Moore v. Heineke

119 Ala. 627

• Court: Supreme Court of Alabama
• Decided: July 1, 1898
• Status: Published

Opinion

BRICKELL, C. J.

This was an application to the court of probate by the appellant for the probate of a paper writing purporting to be the last will and testament of Julia E. Gleason, deceased. The application was contested by the appellee, a sister and of the next of kin to said Julia, by the filing of five separate specifications of causes of contest. The first denied the execution of the paper writing by the deceased, and the second affirmed she was of unsound mind at the time of execution. The third alleged in general terms that the execution of the will was induced by John F. Gleason, “by and through fraud and undue influence.” To the fourth a demurrer was sustained, and it does not require further notice. The fifth alleged unsoundness of mind, and that the execution of the instrument “ivas obtained by one John F. Gleason, representing himself to testatrix as her lawful husband, when in fact he was not her lawful husband, and by and through the fraud and undue influence exercised by John F. Gleason upon said Julia Eva Gleason.”

The first ground of demurrer to the third ground of contest — •“because it presents no issue of fact or law which avoids said will” — is not a sufficient specification of any objection, as required by the statute, and is therefore too general to be considered. — Code, 1886, §2690. The cause of demurrer must be specifically assigned, in order that defects in the pleading may be distinctly and particularly pointed out, so that the party pleading may certainly be apprised of them from what appears in the demurrer itself, and not from the argument thereof, and, if he can, cure them by amendment. — Sledge v, Swift, 53 Ala. 114. The objection that this ground of contest states two distinct and separate objections to the validity of the will, namely, fraud and undue influence, is not well taken. Under our system of pleading, the fact that a plea is double is not an available defect. — Bolling v. McKenzie, 89 Ala. 476; Corpening v. Worthington, 99 Ala. 544. Even were it otherwise, the statute contemplates the allegation or specification of any number of objections to the validity of the will, and the fact that objections in a particular case, are separated and numbered, as if they -were separate pleas, and two or more such objections were in one numbered specification, will not render the specification demurrable.

The specification numbered 5 sets up three distinct objections to the validity of the will, and the demurrer to this ground is directed to all these objections jointly. In the case of Barksdale v. Davis, 114 Ala. 623, we held that in the statement of the grounds of contest, when fraud or undue influence is set up, the facts constituting the fraud or undue influence must be averred with the same particularity required by the general rules of pleading when such issues are sought to be raised. The averment in this ground of contest that the execution of the will was procured by fraud and undue influence was, therefore, insufficient. And the averment that the wiU was procured by John F. Gleason, the sole beneficiary, “representing himself to testatrix as her lawful husband when in fact he was not her lawful husband,” ivas insufficient because it did not show that the testatrix ivas deceived by the representation. But the averment that, at the time of the execution of the will, testatrix ivas of unsound mind was clearly sufficient; and inasmuch as the demurrer was directed to all the specifications of contest jointly, one of which ivas sufficient, the overruling of the demurrer ivas not error.

The statute (Code 1886 §1994, Code 1896 §4292) provides that for the trial of the contest of the validity of a will, “depositions of witnesses may be taken in the'like cases, for the same causes, and in the same manner, as •depositions are taken in civil causes in the circuit court.” The taking of such depositions is therefore governed by the provisions of sections 2802 and 2803 of the Code of 1886 (Code, 1896, §§1834, 1835), and not by rule 53 of Chancery practice. Section 2802 applies only to open commissions for the examination of witnesses without interrogatories, while section 2803 applies to the taki ng of depositions by written interrogatories. The latter section makes no provision for the giving of notice of the time and place of taking the deposition, and does not require the probate judge to instruct the commissioner to give such notice. The failure to give the notice demanded by the jiroponent by indorsement on the cross interrogatories was therefore no ground for suppressing the depositions. — Wisdom v. Reeves, 110 Ala. 431.

