Campbell v. Moore

Supreme Court of Alabama

Campbell v. Moore

124 Ala. 236

DecidedNovember 15, 1899

StatusPublished

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Bluebook

Campbell v. Moore, 124 Ala. 236 (Ala. 1899).

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Opinion

SHARPE, J.

— The last demurrer to the bill as amended is identical Avith that interposed before the last appeal.— (Moore v. Campbell, 113 Ala. 587.) Upon that appeal it was held that the demurrer Avas not good and that decision is adhered to.

The record fails to sIioav Avlien the deposition of Helen Hodgson Bailey Avas taken. It cannot therefore be seen that the motion to suppress it because taken.too late had any support in fact.

The laAV of this case was settled upon the íavo former appeals. — Moore v. Campbell,supra, and same case, 102 Ala. 445. Since the last remandment answer has been made, the evidence', taken and a decree had upon the merits. The question noAV brought for revieAV is mainly one of fact. This must be disposed of in view of the rule that strong proof is required to engraft an oral trust upon a will. — Bishop v. Bishop, 13 Ala. 486.

There is evidence on the part of the complainant tending to sIioav that the residuum of the personal estate received by appellant under the Avill of Mrs. Bice is far in excess of complainant’s claim and there is no denial of this fact in the record. Upon the question as to whether the appellant agreed with the testatrix to pay Mrs. Donegan five hundred dollars out of that residuum there is conflict in the evidence.

A careful examination of the evidence as a Avhole results in our conclusion that it supports the material allegations of the bill and that the. chancellor did not err [238]*238in granting relief. The decree will be affirmed at appei lant’s cost. ’ •

Affirmed.

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SHARPE, J.

— The last demurrer to the bill as amended is identical Avith that interposed before the last appeal.— (Moore v. Campbell, 113 Ala. 587.) Upon that appeal it was held that the demurrer Avas not good and that decision is adhered to.

The record fails to sIioav Avlien the deposition of Helen Hodgson Bailey Avas taken. It cannot therefore be seen that the motion to suppress it because taken.too late had any support in fact.

The laAV of this case was settled upon the íavo former appeals. — Moore v. Campbell,supra, and same case, 102 Ala. 445. Since the last remandment answer has been made, the evidence', taken and a decree had upon the merits. The question noAV brought for revieAV is mainly one of fact. This must be disposed of in view of the rule that strong proof is required to engraft an oral trust upon a will. — Bishop v. Bishop, 13 Ala. 486.

There is evidence on the part of the complainant tending to sIioav that the residuum of the personal estate received by appellant under the Avill of Mrs. Bice is far in excess of complainant’s claim and there is no denial of this fact in the record. Upon the question as to whether the appellant agreed with the testatrix to pay Mrs. Donegan five hundred dollars out of that residuum there is conflict in the evidence.

A careful examination of the evidence as a Avhole results in our conclusion that it supports the material allegations of the bill and that the. chancellor did not err [238]*238in granting relief. The decree will be affirmed at appei lant’s cost. ’ •

Affirmed.

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124 Ala. 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/campbell-v-moore-ala-1899.

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