Opinion
2 Div. 812.
October 16, 1923.
Appeal from Probate Court, Perry County; W. T. Harris, Judge.
J. F. Thompson, of Birmingham, and Jerome T. Fuller, of Centerville, for appellant.
A valid will can be made only by a person of sound mind. Shieffelin v. Shieffelin, 127 Ala. 37, 28 So. 687. Witnesses to a will must sign as such in the conscious presence of testator. Code 1907, § 6172; Snider v. Burks, 84 Ala. 53, 4 So. 225. A legatee occupying a confidential relationship with testator, who is active in the preparation of the will, has the burden of showing the will was not the result of undue influence. Bancroft v. Otis, 91 Ala. 279, 8 So. 286, 24 Am. St. Rep. 904; McQueen v. Wilson, 131 Ala. 606, 31 So. 94; O'Neill v. Johnson, 197 Ala. 502, 73 So. 21; Pool's Heirs v. Pool's Ex'rs, 33 Ala. 145.
Clifton C. Johnston, of Marion, for appellees.
As to a mind of legal soundness, see West v. Arrington, 200 Ala. 420, 76 So. 352. Activity of the beneficiary, in order to cast on him the burden to rebut undue influence, must be more than compliance with the free and voluntary instructions of testator. Jones v. Brooks, 184 Ala. 115, 63 So. 978; Mullen v. Johnson, 157 Ala. 262, 47 So. 584; Eastis v. Montgomery, 95 Ala. 486, 11 So. 204, 36 Am. St. Rep. 227; Lockridge v. Brown, 184 Ala. 106, 63 So. 524; Bancroft v. Otis, 91 Ala. 279, 8 So. 286, 24 Am. St. Rep. 904. It is not necessary that attesting witnesses to a will be present when the will is signed. Woodcock v. McDonald, 30 Ala. 411; Logwood v. Hussey, 60 Ala. 417; Hoffman v. Hoffman, 26 Ala. 535; 1 Jarman on Wills, 71.
The grounds upon which the contestant relies to defeat the probate of the will are: (1) That the will was not executed by the testator in accordance with legal requirements. (2) The testator was non compos mentis at the time of its execution. (3) Its execution was the result of undue influence exercised upon the mind of the testator by the proponent, John M. Jones, who is a beneficiary under the will.
The statute requires that the testator's signature shall be attested "by at least two witnesses, who must subscribe their names thereto in the presence of the testator." Code, § 6172. It is not necessary that their attestation be at the personal request of the testator (Lockridge v. Brown, 184 Ala. 106, 63 So. 524), but it is sufficient if done in his presence with his knowledge and with his consent, expressed or implied. In re Nelson, 141 N.Y. 152, 36 N.E. 3; Gilbert v. Knox, 52 N.Y. 125; In re Hull, 117 Iowa, 738, 89 N.W. 979; 40 Cyc. 1115, e.
It is well settled that the witnesses need not be present when the testator signs the will, nor need they sign their attestation in the presence of each other. Hoffman v. Hoffman, 26 Ala. 535, 546; Woodcock v. McDonald, 30 Ala. 411; Moore v. Spier, 80 Ala. 129; Woodruff v. Hundley, 127 Ala. 640, 29 So. 98, 85 Am. St. Rep. 145.
Of course, the due execution of the will may be proven by evidence other than the testimony of the attesting witnesses. Allen v. Scruggs, 190 Ala. 654, 666, 667, 67 So. 301.
Under these principles and requirements, the evidence was sufficient to support a finding that the will was legally executed.
On the issue of the testator's mental capacity, the evidence was in dispute, and the question was properly submitted to the jury. Attesting witnesses are allowed to testify to the testator's mental soundness at the time he executed the will without showing any other acquaintance with, or observation of, the testator. Walker v. Walker's Ex'rs, 34 Ala. 469; Burney v. Torrey, 100 Ala. 157, 14 So. 685, 46 Am. St. Rep. 33. So, any nonexpert witness may testify to the testator's sanity (but not to his insanity), without stating the facts on which he bases his opinion, if he shows sufficient acquaintance with the testator to have formed an enlightened opinion. Burney v. Torrey, 100 Ala. 157, 14 So. 685, 46 Am. St. Rep. 33; Wear v. Wear, 200 Ala. 345, 348, 76 So. 111.
This court has frequently stated the elements of testamentary capacity, and repetition would be superfluous. Councill v. Mayhew, 172 Ala. 296, 307, 55 So. 314, and cases cited; West v. Arrington, 200 Ala. 420, 76 So. 352.
On the issue of undue influence, the most that can be said for the contestant is that, considering the age of the testator, the mental and physical weakness accompanying an acute and mortal illness, the environments of place and persons, and the personnel of the beneficiaries (excluding a well-regarded and only sister), the jury might properly have found the issue in her favor.
The evidence did not show such activity by the proponent beneficiary as to create a presumption of undue influence, and to cast upon him the burden of showing that he exercised no such influence upon the mind of the testator in his preparation and execution of the will. Shirley v. Ezell, 180 Ala. 352, 60 So. 905; Eastis v. Montgomery, 95 Ala. 493, 11 So. 206, 36 Am. St. Rep. 227; Councill v. Mayhew, 172 Ala. 295, 311, 55 So. 314. As those cases show, activity which is no more than obedience to the expressed wish or request of the testator does not shift the burden of proof.
Had the evidence been of such character as to create a legal presumption of undue influence on the part of the proponent, it is clear that charge No. 5, given at his request, would have been erroneous as an invasion of the province of the jury. But, there being no such presumption, its elimination by this charge cannot be regarded as prejudicial.
Charge No. 2, though argumentative in part, states a correct proposition of law, and, while it might have been refused without error, it was not error to give it. Scribner v. Crane, 2 Paige (N.Y.) 147, 21 Am. Dec. 81, per Walworth, Ch.; Stevens v. Leonard, 154 Ind. 67, 56 N.E. 27, 30, 77 Am. St. Rep. 446; 1 Redf. Wills, 96.
The rulings of the trial court on the evidence, and in the giving and refusal of instructions, were in accord with the principles above stated, and the verdict of the jury was supported by substantial evidence on the several issues of fact submitted to them.
Finding no reversible error, the judgment of the probate court will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.