The principal objection to the validity of the will relied on by the contestant was that John F. Gleason, the sole beneficiary, at the time lie married the testatrix, had a lawful wife living, and that the suppression of this fact, and the consequent deception practiced on the testatrix, were a fraud which induced the execution of the will. The evidence tending to show the former marriage consisted entirely of testimony as to co-habitation and reputation of marriage between said Gleason and one Nellie Jones. It tended to show that they lived together as man and wife for ten years in Cincinnati, Ohio, and then moved to Covington, Kentucky, where they continued to live together for two years, until June, 1889, when Gleason disappeared; that four children were born to them while they so lived together, who were recognized as his own by Gleason; that they were uniformly and generally reputed to be man and wife among their friends and relatives; and that Gleason had frequently spoken of and acknowledged the woman as his wife while living with her, not only to Mends, but also to his mother and sisters. But there was no pn«itivt evidence of an actual ceremonial marriage, or of any consent or agreement between the parties to be man and wife, such actual marriage or consent being denied by Gleason, whose credibility as a witness there was evidence tending to impeach. The proponent, in rebuttal of this evidence, proved an actual marriage between testatrix and Gleason, solemnized according to the forms of law in Topeka, Kan., on July 15, 1889, which marriage was not controverted.

It is conceded by counsel for appellant that on an. issue of marriage vel non, evidence of co-habitation and general, uniform reputation, and of the declarations and conduct of the parties while living together, holding themselves out to the world as man and wife, is admissible, and that these facts raise a prima facie presumption of marriage, which will prevail until overcome by evidence or neutralized by counter presumptions. But it is insisted that -when such evidence is met by proof of a permanent separation, without apparent cause, and a subsequent marriage in fact between one of the parties and a third person soon after the separation, not only is the presemption rebutted, but the evidential value of the testimony as to the former cohabitation and declarations is entirely destroyed, and such testimony cannot 1 e considered by the jury for the purpose of establishing the former marriage. The weight of authority and the decisions of this court support the proposition that the presumption of an actual marriage from the fact of con-tinned cohabitation, etc., is rebutted by the fact of a subsequent permanent separation, Avithout apparent cause, and the actual marriage soon after of one of the parties. Weatherford v. Weatherford, 20 Ala. 548; Bish. Mar. & Div. §446. But Ave cannot sustain the proposition that, because the presumption arising from such facts is rebutted, the evidence of these facts is no longer entitled to any consideration, and must be Avithdrawm from the jury. NotAvithstanding such evidence has been deprived of any aid from the presumption, it is still evidence tending to shoAV, and from which the jury may infer, if it be sufficiently strong and satisfactory, either an actual ceremonial marriage or an actual consent or agreement to be man and wife, Avhich, Avhen followed by cohabitation may constitute a Adalid common laAV marriage- While cohabitation and repute do not make marriage, and there can be no marriage Avithout the mutual consent of the parties, yet cohabitation as man and Avife, the rearing of children, the recognition of the relation by the parties themselves and by their friends and relatives, and their declarations and conduct, holding themselves out to the Avorld as husband and wife, are manifestations of the parties having consented to contract that relation inter se, and, therefore, circumstances from Avhich the trior of the fact may infer that a marriage had in fact been entered into. This court has many times held that in criminal prosecutions for bigamy — an offense of which an actual second marriage is an.essential ingredient, and where every legal presumption of the innocence of the accused in contracting the second marriage is indulged — the first marriage may be proved by evidence of the former cohabitation of the accused with a third person, and of his declarations. — Langtry v. State, 30 Ala. 537; Williams v. State, 54 Ala. 133; Buchanan v. State, 55 Ala. 154.

The declarations and conduct of the cohabiting parties, while living together, are admissible as of the res gestee. But such declarations made by one of the parties after they have permanently separated and ceased to live together, in a suit in which such party is in no way interested, are mere hearsay, and are not admissible under any of the exceptions to the rule excluding such testimony. Of consequence, the testimony of Spreadbury and Bolan as to the declarations of the alleged first wife, made after Gleason had ceased to live with her, and not in Iris presence, should have been excluded. That part of the testimony of the former in which he states that, at a time when the parties were living together, Gleason asked him “if everything was paid up (on his policy of insurance) so that the beneficiary, Mrs. Gleason, would have no trouble in getting her insurance in the event any accident should happen/5 was receivable as an admission on the part of Gleason that the beneficiary was his wife, the witness having previously testified that he had issued to Gleason a policy of insurance on his life in favor of his wife, Nellie, as beneficiary.

