Barksdale v. Davis , 114 Ala. 623 ( 1896 )

HEAD, J. —

The bill sets up several distinct grounds upon which it is proposed to contest the probate of the will of B. L. Barksdale. The sufficiency of the second ground (marked B) is not challenged by the demurrer, and, indeed, could not be. The demurrer goes to the whole bill, and if sustained, would have the effect of putting out of court (unless amended) a bill which confessedly shows a good and sufficient cause for setting aside the probate. The court could not do otherwise than overrule it. If it was desired to test the sufficiency of the other grounds set up, the demurrer should have been directed to them, severally. It results that the decretal order overruling the demurrer must be affirmed.

It was evidently the design and expectation of the parties to obtain, on this appeal, the opinion of this court upon the sufficiency, on demurrer, of the several grounds of contest as they are set up. in the bill. Indeed, no reference is made in the brief for appellee to the point that the demurrer, going to the whole bill, does not properly present the questions intended for decision, but those questions are argued upon their merits, as if properly presented. We will, therefore, state our opinion upon them.

1. Ground A, “that said will was not duly executed,” is sufficient. Upon the probate of a will in the probate court, whether contested or not, and on a contest in chancery, like that now before us, the prime step to be taken on the hearing, is for the proponent, in the one case, and the contestee, in the other, to prove the due execution of the will, in manner and form as required by the statute. The allegation in question is sufficiently specific to keep that requirement in force in the present proceeding.

2. Grounds C, D, E and F charge, in general terms, first, that the will was procured by undue influence by Amanda Barksdale, one of the devisees under the alleged will, and next, by fraud on the part of said Amanda. Neither the particular undue influence and fraud, nor how the same were exerted, are stated.

It is conceded that, according to the general rules of equity pleading, in other cases, these averments are not sufficiently specific; but it is contended that, on the contest of a will the entire laboring oar is upon him who asserts the validity of the will, and the contestant need do no more than to allege generally its invalidity. Our old cases of Johnson v. Glasscock, 2 Ala. 218, and Johnson v. Hainsworth, 6 Ala. 443, are relied upon to support the contention. These cases hold that, under the statutes then existing, the complainant need only allege the facts showing such relationship, on his part, to the deceased as entitles him to contest the supposed will, with a prayer for relief. At that time, there was no statute prescribing the allegations, written or otherwise, necessary to be made in order to inaugurate and try the validity of a will. The methods of procedure were under the control of the court. Pursuing the principle that the burden was upon him who sets up the validity of the instrument as the will of the alleged testator, it was held, as above stated, the contestant, was required to allege nothing more than his interest entitling him to contest.

Article III, Title 4, Part 2 of the present Code is devoted to the subject of contesting the validity of wills. The first section of this article (§ 1989) 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 of 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.” Then follow provisions for the trial and the'rendition of judgment in the probate court, following which, in the same article, is section 2000, under which this bill is. filed, providing that, “Any person interested in any will, who has not contested the same under the provisions of this article, may, at any time within five years after the admission of such will to probate in this State, contest the validity of the same by bill in chancery, in the district in which such bill was .probated, or in the district in which a material defendant resides.”

It is manifest that these provisions were introduced to change the policy of the law obtaining prior to their adoption, by requiring the contestant, by written procedure, to set-forth the grounds upon which he expects to contest the validity of the proposed will, and to confine the trial, after proof of the due execution of the will, to the issues which his allegations tender. The purpose of the change was that which underlies the law of pleading generally, that the parties may be certainly advised of the issues to be tried, and the court enabled to proceed intelligently in adjudicating their rights. In subservience of this general rule, it is a familiar principle of equity pleading that the complainant must distinctly allege the facts, upon which he relies for relief. Mere general statements or conclusions will not suffice. Thus, if fraud be relied upon, the general charge that a fraud was committed is, of course, not sufficient, but the particular facts constituting the fraud must be stated; otherwise the opposite party would be practically without information of what he was called upon to defend.

Upon a contest of a will, when fraud or undue influence is relied upon, the burden is upon the contestant to prove it. The opposite party is only required to prove the due execution of the will, according to the statute. It is as essential, therefore, that such party be informed, by distinct averments, of the facts constituting the fraud or undue influence so as to be prepared to meet them, as that such information be so given to any party, in any judicial proceeding; hence, there can be no well founded reason for holding that the legislature intended, when it required that the contest be in writing and set forth the grounds relied on, that only a general statement of such grounds, conveying to the opposite party, practically, no information of value to him in the preparation of his cause, should be sufficient. If such was the legislative intent, the change in the law scarcely served a useful purpose.

We are of opinion that the bill should set forth the facts constituting the fraud or undue influence charged.

In respect of the revocation of the will, in question, as alleged in the amendment to the bill, we think the allegation that the alleged testator “made and executed, in the presence of witnesses, as required by law, another will covering the same property, thereby revoking said alleged will,” sufficiently charges the execution of such other will. The statute expressly defines what constitutes the execution of a will, and a party setting up the execution of a will would be required to prove, under the allegation above quoted, that the requirements of the statute were complied with.

We think the allegation of the said amendment that the said second will “was itself destroyed by said Barks-dale with the intention of revoking it,” is the legal equivalent of an allegation that testator burned, tore, cancelled, or obliterated the will with such intent, as specified in section 1968 of the Code.

Affirmed.