[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The contest of the probate of the will was decided in favor of proponents.
The grounds of contest were: (1) That the writing, purporting to be the last will and testament of T. M. Whittington, deceased, was not duly executed; (2) that at the time of its execution said Whittington was without testamentary capacity; and (3) that at said time said Whittington was under the domination and control of the proponent, Olin Whittington, and the will was the result of undue influence.
The statute fixing the procedure for such a contest provides that —
"A will, before the probate thereof, may be contested by any person interested therein, or by any person who, if the testator had died intestate, would have been an heir or distributee of his estate, by filing in the court where it is offered for probate allegations in writing that the will was not duly executed, or of the unsoundness of mind of the testator, or by any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court, between the person making the application, as plaintiff, and the person contesting the validity of the will, as defendant; and such issue must, on application of either party, be tried by a jury." Code, § 6196.
The statute is silent as to how the issue shall be made up. If the contest was by a bill in chancery, the proponent would file an answer admitting or denying the material allegations of the contest. Code, §§ 6207, 6209; Stephens v. Richardson,189 Ala. 360, 66 So. 497; Ex parte Colvert, 188 Ala. 650, 654,65 So. 964. By analogy it would appear that the proponent may, by permission of the court, specifically set out the issues of fact to be tried, by way of replication to a contest filed in the probate court. If such proceedings are prolix, redundant, unnecessary, or improper, the parts thereof transcending the rules of pleading should be stricken on motion. Barnett v. Freeman, 197 Ala. 142, 72 So. 395.
The grounds of contest comprised eleven sections, some of them averring the specific facts on which they rested. This pleading was unnecessarily prolix, and parts thereof could have been stricken on motion; yet it was the issue between the parties, on which the contest was tried, made up under the direction of the court, making the proponent the plaintiff and the contestants the defendants. A general replication thereto on the part of proponent would have put in issue the controverted grounds of objection to the probate. Code, § 5331. However, we will not reverse for the rulings of the trial court made thereon. If there was error in the manner of the making up of this issue, it was not calculated to affect the hearing and the judgment on the proper issues. Barker v. Bell, 49 Ala. 284; 40 Cyc. 1270.
As a witness for proponent, Judge Grubbs had testified that he lived at or near Clayton and the alleged testator lived at Mt. Andrew, and that he had known him for about 25 years. The paper shown witness was identified as that executed by the testator in the presence of witness and of a Mr. Cox, witness testifying that they each signed it in the presence of the other, as the last will and testament of T. M. Whittington, deceased. Proponent then asked witness, "What would you say as to his mental condition?" and the answer was:
"He was of sound mind. He was all right mentally; that is, he had testamentary capacity."
Due objection was made to the question; and exception reserved to the ruling of the court permitting the same, together with motion to exclude the answer, was overruled by the court. One of the issues being tried was the "testamentary capacity" of T. M. Whittington. Where there has been a long and intimate acquaintance with another, furnishing opportunity for the formation of correct judgment as to the mental condition of such person, a witness may give his opinion that the person "is of sound mind," since sanity is the normal condition of mankind. The general rule would not permit this witness, though an attesting witness to the purported will, to testify that the party executing the will had testamentary capacity at the time of its execution. The reason on which the rule is rested is that such issue of fact must be submitted to the judge or the jury trying the same, that they may draw the inference.
In Council v. Mayhew, 172 Ala. 295, 306, 55 So. 314, 317, Mr. Justice Somerville states the rule as follows:
"It is well settled that, on the issue as to testamentary capacity, a witness, whether expert or not, cannot testify that the testator was or was not capable of making a will, because, as it is said, this is the very issue to be submitted to the jury. Walker v. Walker, 34 Ala. 469, 473; Hall v. Perry, 87 Me. 569,33 A. 160, 47 Am. St. Rep. 352; 28 A. E. Ency. Law, 102. * * * The only exception to the rule stated is on the cross-examination of a witness who has testified as to the sanity or insanity of the testator, and then only to test the witness, and not to thus establish the fact. Dominick v. Randolph, 124 Ala. 557, 564, 27 So. 481." Torrey v. Burney,113 Ala. 496, 21 So. 348; 2 Jones on Ev. §§ 365, 367.
