Watson v. Anderson. WATSON v. ANDERSON. 1. Though the opinions of medical men, are entitled to more weight on the trial of a cause involving the question of sanity, than that of those who are not physicians, yet it is the duty of the jury to weigh the whole evidence, and if satisfied that the testator was sane, should so find, although the medical men examined, were of a different opinion. Writ of Error to the Orphans' Court of St. Clair. THIS was a proceeding before his honor John I. Thomason, in the orphans' court of St. Clair, to try the validity of the will of William Watson, deceased. The cause was submitted to a jury, on the issues made up between the contestants, and the executor, who propounded the will for probate. The first plea, or objection interposed by the contestants, was, that the testator was not of sound mind. 2. That the will was procured by fraud, and undue influence. 3. That the testator was of unsound mind, resulting from age, bodily infirmity, and the intemperate use of ardent spirits. The 4th plea amounts to the same in effect as the second. On the trial, a bill of exceptions was sealed by the judge, which presents the following facts: On the trial, it was agreed that all the witnesses, as well those who were not physicians, as those who were, should give their opinion as to the sanity, or insanity of the testator, with the facts on which their opinions were founded. The executor requested the court to charge the jury, that if upon a full view of all the facts of the case, and all the evidence, and the opinion of the witnesses, those not physicians, as well as those who are, as to the sanity of the testator, they believe the said testator was of sound, and disposing mind, then they must find the will valid, although four, out of five of the physicians, gave it as their opinion that the deceased was not of sound mind. This charge the court gave, and the contestants excepted. The court had before charged, that if the will was obtained by undue influence, by Ander Watson v. Anderson. son taking advantage of the condition of the testator, resulting from age, infirmity, and intemperance, then the will was void. The verdict was in favor of the validity of the will, and judgment being rendered, a writ of error is brought to this court. RICE, for plaintiffs in error. 1. Where several issues are formed on the contest of a will, and the issues are different, and upon those issues being submitted to a jury, "there was conflicting proof as to all the issues joined,"—it is erroneous for the court to give a charge to find the will valid, if they found only one of those issues against the contestants. 2. The error of such a charge is not cured, by the fact that "in the previous part of the charges of the court, but not in connection with the charge excepted to, the court had charged the jury in a less objectionable form, and in relation to another issue." The last charge given may be taken by the jury, and ought to be taken as a recantation of "the previous part of the charges." 3. When there are several different and material issues submitted to a jury, in the case of a contested will, and the last portion of the charge makes the whole case to turn upon one of those issues only, (to wit, sanity or insanity,) this court will reverse the judgment at the instance of the contestants, without indulging in conjectures as to the effect of the charge, especially when the attempt to cure the error of such a charge, discloses that another charge was given which is clearly erroneous, in this, that it confined the investigations of the jury as to undue influence, to Anderson alone, whereas under the issues, the undue influence of any other person would have been as fatal to the alledged will, as the undue influence of Anderson. WOODWARD, Coutra. The whole charge given by the court must be taken together. The court had given the charge that testator must have been of sound mind and free from undue influence, and it cannot be presumed that the jury would reject this instruction and adopt the one excepted to. Watson v. Anderson. The charge, as asked by Anderson, and given by the court, was correct in itself, because one is not of sound and disposing mind in legal contemplation, if his mind is operated upon by undue influence. But if these positions are untenable, then it devolved upon the party excepting, to ask the court to explain the apparent conflict in the charges, and having failed to do so, there is no ground for a reversal. 9 Ala. 452. DARGAN, J.