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04/28/95 FORREST CRIM v. COLLEEN C. PIKE

April 28, 1995

FORREST CRIM
v.
COLLEEN C. PIKE



Appeal from Shelby Circuit Court. (CV-92-667). J. Michael Joiner, Judge.

Rehearing Denied June 23, 1995.

Shores, Hornsby, C.j., and Maddox, Kennedy, and Cook, JJ., concur.

The opinion of the court was delivered by: Shores

SHORES, JUSTICE.

This is an appeal from a judgment based on a jury verdict in a will contest. We affirm.

Billie Crim died on July 27, 1992. She was survived by her husband of 39 years, Forrest Crim, and her daughter from a prior marriage, Colleen C. Pike. Two wills were offered for probate in Shelby County: 1) a will naming Forrest as executor and devising the residuary estate to him was dated April 20, 1987; 2) a will naming Colleen as executrix and devising the residuary estate to her was dated July 9, 1992.

Colleen contested the 1987 will on the grounds that it had been revoked by the subsequent July 1992 will. Forrest contested the July 1992 will on the grounds of lack of testamentary capacity, lack of proper execution, undue influence, and fraud. Colleen filed a motion to transfer the will contest to the Shelby County Circuit Court, pursuant to § 43-8-198, Ala. Code 1975.

The case was tried in the circuit court before a jury in December 1993. At trial, Colleen offered a third will, dated May 5, 1992, that, like the July 1992 will, named her as executrix and left the residuary estate to her, as further evidence that the 1987 will had been revoked. After both parties had rested, Colleen made an oral motion to amend her pleadings to conform to the evidence adduced at trial, under Rule 15(b), A. R. Civ. P. The court granted her motion in open court. The trial Judge directed Colleen to file an amendment to her petition for probate to ask that the May 1992 will be admitted to probate in the event that the July 1992 will was held to be invalid.

The trial Judge submitted both 1992 wills to the jury, by special interrogatories. The jury found that the July 1992 will was invalid for want of testamentary capacity, but found the May 1992 will valid. After the trial, the Judge entered an order, dated January 5, 1994, reading as follows:

"ORDERED ADJUDGED AND DECREED by the Court as follows:

"1. The last will and testament of May 5, 1992 shall be admitted to Probate and Letters Testamentary shall be issued by the Probate Court to the [executrix] named therein.

"2. The estate shall be [administered] pursuant to the terms of the Last Will and Testament of May 5, 1992.

"3. This matter shall be transferred back to the Probate Court upon the passage of forty-two (42) days from the date of this Order unless this matter is appealed before that time."

On February 4, 1994, Forrest Crim filed a motion for a new trial and a motion to alter, amend, or vacate the judgment. The trial court ...


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