That this ruling of the trial court constituted reversible error we are without doubt. The evidence showed that, at the time of the preparation and execution of the paper in question Judge Grubbs was the probate judge
of the county in which the contest was being tried by a jury; that he carried the paper back to the county seat with him and placed it in the iron safe in the probate office with other probated wills. It is true that a part of the witness' answer as an attesting witness to the will, to the effect that at the time of the execution of the instrument the alleged testator was of sound mind, was competent under the recognized exception to the rule. McCurry v. Hooper, 12 Ala. 823, 828, 46 Am. Dec. 280; Shirley v. Ezell, 180 Ala. 352, 361, 60 So. 905; Walker v. Walker, 34 Ala. 469; Williams v. Spencer, 150 Mass. 346,23 N.E. 105, 5 L.R.A. 790, 15 Am. St. Rep. 206; 3 Wigmore on Ev. § 1936; 2 Jones on Ev. § 365 (367); 14 Ency. Ev. p. 388. The answer, however, did not stop there, but drew the conclusion of fact that only the jury or the judge trying the facts may draw.
It was competent for proponent to show that Olin Whittington told Judge Grubbs that T. M. Whittington was at his house, sick, and desired Grubbs to go there and write his will. It was not hearsay evidence for the witness to say, "Tom (T. M.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The contest of the probate of the will was decided in favor of proponents.
The grounds of contest were: (1) That the writing, purporting to be the last will and testament of T. M. Whittington, deceased, was not duly executed; (2) that at the time of its execution said Whittington was without testamentary capacity; and (3) that at said time said Whittington was under the domination and control of the proponent, Olin Whittington, and the will was the result of undue influence.
The statute fixing the procedure for such a contest provides that —
"A will, before the probate thereof, may be contested by any person interested therein, or by any person who, if the testator had died intestate, would have been an heir or distributee of his estate, by filing in the court where it is offered for probate allegations in writing that the will was not duly executed, or of the unsoundness of mind of the testator, or by any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court, between the person making the application, as plaintiff, and the person contesting the validity of the will, as defendant; and such issue must, on application of either party, be tried by a jury." Code, § 6196.
The statute is silent as to how the issue shall be made up. If the contest was by a bill in chancery, the proponent would file an answer admitting or denying the material allegations of the contest. Code, §§ 6207, 6209; Stephens v. Richardson,189 Ala. 360, 66 So. 497; Ex parte Colvert, 188 Ala. 650, 654,65 So. 964. By analogy it would appear that the proponent may, by permission of the court, specifically set out the issues of fact to be tried, by way of replication to a contest filed in the probate court. If such proceedings are prolix, redundant, unnecessary, or improper, the parts thereof transcending the rules of pleading should be stricken on motion. Barnett v. Freeman, 197 Ala. 142, 72 So. 395.
The grounds of contest comprised eleven sections, some of them averring the specific facts on which they rested. This pleading was unnecessarily prolix, and parts thereof could have been stricken on motion; yet it was the issue between the parties, on which the contest was tried, made up under the direction of the court, making the proponent the plaintiff and the contestants the defendants. A general replication thereto on the part of proponent would have put in issue the controverted grounds of objection to the probate. Code, § 5331. However, we will not reverse for the rulings of the trial court made thereon. If there was error in the manner of the making up of this issue, it was not calculated to affect the hearing and the judgment on the proper issues. Barker v. Bell, 49 Ala. 284; 40 Cyc. 1270.
As a witness for proponent, Judge Grubbs had testified that he lived at or near Clayton and the alleged testator lived at Mt. Andrew, and that he had known him for about 25 years. The paper shown witness was identified as that executed by the testator in the presence of witness and of a Mr. Cox, witness testifying that they each signed it in the presence of the other, as the last will and testament of T. M. Whittington, deceased. Proponent then asked witness, "What would you say as to his mental condition?" and the answer was:
"He was of sound mind. He was all right mentally; that is, he had testamentary capacity."
