week.Rep. (Eng.) 734.
The leading English case which first considered the question is Roberts v. Phillips, supra, where one of the attesting witnesses signed his name in the body of the instrument, the other two at the end, three subscribing witnesses then being the statutory requirement. It was held, Lord Campbell, C. J., writing, that the will was properly attested. It was there said: "* * * The mere requisition that the will shall be subscribed by the witnesses, we think, is complied with, by the witnesses who saw it executed by the testator immediately signing their names on any part of it at his request, with the intention of attesting it. * * *" 4 El.Bl., 458.
This court as early as Riley v. Riley, 36 Ala. 496, 502, seemed to have intimated a like view where it quoted with approval the following definition of Sir H. Jenner Fust: " 'The witnesses are to subscribe; in other words, they are required, I conceive, to do an act which shall be apparent on the face of the will.' To subscribe, is defined to be, 'to set one's hand to a writing,' (Pridgen v. Pridgen's Heirs, 35 N.C. [259], 260,) and this the act requires the witnesses to do."
Also, in the much later case of Elston v. Price, 210 Ala. 579, 98 So. 573, Gardner, J., later Chief Justice, speaking for this court, quoted with approval the New Hampshire case of Tilton v. Daniels, 79 N.H. 368, 109 A. 145, 8 A.L.R. 1073, and concluded with the result that "The essential thing is that 'by the signature [the witness] meant to affirm that the deceased executed the will in his presence'." 210 Ala. 581, 98 So. 574. The opinion also approvingly quoted from the Massachusetts case of Smith v. Buffum, 226 Mass. 400, 115 N.E. 669, L.R.A. 1917D, 894, where it was pointed out that the English construction of the statute of wills should be the proper guide for interpretation.
The latest case from our court treating of this particular provision is Johnston v. King, 250 Ala. 571, 35 So.2d 202, holding that a will is properly subscribed by the attesting witnesses even though the subscription be on a different sheet of paper, just so the sheets are so connected and coherent in meaning and by an adaptation of the several parts as to be a testamentary whole. Though this case is no direct authority for decision here, its rationale is strongly persuasive of the conclusion we reach that to "subscribe" as used in the statute was not intended to be used in its literal, primary sense, but in its broader meaning to attest by signing the witness' name as an act done with the intention of his witnessing the execution of the will. This is easily deducible from the holding in that case to the effect that the statutory requirement that the attesting witnesses "must subscribe their names thereto" was complied with where a notary public in Germany filled in a "protocol" (separate instrument of attestation) on an official printed form referring to the testatrix' unwitnessed will, the protocol then being signed by the testatrix and the three attesting witnesses (and the notary public) in each other's presence and attached by a cord to the will and placed in a sealed testament envelope. We might add this decision also is consonant with English precedent. In re Goods of Almosnino, 6 Jur.N.S. (1860) 302.
We hold, then, that a compliance with § 24 of our will statute does not require that the attesting witnesses sign their names at the foot or end of the will, but that the proviso is met by the attesting witnesses affixing their respective signatures on any part of the will with the intention of attesting it, the essential thing being that by their signatures they intended to affirm that the testator executed the will in their presence. The instrument under consideration was, therefore, admissible in evidence as the last will and testament of Hattie T. Hughes, resulting that there was no error either in its introduction, in the giving of the proponent's several written charges to that legal effect, or in the refusal of the several requested charges of contestant seeking to hypothesize the contrary theory.
Cogent argument urges that Bunch v. Garner, 208 Ala. 271, 94 So. 114, opinion by Miller, J., is sustaining authority to the contrary, but we cannot agree. There the section of our statute of frauds was under consideration providing that for the contract to be enforceable it or some note or memorandum thereof expressing the consideration must be in writing and "subscribed by the party to be charged therewith." Code 1940, Tit. 20, § 3. The court observed that from a construction of the entire contract it was not subscribed in conformity with the statute by the party to be charged with the intention of so binding him; that its phraseology indicated the names as used in the contract were not intended as a final signature, to wit: "* * * This phrase, 'the undersigned' as used therein, indicates the names as used in the contract were not intended as a final signature, but that the instrument was to be signed under it * * *," indicating that the parties "intended that the instrument was to be further executed * * *" 208 Ala. 273, 94 So. 116. There may be some general expressions and quotation of authority in the case which might lend color to the contention as advanced by appellant, but that case is not considered as controlling the question here presented. In the face of the clear construction impelled by our other cases, as well as sound reasoning, we think the conclusion we have reached to be the only proper one and it is so held.
