[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 676 The trial court had a discretionary power to prescribe the time within which the nonresident contestant should give security for cost, and an equally discretionary power to extend the time. Ex parte Jones, 83 Ala. 587, 3 So. 811. The contestant did not give the security within the time fixed, but did do so on the next day, and which was, in effect, accepted by the trial court by going on with the case. The case was still in fieri, as the order requiring the security for cost or that the case stand dismissed upon a default, was not a judgment of dismissal, and, in order for the case to have been dismissed, there should have been a judgment to that effect after said default.
Lide v. Park, 132 Ala. 222, 31 So. 360, and cases there cited.
The fifth ground of contest is based on undue influence, and charges the same to "Minnie Daggett, or by some person or persons other than the said Mrs. Daggett done in the interest of the said Mrs. Daggett or for the benefit of such person or persons who brought such influence to bear." It is well settled by the decisions of this court that upon a contest on this ground the quo modo need not be set out, yet it is necessary to name the person exerting the undue influence. Letohatchie Baptist Church v. Bullock, 133 Ala. 548, 32 So. 58; Cunninghame v. Herring, 195 Ala. 469, 70 So. 148; Johnson v. Johnson, 206 Ala. 523, 91 So. 260. The contest does not name the person or persons other than Mrs. Daggett, or that they were unknown, and was therefore subject to the appellant's demurrer — grounds 8 and 9.
The ground based on fraud was eliminated, and, as we view the evidence, it showed the physical execution of the will without dispute. So the issue on the next trial should be the mental incapacity of the testatrix at the time she signed the will, and the question of undue influence in the event the contest is amended so as to meet the requirements of law. It is sufficient to suggest that the proof fails to establish any direct influence on the part of this contestee in bringing about the execution of the will, and, if contestant *Page 677 relies on its having been done by or through some other person, the person or persons should be designated.
While we feel that the weight of the evidence shows that the testatrix did not become mentally incapacitated until August, several months after she made the will, yet there was enough evidence to take the question to the jury as to whether or not she was so incapacitated when the will was made.
As this case must be reversed for the error above pointed out, as well as others hereinafter suggested, and as the contest is deficient on the undue influence ground, we cannot discuss intelligently all evidence or charges bearing upon this feature of the case, and will only discuss those insisted upon which may operate as a guide upon the next trial of this cause.
The trial court erred in permitting Dr. Whitney to give his opinion whether or not the testatrix's mind was capable of the business of making a will. Neither a lay witness nor an expert can testify that the person inquired about was or was not incapable of making a will. Miller v. Whittington, 202 Ala. 406,80 So. 499; Wear v. Wear, 200 Ala. 345, 76 So. 111. The trial court evidently appreciated this error, and attempted subsequently to exclude this evidence. Whether the exclusion was so positive and affirmative as to cure the said error under the rule laid down in the case of Watson v. Adams, 187 Ala. 490,65 So. 528, Ann. Cas. 1916E, 565, we need not decide, as the case must be reversed for other reasons. It is sufficient to say that such evidence should not be permitted upon the next trial.
The other rulings on the evidence were either free from error, or, if there were errors, they could have been of no detriment to the contestee, except perhaps as to the interest and conduct of the Gibsons, which should not have prejudiced this appellant unless it was charged that they were acting for her or had unduly induced the execution of the will.
The remark of the court as to the witness Dempsey Myers in the presence of the jury, "I don't think he knows what he did tell on direct examination," was improper. The vice of that part of the oral charge as excepted to is sufficiently pointed out in discussing the demurrer to the contest.
The court erred in giving charge 13 at the request of the contestant. It is, in effect, the affirmative charge because of the omission of the word "if." It may be that it appeared in the original charge, but it does not appear in said charge as set out in the record.
Charges 1 and 2 given for the contestant are in the abstract correct. Charge 3 was bad for the reason pointed out in discussing the demurrer to the contest.
Charge 4 given for the contestant could have been well refused, as it is misleading. True, the jury could consider her mental condition immediately after executing the will in connection with her condition antecedent thereto, but the charge is so worded as to authorize the jury to act on her condition after the execution of the will when the finding should be based on what it was at the time of the execution of said will. Same as to given charge 16. There was no error in giving contestant's charge 11.
Charges 5, 8, and 15 can well be refused upon the next trial, as they are in a sense argumentative, and single out and give undue prominence to certain parts of the evidence. Charge 9 falls under the discussion of the demurrer to the contest.
There was no error in refusing contestee's charge 1. It was the general charge as to all of the issues, and, as above pointed out, the question of mental capacity was one for the jury.
The appellant was not injured by the refusal of her requested charge 2, as the charge of fraud was eliminated. Charge 3 charges no fraud or undue influence, and its refusal was harmless as to fraud, but, as it also contained undue influence, its refusal was not error, as there may have been enough evidence to make this a question for the jury under the issues as then existed, though the proof may not have shown the exercise of same by this appellant. As above noted, the declaration contest should name the person or persons who exerted the undue influence.
There was no error in refusing contestee's requested charge 4. While the undisputed evidence may have shown the physical execution of the will there was no legal execution of same if the testatrix was at the time mentally incapacitated. Bank of Kennedy v. Dorroh, 209 Ala. 511, 96 So. 611, and cases there cited.
There was no error in refusing the contestee's requested charge 11. While it may recite a truism, it was calculated to mislead the jury.
There was no error in refusing contestee's requested charge D. While the burden of proof was upon Boomer, the contestant, to prove all the other facts hypothesized, it was not up to him to show that testatrix did not sign the will.
Contestee's requested charge 23 should have been given. There was no error, however, in refusing charge 24, for while it asserts the same legal proposition as charge 23, the latter part of same invaded the province of the jury, and was calculated to mislead.
For the errors heretofore designated, the judgment of the probate court is reversed, and the cause is remanded.
Reversed and remanded.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur. *Page 678