Due objection was made to the question; and exception reserved to the ruling of the court permitting the same, together with motion to exclude the answer, was overruled by the court. One of the issues being tried was the "testamentary capacity" of T. M. Whittington. Where there has been a long and intimate acquaintance with another, furnishing opportunity for the formation of correct judgment as to the mental condition of such person, a witness may give his opinion that the person "is of sound mind," since sanity is the normal condition of mankind. The general rule would not permit this witness, though an attesting witness to the purported will, to testify that the party executing the will had testamentary capacity at the time of its execution. The reason on which the rule is rested is that such issue of fact must be submitted to the judge or the jury trying the same, that they may draw the inference.
In Council v. Mayhew, 172 Ala. 295, 306, 55 So. 314, 317, Mr. Justice Somerville states the rule as follows:
"It is well settled that, on the issue as to testamentary capacity, a witness, whether expert or not, cannot testify that the testator was or was not capable of making a will, because, as it is said, this is the very issue to be submitted to the jury. Walker v. Walker, 34 Ala. 469, 473; Hall v. Perry, 87 Me. 569,33 A. 160, 47 Am. St. Rep. 352; 28 A. E. Ency. Law, 102. * * * The only exception to the rule stated is on the cross-examination of a witness who has testified as to the sanity or insanity of the testator, and then only to test the witness, and not to thus establish the fact. Dominick v. Randolph, 124 Ala. 557, 564, 27 So. 481." Torrey v. Burney,113 Ala. 496, 21 So. 348; 2 Jones on Ev. §§ 365, 367.
That this ruling of the trial court constituted reversible error we are without doubt. The evidence showed that, at the time of the preparation and execution of the paper in question Judge Grubbs was the probate judge
of the county in which the contest was being tried by a jury; that he carried the paper back to the county seat with him and placed it in the iron safe in the probate office with other probated wills. It is true that a part of the witness' answer as an attesting witness to the will, to the effect that at the time of the execution of the instrument the alleged testator was of sound mind, was competent under the recognized exception to the rule. McCurry v. Hooper, 12 Ala. 823, 828, 46 Am. Dec. 280; Shirley v. Ezell, 180 Ala. 352, 361, 60 So. 905; Walker v. Walker, 34 Ala. 469; Williams v. Spencer, 150 Mass. 346,23 N.E. 105, 5 L.R.A. 790, 15 Am. St. Rep. 206; 3 Wigmore on Ev. § 1936; 2 Jones on Ev. § 365 (367); 14 Ency. Ev. p. 388. The answer, however, did not stop there, but drew the conclusion of fact that only the jury or the judge trying the facts may draw.
It was competent for proponent to show that Olin Whittington told Judge Grubbs that T. M. Whittington was at his house, sick, and desired Grubbs to go there and write his will. It was not hearsay evidence for the witness to say, "Tom (T. M. Whittington) wanted to know first if I would be willing to come and, if so, he would send me word when he wanted me to go," for when this statement is considered in its context, with what witness was told by Olin Whittington, it amounted to no more than a part of the message delivered by Olin to witness and represented to have been a part of the message sent by T. M. Whittington. It was also competent for the witness to state his reply of readiness to comply with the request. This conversation between Judge Grubbs and Olin was further material, under the specification charging that undue influence was exercised by Olin over the testator, that resulted in the execution of the will; it tended to show a part taken by Olin in its preparation or procurement, and had a material bearing as affecting the burden of proof on the issue of undue influence. McElhaney v. Jones, 197 Ala. 303, 312, 313,72 So. 531; Bancroft v. Otis, 91 Ala. 279, 286, 8 So. 286, 24 Am. St. Rep. 904; Coghill v. Kennedy, 119 Ala. 641, 666,24 So. 459.
