Pool's Heirs v. Pool's

¶1However “ clear, distinct and intelligent ” may have been the manner in which Dr. Tanner testified, he was the witness of the plaintiff, and his testimony on his direct examination was material; and beyond doubt, it was the right of the defendants, on cross examination, to ask him if he was not then “ under the influence of ardent spirits.” “His powers of discernment, memory, and description,” were proper matters for the consideration of the jury, whose duty it was to determine the just weight and value of his testimony; and if he was under the influence of ardent spirits at the time he was *148testifying, it was proper that the jury should know it. There appears to us no sound reason for denying to the defendants, on cross examination, the right to put the question to him.—1 Greenleaf on Evidence, §§ 446, 448, 449; Campbell v. The State, 23 Ala. R. 44; Williamson v. Stoudenmire, 29 Ala. R. 558; McHugh v. The State, at last"term; Young v. Smith, 25 Missouri R. 341.

¶2[2.] It seems that one of the questions in this case was, whether the will was obtained by undue influence. In the determination of such a question, great latitude is of necessity given to the evidence.—Gilbert v. Gilbert, 22 Ala. R. 529. After some evidence had been adduced, tending to show that Harriet had influence over the testator, and a motive to exercise it to procure such a will as that here propounded for probate, we cannot say that it was erroneous to admit the evidence, that “ Harriet was the reputed daughter of Richard B. Harrison; and, after Bool’s removal to Alabama, Harrison gave Pool 15 or 20 likely negroes.” That evidence may be exceedingly weak, and may, perhaps, he entirely deprived of effect, by the evidence that, after the death of Harrison, Pool delivered back the negroes to Harrison’s administrator; but, however that may be, the evidence was rightly allowed to go to the jury for what it is worth.

¶3[3.] We think the propositions asserted in the charges asked, were rather too strong. The law does not presume undue influence from the facts Supposed in those charges, although it may. not prohibit the jury from inferring it from such facts. The question of undue influence in obtaining a will is one eminently fit for the determination of a jury; and if we were to sustain the charges as asked in this case, we should thereby interfere too much with that freedom of investigation which the law wisely allows to the jury in all such cases as the present.

¶4As the question in relation to Canty’s testimony will probably not be presented in the same shape on another trial, we decline to decide it.

¶5The question raised in this - court, as to the validity of some of the legacies, does not appear to have been raised in the court below, either by the pleadings or charges. *149We therefore decline to consider it, especially as it is not even contended, that every provision in the will is void, and that no part of it can in any event be admitted to probate.—See Florey v. Florey, 24 Ala. R. 241; Ingraham v. Thrasher, 32 Ala. Rep. 645; Hooper v. Hooper, 32 Ala. R. 669.

¶6For the error of the court below on the first point considered in this opinion, the judgment is reversed, and the cause remanded.