Powell's Distributees v. Powell's Legatees , 30 Ala. 697 ( 1857 )

STONE, J.

It has been settled in this court, that in a contest as to the validity of a will, if the primary court improperly sustain a demurrer to one of the contestant’s pleas, this will afford no ground for the reversal of the case, if the contestant had the full benefit of the same facts under the issues presented by his other pleas. — Dunlap v. Robinson, 28 Ala. 100.

In this case, the contestant, as is shown by the record, had the full benefit on the trial of the facts he would have offered in evidence under the third and fourth pleas ; and, under the authority of the case of Dunlap v. Robinson, supra, we deem it unnecessary to pronounce on the validity of those pleas. If the demurrer was improperly sustained, it was, at most, error without injury. — Spivey v. McGehee, 21 Ala. 417; Jones v. Graham, 24 Ala. 451; Gilmer & Taylor v. City Council of Montgomery, 26 Ala. 665.

This narrows the investigation in this case to two questions : 1st, did the deed of May 9, 1854, operate a revocation of the will ? 2d, is the proof of the execution of the will sufficient to establish it as a will of personal property ?

On the question first above propounded, it may not be out of place to remark, that in England, much critical learning has been displayed on the subject of implied revocations of wills. See a full discussion of this subject in 1 Jarman on Wills, marginal pages 130 to 153. In that country, it seems to be settled that, prior to the year 1837, a will would be impliedly revoked, by a deed which, though operative at law, was impeachable in equity. On the other hand, it was declared that a conveyance which was void at law, on account of the incapacity of the grantor, or for fraud or covin, would not revoke a prior will, which disposed of the property. — See 1 Jarman on Wills, 151-2; Simpson v. Walker, 5 Simons, 1.

Our Code has introduced a different rule. It declares, (§ 1602,) that “when any testator, after making his will, makes any contract for the conveyance of any property devised in such will, and the whole or any part of the purchase-money remains unpaid to such testator at his death, the disposition of the property by such contract is not a revocation of the devise, either at law or equity, unless it clearly appear by the contract, or some other instrument in writing, to be intended as a revocation; and suck property passes to such devisee, subject to the same remedies for a specific performance thereof, in favor of the persons'entitled thereto, against the person to whom such devise was made, as might be had, in law or equity, against the heirs of the testator, had the same descended to them; and the purchase-money, when recovered by the executor of the testator, must be paid to the devisee of such property.”

Section 1603 reads thus : “A charge, or incumbrance, upon any real or personal property, to secure any money, or the performance of any contract, does not operate as a revocation of any devise or bequest of such estate previously executed, unless it appears from the will, or instrument creating such charge or incumbrance, that such was the intention of the testator.” See, also, §§ 1604,1605,1613.

By these sections, we understand it to be the intention of our legislature, to declare that an alteration of the estate devised or bequeathed does not, per se, revoke the will, but that whatever interest remains in the testator passes by the will to his devisee or legatee, unless the intention to revoke expressly appears. Applying this rule to the case before us, we find that a substantial interest remained in the testator ; either a large balance of unpaid purchase-money, or, more likely, a right to vacate the deed of May, 1854, on account of fraud in its procurement.

There is another answer to this objection, which authorized the probate of this will, if its execution was sufficiently proved. The will, after an unsuccessful attempt to dispose of the realty, bequeaths the testator’s entire slave property, without giving their names or number. There is also a residuary clause, which disposes of all the rest of his estate. The deed only conveys certain lands, and certain designated slaves. "Whether the deed conveyed all tbe slaves owned by the testator, or what composed the rest of his estate, the record does not inform us. "We are satisfied that, conceding to the deed full operation according to its terms, the will was prove-able on account of this residuum. — See Taylor v. Kelly, at the present term:

The only remaining inquiry questions the sufficiency .of the proof of the execution of the will. In Hoffman v. Hoffman, 26 Ala. 535, this court, in considering the effect oftheCodeon wills of personalty, executed before it went into operation, held that, in such case, the fact that the testator died after the Code became operative did not render it necessary that the proof should conform to the requirements of section 1611 of the Code. Under our former statute, a will of personalty was valid without subscribing witnesses, and proof of handwriting was sufficient to admit it to probate. — McGrew v. McGrew, 1 Stew. & Por. 30; Shields v. Alston, 4 Ala. 248; Hilliard v. Binford, 10 Ala. 982.

In this case, we think the proof of the handwriting was sufficient. Eour witnesses testify to their belief of the genuineness of the handwriting, and there is no opposing proof. True, the bill of exceptions recites, that the will was in a “dilapidated condition”; but the marks it bore were those of age and careless custody, not of any attempt at its destruction. The entire will was legible. Under these circumstances, we know of no rule of law which will justify us in pronouncing against the validity of the will.

The judgment of the probate court is affirmed.