Estes v. Bridgforth , 114 Ala. 221 ( 1896 )

COLEMAN, J. —

The appellee, William Bridgforth, offered for probate an instrument purporting to be the last will and testament of James W. Bridgforth, which was contested by the appellants. The appeal is prosecuted from certain rulings of the court made during the trial, to which exceptions were reserved.

The contestants offered in evidence a written instrument executed by testator in which the “Estes children” were recognized to be “equal in all matters of division of his estate,” &c. In rebuttal, against the objection of the contestant, the proponent examined the judge presiding with reference to a conversation he had with testator in regard to the instrument, and its legal effect, and stated that at the request of the testator he then and there, endorsed thereon “that this matter was all settled in my presence,” and he signed the endorsement.

In the case of Dabney v. Mitchell, 66 Ala. 499, 503, this court used the following language : “Though, as is said by Parker, J., in Morss v. Morss, (11 Barb. 510),there is but little to be found in the books on the subject of the competency of a judge to testify in a matter pending before him, it is laid down as a general rule in the elementary books, that he is incompetent, and, so far as we have found adjudications, they support the rule.— I Whart. Ev., § 400 ; 1 Greenl. Ev., § 364 ; Morss v. Morss, 11 Barb. 510 ; Ross v. Buhler, 2 Mart. N. S. (La.) 312 ; McMillan v. Andrews, 10 Ohio St. 112.” It is impossible to estimate the weight and influence of the testimony of a witness with a jury, in a cause in which the witness presides as judge. The written instrument, signed by the testator, was before the jury. Its weight was necessarily more or less weakened by the testimony of the judge. He decided that his own evidence was relevant and competent, and then testified.

The minor children of petitioner were beneficiaries under the will and directly interested in having it probated. The minor children of Estes were heirs and entitled to distribution in case the will was not probated. The interest of the latter was directly antagonistic to that of the former. The same guardian ad litem should not have been appointed to represent these adverse interests .

The abstract does not contain the return of the sheriff showing the manner of the service upon the minors who were parties to the proceedings. The return of the summons ought to show its execution upon the minors, by service upon the parent or upon the guardian for such minor. Rules 23 and 26 apply to chancery practice.

We are of the opinion the evidence relative to the suit instituted by the parents of one of the appellants against the testator was properly admitted, when considered in connection with the declarations of the testator relative thereto, made recently before his death. Whether the inimical animus of the testator towards his grand-children, if such existed 'in consequence of this suit, naturally resulted from this cause, or was the effect of improper influences exciting an unjust prejudice, was a question for the jury. Though remote, the evidence had its bearing upon .the issue of undue influence. The evidence should have been limited in its application to the child of those who instituted the suit.

We cannot see the relevancy or legality of the evidence which tended to show, that, one of his children, Jack Bridgforth, took notes payable to himself, for the purchase money of property sold by him, which belonged to testator. It should have been excluded.

Undue influence may be shown without evidence of physical force. These questions, and the law applicable to undue influence, have been so often-promulgated, that we deem it unnecessary to do more than cite the authorities. — Bancroft v. Otis, 91 Ala. 279 ; Burney v. Torrey, 100 Ala. 157; Eastis v. Montgomery, 93 Ala. 293 ; Knox v. Knox, 95 Ala. 495.

For the errors pointed out, the judgment is reversed, and the cause remanded.