FOUNTAIN vs. BROWN

FOUNTAIN vs. BROWN. [CONTESTED PROBATE OF WILL.] 1. Eelevaney of evidence to simo incapacity of testator, fraud, m- vniuewtv jluence. — Where the prohate of a will is contested, on the grounds oí’ fraud, undue influence; and mental incaiiaeity on the part of tho testator, it is permissible tto inquire whether the provisions of tho will are just and reasonable, and consonant with the state of tho testator’s family relations; and proof of the value of his estate, and of the pecuniary circumstances of those relatives who, in ease of intestacy, would b® his hcirs-at-law and distributees, is admissible evidence as bearing on this question. 2, Same. — In such case, it is competent for the contestants to prove that the testator was '■diseased! before the execution of the supposed will; . 3. To what witness may testify. — A witness may, although not an expert, testify to the fact that a pierson was ‘ diseased! 4, .General objection to evidence. — A general objection to an entire ques- - tion, a part of which calls for legal evidence, may bo overruled er>.. tAely- . r*. Relevancy of evidence io show ineapaeity of testator. — The fact that 'fclie,testator had conveyed to third persons, before the execution of the supposed will, some of the property disposed of by it, is competent evidence for the contestants, as tending to show the failure of his, memory. 6, Opinion of witness on question of sanity. — A witness who was long and intimately acquainted with the testator, may state liis opinion on the question of sanity or insanity, in connection with the facts on which-it is based. Appeal from the Probate Court of Monroe. In the matter of the probate of a paper, which was.,propounded for probate as the last will and testament of Elias Brown, deceased, by Hugh T. Fountain, the executor therein named; and the probate of which was contested by several of the testator’s children and grand-children, on the grounds of fraud, undue influence, and mental incapacity on the part of the testator. On the trial before the jury, as appears from-.the bill of exceptions, the court, allowed the contestants, against the objections of the proponent, to ask' a witness the following questions : “What is the pecuniary condition of the children of Mahala Nettles ?” “ What is the pecuniary condition of the children of Jane Dunn,?” Mahala Nettles and Jane Dunn were, daughters of said testator, and were both dead at the date of the paper propounded for probate.. The jii'oponent re- ■ served exceptions to the allowance of these questions. The court also allowed the contestants, “for the purpose of showing the unnatural character of said will,” to read in evidence the appraisement and inventory of the testator’s.esiate, and to show the value of the land devised by the will to one Moses Matthias; and, “for the purpose of showing that said testator had devised by said will land which, did not belong to him at the time,” to read in evidence a. deed, by which a tract of land was conveyed by one McCall to said testator, and on which was endorsed a., transfer and assignment by the latter to one Andress, — the assignment being dated about two years before the date ol the will; to all which rulings of the court exceptions, "■were reserved by the proponent. The contestants askdd •-•one Bohannon, a witness, the following question: “Was - said testator diseased before or after the execution of said >kwill?” '--The court allowed- the question to be asked and .-answered, against the proponent’s objections, and he ex-- . -cepted. The proponent introduced oneMcOlammey as a witness, -“who testified, in answer to questions asked him, that lie ■ had known said testator for thirty or forty years, was well ■-.and intimately acquainted with him, had travelled thousands of miles with him, had seen him transact business, bad heard him preach-.for many years, had frequently ; stopped at his house all night, and had conversed with him • in relation to his family affairs, and in*- relation to making his will; that'-the last time.be conversed with him on that • subject was in 18-58, and*-the last time he had heard him ,.preach was in-1860.” Om-'these facts/the proponent proposed to ask said witness, “whether or-'not, in his opinion, ■said testator, was a man of-sound mind on the 21st March, -1857,” the date of said will. The court would not allow ’•■-.the question to be asked, and the proponent excepted. All the rulings of the court to which exceptions were {--reserved by •< he proponent, are now assigned as error. S. J. Cumming, for appellant. J. W. Posey, contra. [MAJORITY — R. W. WALKER, J.] 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. 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. 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. 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.