While undue influence is a species of fraud, yet there are many kinds of fraud which do not constitute undue influence. The latter must be tantamount to coercion, and, in a measure at least, destroy the free agency of the testator, and constrain him to do that which, if there had been no constraint, he would not have done. It involves the substitution of the will of another for that of the testator. Deception and misrepresentation deliberately practiced on the testator- for the purpose of procuring the execution of the Avill, if in fact he is deceived thereby, is such a fraud as will vitiate the will thus procured; but it is not undue influence if the mind of the testator is left free to make such disposition of his property as he chooses. Such is the fraud which is here alleged. Although the evidence tends to show that at the time Gleason married testatrix he had a wife living, there is a total lack of any evidence tending to show that at the time she executed the will she was deceived as to the past life of her husband, and hence that the execution of the will was induced by any deception or fraud. However strong the probability that a woman would not marry a man with knowledge of such facts as are here shown, or, having married him in ignorance of such facts, would not, after becoming informed of them, give all her property to him by will, the law Avill not presume that she had no such knowledge from the mere fact that she did marry him, and did devise all her property to him. There is also an entire want of evidence to show that any undue influence was exercised upon the mind of the testatrix. For these reasons charges numbered 1, 7, S and 81, requested by the proponent should have been given.

Many of the charges requested by the proponent assert the proposition that where two or more objections to the validity of the will are alleged in one subdivision of the grounds of contest, and the proponent joins issue thereon, the contestant cannot have a verdict, unless he proves all the objections stated in such subdivision. We think such charges were properly refused. Section 1989 of the Code, as we have said, contemplates the allegation of any number of objections to the validity of the will, proof of any one of which is sufficient to justify the rejection of the will. The fact that these various objections are subdivided and numbered, and that one subdivision contains two or more objections, does not render it necessary to prove all of those contained in such subdivision. Many of the charges also exact too high a degree of proof, in that they require the evidence upon which a verdict is asked to satisfy the minds of the jury. Evidence is sufficient to justify a verdict if it reasonably satisfies and convinces the mind. — Torrcy v. Burney, 113 Ala. 496; Prince v. State, 100 Ala. 146.

There was evidence tending to show that the testatrix was of unsound mind a short time prior to and after the execution of the will, and that she died from acute mania about three weeks thereafter, although it was not shown that the unsoundness of mind was of a permanent' character, such as, when once shown, the law presumes to continue. HoAvever little weight this evidence was en-, titled to, and .however cogent the evidence in rebuttal, it Avas sufficient to justify the submission of the issue to the jury, whose prvmnce alone it Avas to determine its weight. Charges 26 and 27 were, therefore, properly refused.

Although the statutes of Kentucky declare every marriage Aroict unless solemnized in the manner provided therein, and a common-laAV marriage cannot be contracted in that State, yet evidence was properly admitted to show that the cohabitation, Avhich began and continued for ten years in Ohio, Avhere the common-law is presumed to prevail and where a common-law marriage is valid, in the absence of a statute éxpressly prohibiting such marriages, Avas continued for two years longer in Kentucky. Such evidence was not admissible to prove ‘ that the marriage relation grew out of the co habitation in Kentucky, or that the cohabitation became lawful in Kentucky by the parties agreeing in that State to be man and wife; but it was clearly admissible to strengthen the presumption that the cohabitation in Ohio was lawful. It is always competent, on an issue of marriage vel non, to show the duration of the cohabitation. Charges 33 and 34 were, for these reasons, properly refused. Charge 14 requested by the proponent, asserts a correct legal proposition. As has already been stated, the presumption of marriage arising from cohabitation, etc., is rebutted by the subsequent permanent separation of the parties and the marriage of one of them soon after the separation. The word “after” before the words “the marriage,” in the charge, is probably a misprint, and should have been “and.” Charge 16 gives undue emphasis to the fact stated therein in asserting that it is a “strong circumstance” tending to show testamentary capacity. The weight to be given to this fact was a proper subject of argument before the jury, but should not be emphasized in a charge.

The charge given at the request of the contestant, which asserts that Gleason and the alleged first wife were in fact husband and wife if they “agreed to live together as husband and wife, and agreed to be husband and wife in the State of Ohio,” ignores cohabitation following the agreement as an element of a valid marriage by mere agreement without solemnization. — Ashley v. State, 109 Ala. 48; Mickle v. State, (Ala.) 21 So. 67; Farley v. Farley, 94 Ala. 503. But, as the fact of cohabitation was not disputed — was, in fact, admitted — the proponent was not injured by the charge. Charge 4, given at the request of contestant, should have been refused. The fact that, at the time Gleason married testatrix, he had a Avife living would not vitiate the will, unless the testatrix Avas deceived and executed the avííÍ in ignorance of the fact, which the evidence fails to sIioav. Charge 6 misplaces the burden of proof as to undue influence; and charge 7 exacts too high a degree of proof. For the errors pointed out, the decree of the probate court is reversed, and the cause remanded.

Reversed and remanded.