The foregoing disposes of the crucial question in the case. There are, however, other propositions of law raised by the several assignments of error which require some treatment. The grounds of contest were (1) lack of due execution of the will, above disposed of; (2) lack of testamentary capacity of the testatrix; and (3) undue influence exerted by Mrs. Little. The remaining assignments of error relate to rulings on matters of evidence and to the giving of certain written charges for the proponent and the refusal of certain others requested by the contestant.
Error to reverse is sought to be predicated on the ruling of the court in permitting Mrs. Smith, one of the attesting witnesses, to answer the question propounded to her by counsel for proponent, "Was it your understanding there at that time, Mrs. Smith, that this document or statement or whatever it was you call it, was to take effect at the time of the death of Mrs. Hughes?" the witness answering, "Yes." True, a nonexpert witness may not give his or her opinion of the legal effect of a document, Alabama Great Southern Ry. Co. v. Flinn, 199 Ala. 177, 74 So. 246; Gaston v. McDonald, 220 Ala. 155, 124 So. 208; Henderson v. Brunson, 141 Ala. 674, 37 So. 549, but we are not so sure that such was the effect of this testimony; it may have been intended as a shorthand statement of what Mrs. Hughes was saying about the document, and the burden is on the appellant to show error. Also, a careful reading of the entire testimony of Mrs. Smith indicates to our minds that the contestant invited such an inquiry and it was merely in response to previous cross-examination of the witness, where counsel for contestant defined to the witness the constituents of a gift causa mortis and then inquired, "And you don't even know whether it [meaning the instrument] was a gift causa mortis or a gift at this time or whether it was to go to them after death, do you?" the witness answering, "No." Inviting such error, if indeed it be, the contestant cannot now take advantage of it.
The same witness was also allowed, over contestant's objection and exception, to give her opinion as to the soundness of mind of Mrs. Hughes without first showing prior opportunity for observation, etc. The ruling was proper. Attesting witnesses to a will are competent to give an opinion as to the mental capacity of the testator when the will was made, without other qualification as to association with the decedent and without stating facts on which the conclusion is based. Lowery v. Lowery, 225 Ala. 376, 143 So. 556; Shirley v. Ezell, 180 Ala. 352, 60 So. 905.
One other assignment of error with reference to the admission of evidence.
On cross-examination of appellant's wife, proponent undertook to show that upon their return trip to Mobile after Mrs. Hughes' death and before the funeral, appellant went to the bank and there transacted business involving the funds of Mrs. Hughes which had theretofore been deposited in a joint survivorship account. Without treating of the admissibility vel non of such evidence, it is sufficient to say that its admission cannot be made a predicate for reversal. This same evidence came in later by the testimony of appellant himself and was therefore without injury to him. Johnson-Brown Co. v. Dominey Produce Co., 212 Ala. 377, 102 So. 606; Simmons v. Cochran, 252 Ala. 461, 41 So.2d 579.
Giving of proponent's written charge 5 is pressed on us as error to reverse because of that portion which instructed the jury "that when Mrs. Lucile Williamson and Mrs. Beatrice Smith wrote their respective names as witnesses to the will etc.", the argument being that the charge invaded the province of the jury in assuming that the instrument was a will and that the witnesses did in fact write their names as witnesses to a will. Appellant concedes, however, that a charge somewhat similar, charge 1, in Reynolds v. Massey, 219 Ala. 265, 122 So. 29, was approved by the majority of the court as a correct proposition of law. We think at most the charge is merely misleading, since it appears from the context of the charge itself that the inquiry submitted to the jury was whether or not the instrument had been executed in accordance with the statute as a will. We do not think the jury could have assumed the court was telling them that the instrument was a will, since that was the main issue in the case, and the oral charge of the court and several given charges requested by the contestant accurately posed this issue. If there was any misleading tendency, the way was open to the opposing party to neutralize its effect by an explanatory charge. McCalley v. Penney, 191 Ala. 369, 67 So. 696; Emergency Aid Life Ass'n v. Gamble, 34 Ala. App. 377, 40 So.2d 887, certiorari denied 252 Ala. 282, 40 So.2d 888.
