Prevention of race amalgamation, safeguarding the racial integrity of white peoples and the racial integrity of negro peoples, is the fixed public policy of Alabama.
It is written into our Constitution in these words: "The legislature shall never pass any law to authorize or legalize any marriage between any white person and a negro, or descendant of a negro." Article IV, § 102, Constitution of 1901.
It finds legislative expression in our miscegenation statute, which reads: "If any white person and any negro, or the descendant any negro intermarry, or live in adultery or fornication with each other, each of them shall, on conviction, be imprisoned in the penitentiary for not less than two nor more than seven years." Title 14, § 360, Code of 1940.
The background of this public policy and the social status thereby conserved found expression in Story v. State, 178 Ala. 98,103, 59 So. 480, 482, in these words: "The social status, as respects the white race and the negro race, in this state is universally known. The general relation of the races, each toward the other, is kind and cordial to a most marked and gratifying degree; and the impulse the dominant race manifests toward the inferior race is that of a commendable guardianship and abundant generosity, inspired by motives not only of fundamental justice but of sentiment engendered by the earlier legal dependence and subjection of the slave to the master. While this honorable condition is obvious and prevails, yet the social relation and practices of the races have, in the interest of our civilization as well as in expression of the natural pride of the dominant Anglo-Saxon race and of its preservation from the degeneration social equality, between the races, would inevitably bring, imperatively necessitated and created immutable rules of social conduct and social restraint, that the just ends indicated might be attained and permanently maintained. Since the fundamental, initial suggestion of the social separation of the races is conceived in nature and is nurtured by a social pride and self-respect that only ignorance or unholy purpose can question or assail, it was and is the natural result that laws should be enacted promotive of the social purpose of the dominant race. Among these are: The inhibition against the authorization or legalization of marriage between any white person and a negro, or the descendant of a negro (Const. §§ 102, 182); the penal prohibition of marriage between these races."
We are now confronted with a case involving the validity of a will made by a white man bequeathing his entire estate to a negro woman with whom he was living in a state of adultery or fornication, followed by a deed of gift conveying to her his real estate, reserving its use and enjoyment during his life.
After his death the alleged will was offered for probate by the executor therein named. A contest was instituted by next of kin of decedent on the grounds of undue influence and mental incapacity. The cause was transferred to the circuit court for trial.
A bill in equity was also filed in the circuit court to cancel the deed upon like grounds. By agreement the cases were consolidated and the issues submitted to a jury who found both instruments invalid.
Among the questions here presented is whether there was evidence of undue influence presenting a jury question; and, if so, whether a new trial should have been granted because of the great weight of the evidence on that issue.
The evidence disclosed that decedent and beneficiary were living together in a state of adultery or fornication at the time the will was executed and for many years prior thereto; that the same illicit and criminal relation continued to the time of making the deed, some two years after making the will, and continued to the death of decedent, some five months after making the deed. This evidence was not controverted, and is not challenged on appeal.
Further evidence disclosed they lived together in the residence owned by decedent which, with some acreage connected therewith, was covered by both will and deed, and constituted the greater portion of decedent's estate. *Page 378
Other evidence was to the effect that decedent kept up a day-time connection with his family, taking his mid-day meal at the family residence in the same neighborhood; that he had, without cause, long conceived an intense dislike for his kindred, including a brother, a sister and an aged mother, all of whom pre-deceased him; that he was abusive and menacing in his manner, speaking to and of his people in contemptuous terms, with most opprobrious epithets, etc.
There was no direct evidence of activity of the beneficiary in the procurement of the will.
We quote, however, from the testimony of Leonard Wiggins, husband of a niece of decedent, one of the next of kin and heir at law. This witness said: "One time I had a conversation with Nazarine Parker in which the will and deed were mentioned. I was talking to her one Sunday, and she said she had every damn thing fixed. She said that Ben Watts fixed her a will and she was afraid that damn thing wouldn't hold, and she said she told him to go and fix her a deed, 'honey', they might break the will."
Nevada Nelson, testifying as an intimate neighbor having full knowledge of their illicit relation, said: "She would tell him what she wanted and he would give her what she asked for. She told me that he had willed her every damn thing he had, and that she was going to get it."
Dill Brooks testified she cooked for them and, among other things, said: "She just called him good names, she never did say anything ugly to him. I never heard him refuse her any request she made, nor ask for anything that he would refuse. He always shelled it out to her."
Proponent's evidence, in substance, disclosed a fixed purpose of the decedent to will his property to the negro woman, who, he said, had helped him and taken care of him all the time; disclosed he was apprehensive of a contest of the will, wanted a white man as executor to see that the devisee got the property; that the deed was executed on his insistence as an additional muniment of title in case the will was defeated. Nazarine was not present when either instrument was executed.