-The instructions given by the court, were entirely correct, and appropriate to the evidence, and the issues submitted to the jury. The issues, in substance, are but two. The first, as to the sanity of the testator; second, whether the will was obtained by undue influence. The court, charged, in substance, that if it was obtained by undue influence, exercised over a weak, and infirm old man, it was void. Secondly, that if the jury believed from the whole evidence, the testator was of sound mind, they should find in favor of the validity of the will, notwithstanding four, out of five of the physicians, gave it as their opinion, the testator was not of sound mind. It is true, that the opinion of medical men, on the trial of a question of sanity, is entitled to more weight, than the opinion of a witness, who is not a physician. Yet it is the duty of a jury to weigh the whole evidence, and if they are satisfied, that the testator was of a sound and disposing mind, they should so find, although the physicians who may have been examined, gave it as their opinion, that the testator was insane. Let the judgment be affirmed. Adams, and wife, v. Barron, adm'r. ADAMS, AND WIFE, V. BARRON, ADM'R. 1. When dower is assigned, out of adjoining lands, lying in contiguous counties, the party at whose instance it is done, cannot afterwards complain that the court had no jurisdiction to make an allotment out of the county. 2. A return of the sheriff, that he has assigned dower to the widow, 66 as shown by the annexed return," is sufficient, as it will be presumed, that the return annexed, is the report of the commissioners. 3. A designation of the tracts allotted as dower, by their designation at the land office, is sufficient, without describing them by metes and bounds. 4. An assignment to the widow, and putting her in possession, is sufficient, though she has a husband. 5. Notice of the time of the confirmation of the report of the commissioners, is not necessary. If injured by such confirmation, a motion should be made in the same court to set it aside. Error to the Orphans' Court of Perry County. THE plaintiffs in error filed their petition in the orphans' court of Perry county, claiming dower in certain lands described in said petition, in right of said Lucy Ann Adams, who was the widow of James B. Tutt, late of Perry county, deceased, and who, since the death of her late husband, had married the said Benjamin H. Adams. The facts of the case sufficiently appear in the opinion of the court. BROOKS & BYRD, for the plaintiff in error, cited 10 Ala. R. 455; 6 Ala. R. 219; Clay's Dig. tit. Dower. JOHNS and GRAHAM, for defendants, cited Aik. Dig. 2d ed. 613, § 1; Johnson v. Neal, et al. 4 Ala. R. 166. CHILTON, J.-This was an application, by plaintiffs in error, to the orphans' court, by petition, praying the allotment of dower in right of Lucy Ann Adams, widow of James B. Tutt, late of Perry county, deceased, who, since the death of her late husband, had married the said Benjamin H. Adams. Adams, and wife, v. Barron, adm'r. The lands out of which dower is claimed, are particularly described by their numbers as designated in the survey of the United States. The petition asserts, that though some twenty-five tracts are named, they all form but one farm, and lie in one body, but the line between the counties of Perry and Dallas divides the farm. We are not advised by the petition, what lands lie in one county and what in the other, nor do any of the proceedings had in the orphans' court disclose this fact. A writ was issued by the court according to the prayer of the petitioners, and the sheriff of Perry county executed the same, according to its mandate, by the appointment of five commissioners, who allot the dower to the widow, and make return of their proceedings to the said court. The sheriff also returns substantially the facts at large, as reported by the commissioners, who certify that after the allotment, they put the said Lucy Ann Adams into possession of the part thus allotted her for her dower. The court confirmed the action of the commissioners and sheriff, and decreed the dower accordingly. Adams and wife assign for error in this court, 1. That by the writ to the sheriff of Perry, he was required to assign dower in Perry and Dallas counties. 2. To allot dower to Lucy Ann Adams, instead of to her and her husband. 3. That the wife only, and not the husband, was placed in possession of the land allotted. 4. That it does not appear in what manner the sheriff has executed the writ, or in what county the lands lie in which dower is assigned. 5. That the commissioners do not allot by "metes and bounds," but merely by numbers; and 6. That plaintiffs in error had no notice of the time when the report of the commissioners would be confirmed by the court. The case before us presents the singular anomaly of a party complaining at the action of a court, in granting the relief prayed for by them, and which, so far as the record discloses, did not in any manner contravene their wishes. It is unnecessary for us to inquire whether, if the decedent had lands adjoining, and constituting but one tract, which intersected by a county line, the orphans' court of either county, under our statute might not allot the dower. It is a sufficient answer to the objection raised by the plaintiffs in error, that they asked the court so to make the allotment. |