West v. Arrington , 200 Ala. 420 ( 1917 )

I will briefly state my opinion in reference to charge 2, given at the instance of contestees. Of course, I take no issue with what was said of a similar charge in Taylor v. Kelly,31 Ala. 59, 72, 68 Am. Dec. 150. But I do not find in that case any necessity for a cast iron formula in respect to the matter under consideration. It will be noted that the court, approving the charge given in that case, simply reproduced the language of counsel who framed the charge. The court cites Harrison v. Rowan, 3 Wn. C. C. 580, Fed. Cas. No. 6,141, and the charge then before the court followed very closely the language of Judge Bushrod Washington in Harrison v. Rowan, except that there was an inversion of the rhetorical members of the proposition laid down in the last-named case, where the language of the judge was as follows:

"As to the testator's capacity. He must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will, with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them."

In the edition of Jarman before us (Bigelow's Sixth American [1892]) I have been unable to locate the relevant text to which the court must have referred in Taylor v. Kelly. As for Coleman v. Robertson, 17 Ala. 84, certainly there is nothing in it looking to the establishment of the language or the form of the charge in Taylor v. Kelly as a formula from which no variations are to be permitted.

In Kramer v. Weinert, 81 Ala. 414, 1 So. 26, the court, again, as I read its thought in its language, putting its most general proposition, a kind of summary, after a statement of its constituent elements, said:

"The rule, as established in this state, and sustained by the weight of authority, as the test of testamentary capacity in cases like the present, is, if the testatrix had mind and memory sufficient to recall and remember the property she was about to bequeath, and the objects of her bounty, and the disposition which she wished to make — to know and understand the nature and consequences of the business to be performed, and to discern the simple and obvious relation of its elements to each other — she had, in contemplation of law, a sound mind."

The court also said:

"If the testatrix had mind and memory sufficiently sound to know and understand the business in which she was engaged, she possessed testamentary capacity. This, says Justice Washington, is the most simple and intelligent form of the inquiry."

Justice Washington had charged the jury in Stevens v. Vancleve, 4 Wn. C. C. 262, Fed. Cas. No. 13,412, in this language:

"The question is not so much what was the degree of memory possessed by the testator as this, Had he a disposing memory? Was he capable of recollecting the property he was about to bequeath, the manner of distributing it, and the object of his bounty? To sum up the whole in the most simple and intelligent form, Were his mind and memory sufficiently sound to enable him to know, and to understand, the business in which he was engaged, at the time when he executed his will?"

I think it may be said that there is a sort of rough formula, that is, a certain similarity in the form of stating testamentary capacity, that the courts generally have adopted; but this rough formula is in the language of charge 2 substantially, and omits the summary to which we have made reference. This will be seen in the note on page 63 of the Bigelow's Edition of Jarman on Wills, where cases from many jurisdictions are collected, with short statements of the effect of the decisions. Stating some of our cases along with the rest, the learned American editor discloses his understanding of their effect in the following language:

"Kramer v. Weinert, 81 Ala. 414 [1 So. 26] (enough if the testator had mind and memory sufficient to call up and remember the property he was about to dispose of, the objects of his bounty, and the dispositions he wished to make, citing Taylor v. Kelly, 31 Ala. 59 [68 Am. Dec. 150]; Lowder v. Lowder, 58 Ind. 538); O'Donnell v. Rodiger, 76 Ala. 222 [52 Am. Rep. 322] (same formula)."

Knox v. Knox, 95 Ala. 495, 11 So. 125, 36 Am. St. Rep. 235, is an authority in favor of the trial court's ruling on charge 2. So far as concerns the question here at issue the proposition of charge 10, given at the instance of appellee in that case, was that if the testatrix had mind and memory enough to recollect the property she wished to bequeath, the persons to whom she wished to bequeath it, and the manner in which she wished to dispose of it — the language copied into charge 2 in this case — then she had a right to make such disposition of her property. The charge there considered failed to summarize that testatrix must have had mind and memory enough to know and understand the business in which she was engaged.

To repeat, in substance, my conclusion in respect to the propriety of charge 2, the charge correctly stated the elements of testamentary capacity. It was not necessary that it should have stated the collective effect of those elements, as was done in Taylor v. Kelly, for, if testator recollected the property he wished to bequeath, the persons to whom he wished to bequeath it, and the manner in which he wished to dispose of it, then, in necessary consequence, he knew and understood the business in which he was engaged — the making of his will. I find nothing in any of our cases, or elsewhere, for that matter, to the contrary.

SOMERVILLE, GARDNER, and THOMAS, JJ., concur.