Slaughter v. Stephens , 81 Ala. 418 ( 1886 )

CLOPTON, J.

— Though issues were formed involving the competency of the testator to make a will, and its procurement by undue influence, tbe record raises no question relating to such issues, nor to tbe sufficiency of the evidence to establish the due execution of the will. The real contestation rests on the issue of revocation vel non. It is contended, that the testator revoked the will by reason of having sold and conveyed a large portion of his real estate devised, after the making of the will, notwithstanding the greater part of the purchase money was unpaid at the time of his death. Whatever dispositions of property made by a testator after making his will, independent of statute, will operate an implied revocation, our statute has prescribed a clear and well defined rule. It has heretofore been considered and construed in two cases, in each of which'it was ruled, that a sale and conveyance of any property devised, after the making of the will, when any part of the purchase money remains unpaid to the testator at his death, does not operate a revocation of the devise, unless it clearly appears by instrument in writing, that it was intended to be a revocation. — Code, § 2287; Powell v. Powell, 30 Ala. 697 ; Welsh v. Pownders, 36 Ala. 668. These decisions have become a rule of property, which should not be disturbed.

There is no error in excluding the declarations of the testator to the witness Beeson, which could have worked injury to the contestants. Passing the fact, that the character of the further declarations, or whether they related to the issues involved, was not disclosed to the court, the purpose of their introduction could only have been to show, either an intention to revoke in the future, or a present oral revocation. Such evidence is incompetent for either purpose. The statute provides, that no will in writing can be revoked, except in cases otherwise specially provided, “ unless by burning, tearing, canceling, or obliterating the same with the intention of revoking it, by the testator himself, or some person in his presence, and by his direction, or by some will in writing, or by some other writing of the testator, subscribed and attested according to law.” It was not proposed to show that the will had been revoked in either of the modes prescribed by the statute. The evidence- was irrelevant, and if admitted could not have affected the results of the case.

On the authority of the cases cited, the judgment must be affirmed.