It was prejudicial error to permit Judge Grubbs, in response to the question, "Did you see any inclination or effort on the part of any one to induce Tom Whittington to sign the paper?" to answer, "I did not." This was one of the issues submitted to the jury. The question and answer improperly permitted the witness to state a conclusion drawn by him from the circumstances and facts attendant on the execution of the paper. Whether or not there was an effort on the part of any one that resulted in the execution of the paper, amounting to the exertion of undue influence as defined by the law of such cases, was an inference of fact to be drawn from the whole evidence. The witness should have been asked to state the facts, and not to draw a conclusion from the facts.
The witness W. N. Whittington, having qualified, was properly allowed to testify — basing his opinion on his knowledge and information and on conversations with T. M. Whittington, which he had detailed to the jury — that the testator was insane.
The assignment of error presenting for review the ruling of the court permitting the proponent to ask witness Dr. Britt the hypothetical question set out at length in the transcript is not well founded. In Burnwell Coal Co. v. Setzer, 191 Ala. 398,67 So. 604, and Pullman Co. v. Meyer, 195 Ala. 397,70 So. 763, the rule prevailing in this state for propounding hypothetical questions is stated. In effect, it is that such questions need not hypothesize every fact in evidence, but may incorporate only sufficient facts in evidence to fairly justify the formulation of an opinion on the material issue on which the testimony is offered. The frame and substance of the question is a matter largely committed to the sound discretion of the trial court. Such a question is held objectionable if it contains elements of fact not shown by the evidence. B. R. E. Co. v. Butler, 135 Ala. 388, 395, 33 So. 33; Morrissett v. Wood, 123 Ala. 385, 26 So. 307, 82 Am. St. Rep. 127; Parrish's Case, 139 Ala. 16, 36 So. 1012; Long Distance Co. v. Schmidt, 157 Ala. 391, 47 So. 731; B. R. L. P. Co. v. Saxon, 179 Ala. 136, 59 So. 584; Jones on Ev. §§ 370, 371; 17 Cyc. pp. 244, 250. Dr. Britt, as a witness, had theretofore answered a question propounded by contestants' counsel, assuming as true the matters of evidence on which an adverse judgment of the alleged testator's sanity might be based; and had answered that from such facts he would say that, "He was mentally insane, etc." Thereupon, on cross-examination, he was asked this question:
"Mr. Merrill [one of contestants' counsel] propounded to you awhile ago a hypothetical question in which he assumed the existence of a certain condition of a patient which he described to you; and he asked you if you thought such a patient of sound or unsound mind. You answered that you thought he was of unsound mind. Now, I will ask you a question, assuming the existence of all those conditions and hallucinations, as recited in the hypothetical question propounded to you by Mr. Merrill, and further assuming, etc. [reciting the facts and circumstances of the situation and condition of the alleged testator just before, and at the time of the execution of the paper, as shown by the evidence], do you think he was of sound or unsound mind?"
The witness answered, "I think his mind was sound." The court, exercising a sound discretion as to the frame and substance of this hypothetical question, committed no error in allowing it to be asked and answered.
The witness, Mr. Pruett, called by
the proponent, was asked on direct examination:
"Do you think that Olin Whittington is of such a domineering mind that he would do a dishonest thing to get a dying man to make a will to him?"
"Do you think he is of such a domineering mind that he would take advantage of a dying man, an old man on his deathbed, and by some undue influence, and some unlawful means, force him to execute a will in his favor?"
To each of these questions the witness' answer was, "No, sir." These questions and answers were in effect to have the witness to decide material issues presented by the pleadings and the evidence, and for this reason they were an invasion of the province of the jury. Councill v. Mayhew, 172 Ala. 295,304, 305, 55 So. 314. However, the contestants had opened the door for such illegal evidence, by the question, "Don't you think that Olin Whittington's mind is so domineering and to such an extent that he would try to shape another man's mind to such a course that it would be to his own interest?" with the answer, "Yes, sir." The proponent was not improperly permitted to reply with like evidence. Gibson v. Gaines, 198 Ala. 583,73 So. 929.
