Jemison v. Smith , 37 Ala. 185 ( 1861 )

A. J. WALKER, C. J.

If the will of Sion Smith was .not admitted to probate, it follows, that it cannot be read as evidence of title to personal property, and that a copy of it cannot be certified, so as to become evidence under the act of congress of 1790. It is, therefore, a very important question, whether the transcript of the court of ordinary for Washington county, Georgia, shows that there was a probate of the will. All that we find in the transcript, bearing upon this point, is an affidavit by one of the subscribing witnesses, that “ he believes that he assigned his name' at the last part of the within instrument of writing,” taken before “ J. Thigpen, J. P. and following the affidavit, an entry that the executors were sworn. The record also shows, that the executors discharged several of the duties of the executorial trust, and were recognized as executors by the court.'

[2.]- We must judicially know, that the proceedings of courts, of the grade and jurisdiction of the court oí ordinary in Georgia,' as indicated by the constitution and laws of the State in evidence in' this case, are lamentably loose, and that their records are made up with peculiar carelessness. It is the duty of courts, in which the validity of such proceedings is--assailed, to construe the language used in alight as favorable to their maintenance as it will admit, without undertaking to supply that which is absolutely wanting.— King v. Kent, 31 Ala. 542.

[3.] In the probate of wills, there is-but little formality. . It seems, that there was, under -the ecclesiastical law, . no formal announcement' of the judgment of the court - upon the sufficiency of the proof.but the proof made-was endorsed upon the will, and letters testamentary issued--; to the executors. — 2 Swinburn on Wills, 806 ; 1 Williams on Ex. 239 ; Dayton on Surrogates, 194; Slaughter v. Cunningham, 24 Ala. 260. It is not shown to us, that;' at the time wheu the will now under consideration - was-recorded, there was any law'in Georgia, requiring any .greater particularity. - Indeed, -the exemplification of a will, with no greater evidence of probate, was-by this court, in Slaughter v. Cunningham, supra, held admissible in evidence, upon certificates pursuant tó the act of congress of 1790. The only- -manifestation of the judgment of the court upon -the sufficiency of the proof,'which seems to have been in practice given, -where greater formality was not exacted -by the statute, was the letters testamentary, and the recarding-of the instrument. We accordingly find the expressions probate and letters testamentary used as convertible terms-. — 1 Williams on Ex. 239; Dayton on Sur. 194; 1 Jar. on Wills, 214, chap. ix, § 1; King v. Netherseal, 4 Term, 258. In the case of Lay v. Kennedy, (1 Watts & Ser. 396,) there was no judgment as to the sufficiency of the proof; and the court said: “Although there is *no formal decree, that the proof of the will was deemed good; yet that the will was admitted to probate we cannot doubt, as otherwise the grant of the letters of administration would be preposterous and absurd.” It is thus evident, from the practice in the proving of wills, .from the manner in which the terms probate and letters of administration are used, and from the very nature of the acts themselves, that the court, in spreading the will upon the record, and granting to the executors authority to execute it, does assert the establishment of the will in its judgment. We think, therefore, that the record, upon a fair construction, must be regarded as asserting the appointment and qualification of the executors, and that the will was put upon the record ; and these facts involve in themselves an assertion of the probate of the will.

The sufficiency of the proof was a question for the court which took the probate, and its decision cannot be collaterally assailed. It is, therefore, not important for us to .'inquire, whether the affidavit in the record should be intended to be the only proof upon which the court acted, or whether it was sufficient.

;[4.] The view of the subject which we have taken, also renders it unnecessary for us to inquire, whether, from lapse of time, the probate could be presumed, under the circumstances shown; but upon that point we subjoin a .list of authorities, which pertain to the question, whether such presumption might be drawn: Jordan v. Cameron, 12 Georgia, 267; Calvert v. Fitzgerald, Littell’s Sel. Cas. 388-392; Battle v. Holley, 6 Greenleaf, 145; Giddings v. Smith, 15 Verm. 344 ; McArthur v. Carrie, 32 Ala. 75, and cases cited.

[5.] The other parts of the Georgia record, besides the ’-will, affidavit, and appointment of executors, could have had no other effect, than rto support the conclusion that the will was admitted to probate; and there could be no injury .from their admission in evidence.

'[6.] The declarations of A. M. Griffin and Claiborne Griffin were admissible in evidence. They were the declarations of persons, under whom the defendant held, adverse to their interest ; and were relevant, because they contributed to the identification of' the property, if for no other reason.

[7-8.] The two points made by the appellant, that the court had no authority to allow an amendment, by striking out the name of a plaintiff who was dead at the commencement cf the suit, and that depositions taken Before the amendment should have been suppressed, are alike unmafn-tainable. The statute authorizes the making of amendments, by striking out the names of parties and we can’ perceive no reason for restricting the authority to cases where the party was living at the commencement of the suit. As the amendment did not .vary-the issue, or render the testimony inapplicable, and there was nothing in the fact that the deposition was taken’before the amendment calculated to injure the defendant,’ neither justice, nor any rule of practice known to us, required that the depositions should be suppressed. — “Goldsmith v. Picard, 27 Ala. 142 ; Agee v. Williams, 30 Ala. 636.

[9.] We cannot agree that the clause of the will, under which the plaintiffs claim,. is void for uncertainty. “In order to avoid a will'for’uncertainty, it must be incapable of any clear meaning.”' — Mason v. Robinson, 2 Sim. & Stu. 295. Such is not the character of the item of the will which we are called upon to construe. We think we take no undue -liberty with the words, when we interpret it as creating a life-estate in the widow, with remainder to the five children of the testator, if living at her death; and if any of the five children should die before the death of the widow, then to such of the five children as might be living at that time, and the then existing heirs of the body of such as might be dead; and if any of the five children should die before the death of the widow, and leave no descendants, then to the surviving children. The exigency of this case does not require us to extend our construction farther. It is unnecessary for us to inquire into the effect of the provision, “that .if any one of the. children should die before it comes of age, that they all - should have his legacy divided among them.” ' It does-not appear that any of the children died before coming of ¡age. It is manifest, however, that the operation of" this clause would be perfectly consistent with that of,¡the previous item, except in the single contingency of some of the children dying under age leaving issue. Whether, infrhat contingency, such a construction could have been adopted as would have reconciled the two clauses, it is unnecessary to inquire. The phrase heirs of the tody is shown by the context to have been used in the sense of lineal descendants living at the death of the tenant for life, or at the time when the youngest child should come of age. — Powell v. Glenn, 21 Ala. 458 ; Williams v. Graves, 17 Ala. 62; Flinn v. Davis, 18 Ala. 132 ; Bell v. Hogan, 1 St. 536.. The limitation over upon failure of heirs of the body was therefore, hot 'too remote; and the persons who at the designated time, answered to the legal description of heirs of the body, would take in default of sucinof the testator’s five children ás might not then be living.— Shackleford v. Bullock, 34 Ala. 418 ; 2 Jar. on Wills, 1-17.

Judgment affirmed.