This case involves the contest of the will of one Irena Grigsby, deceased; the grounds of contest being mental incapacity to make a will, a failure to comply with the statute as to the execution of same, and undue influence.
We think the evidence made out a prima facie case as to the execution of the will as required by the statute, and there was no error in the admission of said will. It prematurely admitted, there was subsequent evidence, which, when connected with the antecedent evidence, established a prima facie case as to a compliance with the statute as to the execution of said will. Hall v. Hall, 38 Ala. 131, Barnewall v. Murrell, 108 Ala. 366,18 So. 831.
On September 13, 1926, the said intestate was declared mentally unsound by the verdict of a jury and a decree of the probate court. The will was executed by her on her deathbed January 20, 1927, and she died February 3, 1927. In other words, the will was made about four months after she was adjudged of unsound mind, and about two weeks before her death, and evidently when her health had been failing rather than improving, though there was evidence tending to show her mental capacity was good when she made the will, notwithstanding the adjudication of mental incapacity just a few months prior thereto, and which was sufficient to take the question of soundness of mind to the jury, and the trial court did not err in refusing the affirmative charge for the appellant upon this theory of the case.
Sanity being the normal condition of the human mind, the law presumes that every person of full age has sufficient mental capacity to make a will, and casts on the contestant, in the first instance, the burden of proving mental incapacity at the time the will was executed, but, when the contestant has established habitual, fixed, or permanent insanity, as distinguished from spasmodic or temporary insanity at a time prior to making the will, the burden of proof is then shifted to the proponent, and he is required to show that the will was executed during a lucid interval. O'Donnell v. Rodiger, 76 Ala. 222, 52 Am. Rep. 322, McBride v. Sullivan, 155 Ala. 166,45 So. 902. We think proof of the adjudication of insanity and that the intestate was under guardianship of the probate court when she executed the will was sufficient to cast upon the proponent the burden of establishing testamentary capacity when the will was made. 7 A.L.R. note, page 595. The adjudication, however, is conclusive of insanity only at the time of the inquisition, and not anterior or subsequent thereto.
The rule is that nonexpert witnesses cannot give an opinion as to the sanity or insanity of a person, unless he shows an intimate acquaintance with said person. As we understand, the witnesses Rochell and Griffis showed an intimate or familiar acquaintance with the intestate, at least, the trial *Page 509 court so held, and its ruling as to the qualification of the witnesses will not be reversed, unless it is clearly erroneous. Parrish v. State, 139 Ala. 17, 36 So. 1012. True, the witnesses did not see as much of the intestate after the inquest of lunacy as before, but this went to the probative force of their opinion. Russell v. State, 201 Ala. 572, 78 So. 916, Birchfield v. State (Ala. Sup.) 115 So. 297.1 Moreover, the rule as to the competency of witnesses called upon to testify to the sanity of a person is not so exacting as it is with reference to those called upon to show insanity. Braham v. State, 143 Ala. 28,38 So. 919, Ford v. State, 71 Ala. 385.
Charges 4 and 5, refused to appellant, were substantially covered by his given charges as well as the oral charge of the court. See given charges B, C, 26, and 28.
There was no error in permitting the witnesses, who knew the intestate well, to testify that she was a woman of strong or firm will. This was but a shorthand rendering of facts, and had a bearing on the question of undue influence. Moore v. Spier,80 Ala. 129.
The trial court erred in giving charge 6, at the request of the proponent. It falls short of the rule often declared by this court as to testamentary capacity. The rule was laid down in Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec. 150. As said in the case of Burney v. Torrey, 100 Ala. 157, 14 So. 685, 46 Am. St. Rep. 33:
"The law is clearly and fully stated in Taylor v. Kelly,31 Ala. 59, and though different expressions have been used, in later decisions, none were intended to alter or add to the requisites there required."
Again, it was said by this court, speaking through Somerville, J., citing the Taylor Case, supra, and many others:
"The elements of testamentary capacity have been so often declared by this court that it would seem to be almost impossible for any trial court to fall into error in stating the requirements." Councill v. Mayhew, 172 Ala. 307,55 So. 318.
Charge 6 does not set out the requisites as set forth in the decisions of this court.
Charge 18, given for the proponent, meets the requirements of the law, and there was no error in giving same.
There was no error in not excluding the testimony of the witness Barbee:
"I have seen her more than once since last September; when I saw her, she was about like she was all the time; sound mind, yes, sir; always knew what she was doing."
This was very different from permitting a witness to testify as to whether or not a person had the mental capacity to make a will and which was properly held to invade the province of the jury in the case of Walker v. Walker, 34 Ala. 469.
There was no error in refusing charge 8, requested by the defendant. If not otherwise faulty, it pretermits the fact that the jury must be reasonably satisfied, and requires that they must, in effect, be absolutely satisfied. Coghill v. Kennedy,119 Ala. 641, 24 So. 459.
There was no error in refusing the contestant's requested charge 12. This court has often held that a charge is argumentative which tells the jury to look to this or that fact.
Charge 14, requested by the contestant, was argumentative.
We do not think the trial court committed reversible error in the refusal of the contestant's other charges, as they were either bad, abstract, or covered by given charges. Nor do we think the trial court committed reversible error in ruling upon the evidence on points not herein discussed.
While Circuit Court Rule 18 provides "on trial, only one counsel on each side shall examine a witness," we do not think there was a violation of this rule, even if the matter was not within the discretion of the trial court as Goodrich and Rosenau were both attorneys in the case, but, when testifying, they were witnesses, and the one not then on the stand could examine the other.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.
1 Ante, p. 225. *Page 510