Contestants had introduced W. N. (Paul) Whittington as a witness, who had testified to the failing physical condition of his brother (the testator), and to the fact of the latter's being at witness' home about five weeks before the will was executed, at which time he appeared to be troubled about the fact of having "gone on a bond, and it looked like it was coming back to him." Witness was then asked, "What bond did he say it was?" Objection interposed to the question was sustained. Contestants' counsel stated the purpose of the testimony was to prove that the testator, Tom Whittington, came to witness about two months prior and told him that he wanted to sell out his land; that the witness asked the testator why he wanted to sell out his land, and the testator replied that Olin Whittington told him that he was on John Lasseter's bond as sheriff, and that they were going to try to get his land; that he had been getting rid of his lands. Upon objection by proponent, the court refused to allow contestants to make such proof, and due exception was reserved. It was then stated that counsel expected this witness to testify that no efforts had been made to get the testator's land; that at the time testator appeared to be worried; that Lasseter was sheriff 27 years ago; and that no effort had been made to fasten any liability on testator's lands.
The testimony was competent, in connection with other evidence, as tending to show interest or activity on the part of Olin Whittington in and toward the procurement and execution of the will. Coghill v. Kennedy, 119 Ala. 641, 659, 24 So. 459. The objection and exception not being insisted upon in argument of counsel, we have referred to the ruling thereon in its connection with the subsequent testimony which the court permitted proponent to introduce over contestants' objection — the petition, judgment, and guardian's bond signed by the testator and others in the matter of the estate of Jessie Bennett, a non compos mentis. This latter testimony, in the absence of the testimony sought to be elicited from Paul Whittington, was not in rebuttal of testimony introduced, and did not shed light upon the issue being tried. There was error in the admission of the bond and other proceedings in the Jessie Bennett case, over the objection and exception of contestants and in absence of Paul Whittington's proposed evidence as to the Lasseter bond as sheriff made years ago.
It was not error to refuse to instruct the jury that they may look to the facts stated; a party has no right to single out and give undue emphasis to parts of the evidence by this method.
There was no error in refusing contestants' charges 4, 6, 9, 11, and 20. Bancroft v. Otis, 91 Ala. 279, 280, 291, 8 So. 286, 24 Am. St. Rep. 904; Councill v. Mayhew, 172 Ala. 295,313, 55 So. 314.
The refusal of charge 5 may be justified, because of the use, in the charge, of the expression, "the jury will consider." Charge 16 was properly refused; however, this instruction found substantial expression in given charge 15. Charge 17 could have been given without reversible error; it was covered by given charges. Phillips v. Gaither, 191 Ala. 87, 67 So. 1001; Councill v. Mayhew, supra; Coghill v. Kennedy, supra; 2 Pom. Eq. Jur. 951. Charge C, refused to the defendant, should have been given. It is a copy of charge H, the giving of which was held not to be error in Coghill v. Kennedy, supra, 119 Ala. 646,666, 24 So. 459. Likewise, refused charge D is a copy of charge K, held proper in the Coghill Case.
Given charge for proponent (which we designate "O") exacts too high a degree of proof. The law requires that such proof should be to the reasonable satisfaction of the jury, and not as in this charge stated. Torrey v. Burney, 113 Ala. 496, 504,21 So. 348; Prince v. State, 100 Ala. 146, 14 So. 409, 46 Am. St. Rep. 28; Rowe v. Baber, 93 Ala. 422, 425;1 Vandeventer v. Ford, 60 Ala. 610, 615; Coghill v. Kennedy, supra, 119 Ala. 667,24 So. 459; Phillips v. Gaither, supra; Reaves v. Maybank, 193 Ala. 614, 69 So. 137. Charge A was substantially the same as charge 18, given in Knox v. Knox,95 Ala. 495, 501, 11 So. 125, 36 Am. St. Rep. 235.
The true rule of undue influence, as later stated in Councill v. Mayhew, and Phillips v. Gaither, condemns given charges B and N.
We are not unmindful of the fact that these charges, seeking to instruct as to undue influence, were approved as charge 3 in Knox v. Knox, 95 Ala. 495, 504, 11 So. 125, 36 Am. St. Rep. 235.
The decree of the probate court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.
1 8 So. 865.
On Rehearing.