Skeggs v. Horton , 82 Ala. 352 ( 1886 )

STONE, C. J.

— -This is the second .appeal in ■ this case, reported as Jaques v. Horton, 76 Ala. 238.

The present suit grows out of an attempt to establish and probate an alleged will of one Cantwell, which is charged to have been lost or destroyed. The entire testimony offered to show the contents of the will is oral, and consists of the viva voce examination of one of the subscribing witnesses ; the only witness who professes to have read - the will, or heard it read.' True, there was testimony of other witnesses tending to prove conversations and admissions made by decedent, which, to some extent, corroborated this main witness ; but he alone undertook to describe the will, and its devises and bequests, in detail. It-is contended for appellant, that when, as in the case of a will, the law requires two subscribing witnesses as a condition of its validity, its contents, in case of its loss or destruction, can not be proved by a single witness. The authorities, in - the. absence of statutory requirement, are opposed to this view. See the authorities collected in 1 Redf. on Wills, 348, note 14; Dan v. Brown, 4 Cow. 483; Steele v. Price, 5 B. Monroe, 58; Dickey v. Malechi, 6 Mo. 177; Jaques v. Horton, 76 Ala. 238.

2. It is contended, in the next place, that the trial judge 6rred in declaring the mea sure of proof required to establish a lost will. This question is raised by charge 4 asked by contestants, in the following language : “ Unless the evidence of the contents of the alleged will is clear and positive-T-not vague 'or uncertain recollections — and of such a character as to leave no reasonable doubt as to any of the substantial parts of the paper, the jury should find- for the contestants.’’ It will be observed that this charge requires the same measure of proof as the law exacts in criminal prosecutions, before juries will be authorized to convict. In Davis v. Sigourney, 8 Metc. 487, it is said, that “the contents of-.a. (lost) wilbcan not be proved, unless by the clearest and most stringent evidence.” In Morris v. Swaney, 7 Heisk, 591, it was said, the evidence must be “clear, full, and satisfactory.” See Matter of Johnson's Will, 40 Conn. 587; Metcalf v. Van Benthuysen, 3 Comst. 424; 1 Greenl. Ev. § 558; 1 Whar. Ev. § 139; Shorter v. Sheppard, 33, Ala. 648. The rule invoked was too strict, and the charge was rightly refused. — Apperson v. Cottrell, 3 Por. 51.

3. Charge 6,-asked by contestants, was rightly refused. It assumed as facts, without hypothesis, what certain witnesses had testified to. The credibility of the testimony should, have been left to the jury. — 3 Brick. Dig. 111, §§ 80, 82.

4. There is a remaining question, raised, by charge 11, given . at the instance of the proponents, and by charges 12 and 14,- requested by contestants and refused. Thomas, the only, witness who testified to having read the will, undertook to describe its devises and bequests, both as to subject-matter and person. He detailed, with sufficient particularity,'two specific devises of real estate, one bequest of personal property, and two pecuniary legacies of two and three hundred dollars, severally, to two named legatees. He then testified, that the will contained another pecuniary legacy of five hundred dollars, to a named person living in Iowa,- but he could not remember the name of the person. There was no other proof as to this legacy of five hundred dollars, and .none tending to show who was the legatee of this -part of .testator’s bounty. He further testified, that the will appointed Thomas J. Cantwell, decedent’s nephew, to be- executor thereof, and made him residuary devisee and legatee of the estate. The court instructed the jury, that they-.might find for the proponents as to the devises and bequests ..to persons whose names the witnesses had testified to, and establish the will to that extent, “ although they may believe there was a bequest in the will of five hundred dollars, to some person whose name is not known, as shown by the evidence.” . The verdict and judgment were in strict, accord with.this instruction, and the will .was established as to said devises and one legacy of personalty, the two pecuniary legacies of two and three hundred dollars, and the residuary bequest to Thomas J. Cantwell. The pecuniary bequest of five hundred dollars was entirely ignored in the verdict and judgment, and as to that the will is not. established.

We have, had much difficulty in arriving at a satisfactory solution of this question ; and if it were one of first presentation, we are not prepared to affirm our satisfactory conviction of the soundness of the reasoning on which the rulings of the courts are rested. This question has been several times before the courts, and, notably, in the matter of the will of the renowned Lord St. Leonards — Sir Edward Sugden — in the Court of Appeal in England. The leading opinion was delivered by Coekburn, C. J., and was fully concurred in, in separate opinions, by Jessel, M. R., and by Lords-Jus tices James and Mellish, aud by Baggallay, J. A. It was a great case ; great because the subject was the holograph of Sir Edward Sugden, generally conceded to have been the most learned English jurist of the present century, if not of all centuries; great, by reason of the large estate it disposed of; and greater, because of the illustrious tribunal before which it was heard. The unanimous opinion of that High Court of Justice is epitomized in the following head-note : “ When the contents of a lost will are not completely proved, probate will be granted to the extent to which they are proved.” — Sugden v. Lord. St. Leonards, 1 L. R. Prob. Div. 154. To the same effect are Steele v. Price, 5 B. Monroe, 58; Jackson v. Jackson, 4 Mo. 210; Dickey v. Malechi, 6 Mo. 177; Dickinson v. Stidolph, 11 J. Scott, N. S. 341; Foster v. Foster, 1 Addams, 462.

The testimony was sufficient, as shown by the verdict of the jury, to establish every provision of the will, except the name and identity of a legatee to whom a pecuniary bequest of five hundred dollars was given. Thomas’ testimony seems to be as full that there was such bequest, as it is of the other provisions of the will. The only apparent imperfection in the proof of this item is, that the witness could not remember nor identify the name and person of the legatee of this particular bequest. There is a residuary clause in the will; and it would seem that the testator as clearly and fully intended that the residuary legatee should not have this five hundred dollars, as that the other and proven provisions of the will should take effect. Where shall this five hundred dollars go ? If it be decreed to the residuary legatee, it would seem he would thereby receive five hundred dollars more of the estate than the testator intended he should have; and this, not because the will was imperfectly executed in any particular, but because, by the destruction or loss of the will, the proof fails to show its entire contents. Should this five hundred dollars fall into the residuary legacy, or should we declare an intestacy as to it? We raise this question, not for the purpose of deciding it. It is not presented by any ruling of the Probate Court in this cause. Our sole purpose is to state, that should the question come before us, we will not consider ourselves concluded by any thing herein decided.

Affirmed.