Opinion
8 Div. 315.
October 20, 1921.
Appeal from Probate Court, Jackson County; A. H. Moody, Judge.
Cooper Cooper, of Huntsville, C. C. Moore, of Chattanooga, Tenn., and John F. Proctor, of Scottsboro, for appellants.
The court erred in not admitting the testimony of the expert, and in admitting the testimony of a nonexpert. 80 Ala. 129; 100 Ala. 157, 14 So. 685, 46 Am. St. Rep. 33; 127 Mass. 414: 144 Iowa, 400, 120 N.W. 1044, 122 N.W. 928; 21 Mich. 123. The oral charge of the court was error. 40 Cyc. 1144; 131 Ala. 606, 31 So. 94; 119 Ala. 641, 24 So. 459. Charge 1 should have been given. 62 Ill. 196, 14 Am. Rep. 79. Charge 10 should have been given. 131 Ala. 606, 31 So. 94; 52 Ala. 430; 82 Ala. 129, 2 So. 753; 96 Ala. 596, 11 So. 636. Charges 14 and 16 should have been given. Authorities supra.
Milo Moody and Bouldin Wimberly, all of Scottsboro, for appellees.
The court properly sustained demurrers to 4th and 5th grounds of contest. 114 Ala. 623, 22 So. 17; 119 Ala. 641, 24 So. 459; 195 Ala. 471, 70 So. 148. The court did not err in refusing to admit testimony as to the source of title of property devised. 169 Ala. 416, 53 So. 750. Evidence of Dr. McQuillen was properly excluded. 28 Ala. 100. The hypothetical question was not supported by the facts in evidence. 139 Ala. 16, 36 So. 1012; 195 Ala. 397, 70 So. 763; 22 C. J. 710. Mann was guilty of undue influence and occupied no confidential relations. 172 Ala. 295, 55 So. 314; 95 Ala. 486, 11 So. 204, 36 Am. St. Rep. 227; 106 Ala. 84, 17 So. 187, 54 Am. St. Rep. 22; 88 Ala. 462, 7 So. 250; 91 Ala. 279, 8 So. 286, 24 Am. St. Rep. 904; 119 Ala. 663, 24 So. 459; 31 Ala. 59, 68 Am. Dec. 150; 197 Ala. 239, 72 So. 500.
The will of J. F. Washington, propounded for probate by the executors named therein (appellees), was sustained on the trial of its contest by the appellants, next of kin of the decedent. Its date of execution was June 27, 1918. The grounds of contest were those usually interposed, viz.: No due execution of the will; want of testamentary capacity to make a will; and undue influence exerted by certain persons. The law applicable to and governing such contests has been repeatedly stated by this court; and, hence, repetition is not necessary. The evidence was undisputed that the instrument was executed in accordance with the law's prescriptions for the execution of a will. The court submitted to the jury's solution the issues tendered by the other grounds of contest. The burden of proof in respect of the grounds asserting mental incapacity and undue influence was, throughout, upon the contestants. The services rendered by E. K. Mann on June 27, 1918, at the request of Washington, in composing the instrument offered for probate from J. F. Washington's earlier will of 1911, and in calling J. H. McMahan and C. E. Timberlake to attest the execution of the instrument offered for probate, were shown without dispute to have been the result, and that, only, of Washington's desire and directions — in no sense the officious or selfishly inspired activity of E. K. Mann. "Such activity, not of proponent's own motion, or prompted by personal motives, but in behalf of the testatrix, in furtherance of her purposes, will not combine with confidential relations to shift the burden of proof as to undue influence upon the proponent." Eastis v. Montgomery, 95 Ala. 486, 493, 11 So. 204, 206 (36 Am. St. Rep. 227); Cunninghame v. Herring, 195 Ala. 469, 472, 473, 70 So. 148, among others. Furthermore, Mann was not a beneficiary under the instrument. He is named as co-executor only, and hence the rule of law which shifts to the proponent the burden of proof in proper cases has no application under the facts disclosed by this record. Cunninghame v. Herring, supra. These considerations confirm the correctness of the court's action in refusing the contestants' several special requests for instructions that would advise the jury to a contrary effect.
The court did not err in sustaining demurrers to grounds of contest numbered 4 and 5, for that they omitted, as the demurrers pointed out, to name the person or persons averred to have exerted undue influence upon the testator. Letohatchie Church v. Bullock, 133 Ala. 552, 32 So. 58; Alexander v. Gibson, 176 Ala. 262, 57 So. 760; Cunninghame v. Herring, supra; Coghill v. Kennedy, 119 Ala. 641, 655, 656, 24 So. 459.
There was no error in denying contestants' effort to trace the source or sources of the estate left by the testator. Such a circumstance had no bearing upon or relation to issues in contest. Winston v. Elliott, 169 Ala. 416, 53 So. 750.
Likewise, there was no error in excluding the opinion of the medical expert that the medical view, or the witness' view, would assign to the category of the erratic or disordered a mind that discriminated, in the testamentary disposition of all his property, in favor of the testator's illegitimate child or children against his blood relatives. The subject of this phase of the expert witness' opinion was not the proper basis for an expert opinion in the premises and was well excluded. The considerations that naturally inspire generosity, if not the observance of duty, on the part of the father of an illegitimate child or children in bestowing his bounty upon the unfortunate offspring, have found adequate statement in Dunlap v. Robinson, 28 Ala. 105, 106.
In consequence of the fact that the testator constructed his last will, in 1918, upon or through the process of copying provisions of his will of 1911, expressions inaccurate or inapt in the changes time had made were reproduced in his will of 1918. This matter was fully developed in the evidence; and the points of incongruity were disclosed in the comparison available between the instruments, both of which were in evidence. A question to the medical expert sought, upon this and other elements of premise or hypothesis, to elicit his opinion of the state of a mind that would or did carry forward such faulty, if not impossible, directions or asserted motives in the later will. The court sustained the objections to the hypothetical question indicated. This ruling might be justified on other grounds; but it will suffice to note that the hypothesis laid in the question did not, as it should have done, comprehend the fact, necessary, we think, to the formation of an opinion on the particular matter indicated, that the testator used his earlier will, in which the expressions were not then inapt, as the basis for the redraft of his later will of 1918. The discretion trial courts are required to exercise in respect of the examination of experts on hypothetical interrogatories was not abused in the ruling under review. Pullman Co. v. Meyer, 195 Ala. 397, 401, 402, 70 So. 763, among others.
Complaint is made of the action of the court in admitting the opinion of testator's soundness of mind by the witnesses Timberlake, Baker, English, and McCrary. The court did not err in holding these witnesses to be sufficiently qualified by acquaintance with and opportunity for observation of Washington to form and entertain an opinion of his mental soundness. Wear v. Wear, 200 Ala. 345, 348, 76 So. 111.
The oral charge of the court, in defining mental capacity requisite to make a will and undue influence that avoids a will, employed the phrasing found in many decisions here. The oral charge was not subject to the criticisms taken by appellants.
In the brief filed for appellants on submission of the appeal the refusal to appellants of special charges 1, 10, 14, and 16 alone is pressed as the basis of error. The review is necessarily confined, in respect of charges refused to appellants, to those enumerated. L. N. v. Holland, 173 Ala. 675, 694, 55 So. 1001; Holloway v. Calvin, 203 Ala. 663, 664, 665, 84 So. 737, among others. The enumerated charges were refused without error. Those relating to the shifting of the burden of proof because of E. K. Mann's acts in rewriting the will of 1918, from the earlier will of 1911, and in calling the attesting witnesses, etc., have been considered and held erroneous in this opinion.
There is no error in the record. The decree probating the will is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.