Error is also sought to be predicated on the giving of proponent's charge 12, which, in instructing with reference to the presumption of law as to sanity and the burden of showing lack of testamentary capacity to the satisfaction of the jury, omitted "reasonable." A similar charge was approved in Eastis v. Montgomery, 95 Ala. 486, 11 So. 204, Chief Justice McClellan writing, whereas it seems to have been disapproved later by the younger McClellan in Johnston v. Johnston, 174 Ala. 220, 57 So. 450, where it was observed: "* * * one alternative, exacted, as a condition to the shifting of the burden of proof, according to the doctrine just stated, that the contestants show to the jury's satisfaction that Johnston was, prior to the execution of the paper propounded, under the disability of habitual, fixed insanity. The degree of proof required by the instruction was too great. Reasonable satisfaction is the degree the law requires. * * *" 174 Ala. 227, 57 So. 453.
But it is obvious that the charge really was not one relating to the degree of proof required, but sought to instruct the jury with reference to the presumption of law as to sanity; and while the omission of the word "reasonable" might have rendered the charge inaccurate as regards the degree of proof required, we feel certain the giving of the charge resulted in no prejudice to the defendant on account of the full, lucid and specific oral charge of the court, as well as the contestant's given charge 8. Such instructions were replete with the specific admonition that the only burden the contestant carried on the issue was proof to the jury's reasonable satisfaction. Indeed, charge 12 in verbatim, with the added word "reasonable," was embodied in the oral charge. We can properly invoke the rule of error without injury to avert a reversal here. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
There was likewise no error to reverse in giving proponent's charge 94, since it is susceptible of the construction that as a matter of law the name which the maker might give to an instrument did not determine its character, but that the intention of the author would be the controlling factor. Walker v. Jones, 23 Ala. 448. The charge at most only had a tendency to mislead and could have been corrected by an explanatory charge, had the contestant so desired.
Charge 28 was properly refused as argumentative. Alabama Consol. Coal Iron Co. v. Heald, 168 Ala. 626, 53 So. 162; Louisville N. R. Co. v. Young, 168 Ala. 551, 53 So. 213; Louisville N. R. Co. v. Holland, 173 Ala. 675, 55 So. 1001.
For like reason charge 22 B was refused without error. Miller v. Whittington, 202 Ala. 406(14), 80 So. 499; Alabama Consol. Coal Iron Co. v. Heald, supra; Louisville N. R. Co. v. Young, supra; Louisville N. R. Co. v. Holland, supra.
Contestant's requested charge 21 was properly refused in that it pretermits that for the testimony of the witnesses to be disregarded, the witness must have "wilfully or corruptly" sworn falsely to a material fact, the quoted words being omitted from the charge. Steele-Smith Dry Goods Co. v. Blythe, 208 Ala. 288(3), 94 So. 281.
The final assignment relates to an episode which took place during the direct examination of one of contestant's witnesses, when his counsel, after the witness had testified to the lack of affection testatrix had for her son due to the bad company he kept, endeavored to show that among contestant's associates was the judge presiding at the trial. The court at this juncture said:
"Mr. Duggan, I don't think it is proper for you to bring the court into a question of that kind.
"Mr. Duggan: Your Honor please, I believe you are right about that.
"The Court: I think we have had too much of that. I think it is highly improper, and I want to tell you now that I never want it to occur again in my court room. I think it borders so close on contempt that the court should take some action in the matter.
"Mr. Duggan: If the Court please, if the Court feels that way about it, I want to offer my sincere apology to you, because it was not meant as any reflection.
"The Court: As long as you practice in my court, I never want you to take advantage of the court like that again.
"Mr. Duggan: Your Honor, I did not understand that I was injuring your feelings.
"The Court: I think it was done purposely, and simply for the purpose of endeavoring to bolster up your case."
We are not able to say that the remarks of the judge were so highly prejudicial as to influence the jury; but be that as it may, it was not error to reverse, because such interrogation was entirely improper and the contestant provoked the reprimand himself. Having done so, he is in no position to now take advantage of it.
We have given studious consideration to the voluminous record comprising over 700 transcript pages and many exhibits, in connection with the brief and argument of able counsel, but are constrained to hold that no error intervened pending trial which would authorize a reversal.
Affirmed.
LIVINGSTON, C. J., and BROWN and STAKELY, JJ., concur.