We are not here concerned with the question of the invalidity of transactions because in contravention of public policy, as, for example, a conveyance of property in consideration of entering into or continuance of illicit sexual relations between the parties. We are concerned with whether a will or gift of his estate by a white man to a negro woman with whom he is living in a state of adultery carries implications peculiar to such situation, which may, in connection with other facts, support a finding of undue influence.
There are special elements in the peculiar confidential relations existent between the parties.
The man, in such case, gets his consent to a way of life made a continuous felony by the laws of his state, a higher offense than in case of such relation between persons of the same race. He faces a loss of respect on the part of friends and neighbors of his own race, the better element of both races; is probably ostracized to a degree by the social laws of his community; sacrifices his own self-respect; humiliates his family, his blood relatives. All this in a special and peculiar measure in cases of this sort.
Keeping up such criminal relations at such a price may be considered by the jury in connection with all the evidence, and found to support a reasonable inference that the man has become so infatuated with his negro mistress as to render her the dominant party in matters of special interest to her. Her alleged declarations above quoted carry reasonable implication of her activity in procuring the will and deed, and also of her sense of power to get what she wanted; the role of a mistress, rather than that of acquiescence or servile submission to the dominant will of the man. The credibility of the witnesses was for the jury.
The inspiration and objective of his ugly, intimidating attitude toward his kindred, without any evidence of good reason therefor, was for the solution of the jury in the light of all the circumstances. There was some evidence of efforts on their part to change his way of living. Whether his fixed purpose to give the property to his paramour as insistently declaimed to the draftsman of both instruments was the expression of his own will, or a mere echo of her will, was a jury question. Proof of illicit relations is not alone sufficient to show undue influence in will cases. Evidence of such relations is admissible in connection with other evidence tending to show undue influence. Hobson v. Morgan, 215 Ala. 274,110 So. 406; Shipman v. Furniss, 69 Ala. 555, 44 Am.Rep. 528. *Page 379
What we have written suffices to indicate that illicit relations between the white man and the negro woman has special implications to be considered with all the other evidence in passing upon the issue of undue influence.
The evidence made a clear case for the jury on that issue; and there was no such state of evidence as would justify a reversal of the judgment denying a motion for new trial upon the ground that the verdict was not supported by the evidence. Undue influence may be shown by circumstantial evidence as other issues of fact.
Bequests by a father to his illegitimate child or children rest on a better basis, legally and morally. They are of his own blood. Dunlap v. Robinson, 28 Ala. 100; Allen v. Scruggs,190 Ala. 654, 67 So. 301; Johnson v. Johnson, 206 Ala. 523,91 So. 260.
There was some evidence of mental incapacity. This, under our practice, called for a submission of that issue to the jury. We need not consider the great weight of the evidence on that question. The verdict was general. There was no special finding on that issue. The evidence supported a finding of both instruments invalid on the ground of undue influence. Indeed, under the evidence, and the law of undue influence in will cases, and the law relating to gifts inter vivos, the jury could not well have found the will invalid and the deed valid and effective. Shipman v. Furniss, supra; Bancroft v. Otis,91 Ala. 279, 289, 8 So. 286, 24 Am.St.Rep. 904; Young v. Love,186 Ala. 292, 65 So. 337.
Charges A, C and E, given for contestants, state principles of law as quite literally announced in Shipman v. Furniss, supra. That case involved a deed of gift, not a will. These charges, by their terminology, when carefully read, disclose they were directed to the deed. If misleading, explanatory instructions were in order. Since illicit relations between the parties was not controverted, charge E was not erroneous in assuming such relation as a fact.
Charge No. __________, given for contestants, states a correct principle of law in cases of vendor and purchaser. Kirby v. Arnold, 191 Ala. 263, 68 So. 17, and cases there cited.
Under the unquestioned evidence the deed here involved was a deed of gift. Its recital of a consideration of one dollar, in some forms of action, stamps it as a voluntary conveyance. Technically, the charge was abstract. Nevertheless, the jury having before it a deed reciting: "That for and in consideration of One and 00/100 Dollars, to the undersigned grantor J. B. Watts in hand paid by Nazarine Parker the receipt whereof is acknowledged I the said J. B. Watts Single do grant, bargain, sell and convey unto the said Nazarine Parker the following described real estate, to-wit:", we cannot see how the giving of the charge, in view of the clear instructions of the trial court as to the issue presented as to the will and as to the deed, worked injury to appellant. If misleading in failing to confine the finding to the deed, an explanatory charge was in order.
A non-expert witness is incompetent to testify that, in his opinion, another person had a specific disease, unless the symptoms of the disease are so discernable to ordinary observation that one of ordinary intelligence and experience may form a sound judgment thereon. Mutual Life Ins. Co. v. Mankin, 223 Ala. 679, 138 So. 265; 32 C.J.S., Evidence, § 513, pp. 198, 199.
Where the witness, as here, testifies his knowledge of decedent's having syphilis was derived from the statement of decedent, not from his own knowledge, the above rule has no application.
I, therefore, dissent.
THOMAS and FOSTER, JJ., concur in the foregoing.