Fountain v. Brown , 38 Ala. 72 ( 1861 )

R. W. WALKER, J.

If -the testaton-is of sound- mind, ' he may dispose of his property as he pleases; and the will ■■ will not be avoided because the disposition is unnatural and ■ unequitable. — Mosser v. Mosser, 32 Ala. 566. But, while '- this is true, the law is well settled, that where a will is ■•contested, upon the ground of undue influence or incapacity, it is permissible to inquire whether the provisions of ' the will are just and reasonable, and consonant with tbe •• state of the testator’s family relations. If they are, that is - a circumstance conducing in some degree to establish the capacity of the testator, and the absence of fraud or undue influence in the execution of 'the will; while, on the other hand, the fact that the will makes an unnatural and inequitable distribution of the property, .is a circumstance tending in the ojoposite direction, and is proper to >be weighed by the jury in pronouncing on the issue devisaría ml non. — Stubbs v. Houston, 33 Ala. 563; Hughes v. Hughes, 31 Ala. 526 ; Allen v. Prater, 35 Ala. 174. .The pecuniary-condition of the testator’s.grand-children, who would have been distributees of his estate in case of intestacy, the value of the property devised to Matthias, and the inventory and appraisement showing the extent and value of ■'.the testator’s estate, all reflected light upon the character of the will, and were properly allowed to go in evidence i& the jury.

[2-4.] It was competent for the contestants to- show that . the" testator was ‘ diseased’ before the execution of- the will; and our previous decisions settle the law to be, that a- witness who is not an experti.may testify to the fact that a person was ‘diseased.’ — Blackman v. Johnson, 35 Ala. 252 ; Barker v. Coleman, 35 Ala. 221. It is clear, therefore, that a part,iat least, of the.question to the witness Bohanaon, was legal; and the rule is, that a general objection to an entire question, a part of wbicb calls for legal evidence, .-..may be overruled entirely. — Sayre v. Durwood, 35 Ala. 247.

[5.] The fact, that before the will was made, the testa* .-tor had conveyed to third persons some of the property disposed of.in the will, was competent evidence for the contestants, as It tended to show the failure of the testator’s ; memory,/and thus bore on the question of his intellectual condition and capacity. — Stubbs v. Houston, 33 Ala. 559; Walker v. Walker, 34 Ala. 473.

[6.] We must hold, however, under the influence of the previous decisions of this court, that the court erred, in re- - fusing to permit the witness McClammey to state his opin- . ion, in connection with the facts testified to by him, as to the sanity-of the testator. — Stubbs v. Houston, 33 Ala. 559, 564; Carmichael v. Carmichael, 36 Ala. 616, and authorities cited.

As the other questions presented by the record may not; arise in their present form on another trial, we will not eonsider them.

For the error pointed out, the decree must be reversed,, and the cause remanded.