Newsom v. Guy , 109 Ala. 305 ( 1895 )

McCLELLAN, J.

The motion to strike from the file that which is termed by plaintiff the defendants’ third plea was properly overruled. This was not a plea at all, but a mere statutory suggestion of three years adverse possession, made with a view to an ascertainment of and allowance for the value of permanent improvements.— Code. §§ 2702-5. This suggestion may be made in any •action for the recovery of land, and, not being a defense or plea to the action, there can be no warrant in any case, to say that it is repugnant to or inconsistent with the plea of “not guilty,” which presents all defenses to this class of actions. The special pleas might well have been stricken out for the reason that they were all embraced in the general issue, but the court’s refusal to strike‘them did not injure the plaintiff.

On a former appeal in this case (101 Ala. 682), it appeared or was assumed by the parties and the court that both a will and a codicil, thereto of Whitmel Rutland was executed by him, and duly probated in the probate court of Franklin county in 1857; and, upon this state of case, it was held that Penelope M. Newsom took a fee in the land in suit under the codicil as read and construed in connection with the original will; and there can be no doubt of the correctness of that conclusion if the codicil is to be taken as part of the-.will- But, in tbe record now before us, it is made to appear that the writing which purports to be a codicil was no.t executed by the testator with the formalities essential to its operation as a testamentary disposition of real estate, and that it was never propounded for probate or probated as a codicil at all. The court below, however, reciting in its judgment entry that “the plaintiff then announced in open court that in this suit he claimed title to the land sued for only under and by virtue of will and codicil of Whitmel Rutland, offered in evidence,” ruled that the codicil was to be taken as a part of the will, and that, proceeding on this theory, the plaintiff was not entitled to recover, because, under the codicil, Penelope M. Newsom took an absolute title to the land in suit, and the defendants had succeeded to that title. The bill of exceptions, as its contents are presented here in the abstract, does not bear out this recital of the judgment entry in respect of what was offered in evidence. On the contrary, it shows that the plaintiff did not offer the codicil, but only the original will, the writing called by -the testator a “codicil” coming to the eye of the court only because it was upon the same sheet of paper on which the will was written. The statement in the abstract is as follows : “On the trial of the cause the plaintiff below proved the following facts : That Whitmel Rutland lived and died in that part of Franklin county, Alabama, now forming a part, of Colbert county; that he died in the year 1857; that on the 2nd day of January, 1855, he executed his last will and testament, attested by three witnesses, to-wit, David C. Oats, Alexander Malone and Hector Atkisson; that on the 19th day of February, 1855, he attached to said will a purported codicil, attested by only one witness, to-wit, Hector Atkisson. Plaintiff below introduced a duly certified transcript from the records of the probate court of Franklin county, Alabama, showing that said -will was duly proven in said court on the 9th of February, 1857, and admitted to record ; that it was proven by each one of the ’ three subscribing’ witnesses ; and that the purported codicil to said will was not proven, or even noticed or mentioned, in said ’court.” .The abstract further sets forth in another place that “the will of Whitmel Rutland, with the purported, codicil, the probate of said "will, the testimony of-the subscribing wifcnesses before the probate court of Franklin county, Alabama, on the probating thereof, and the order of the court admitting said will to record, are as follows and were read in evidence on the trial of said cause.” Then follows a copy of the will and the purported codicil, and following these is the entry from the records of said probate court probating the will, in this language :

“The State of Alabama, .......................... ......Franklin county,............................. ..........Court of Probate, in and for said county, and being the 9th day of February, 1857, and the second Monday of' said month, special term of said court. This day came Whitmel Newsom, the proponent, and duly propounded to said court for probate a certain writing or paper purporting to be.the last will and testament of Whitmel Rutland, deceased, late of said county, date'd the second day of January, eighteen hundred ahd fifty-five ; and it appearing to the satisfaction of the court that Hector Atldsson, David C. Oats and Alexander Malone were the subscribing witnesses to the same, they are therefore duly sworn in open court as witnesses to testify in the premises, and they do severally depose and say asfolloweth : said Atkisson testifies that said testator was ■to him well known and signed and sealed the said will in his presence, and the other two subscribing witnesses, David C. Oats and Alexander Malone, do each testify that they were well acquainted with said testator, and that he called on them, and requested them to subscribe as attesting witnesses to the same, and that he, said Whitmel Rutland, declared the said instrument to be his last will and testament, and that he signed, sealed and delivered the same; and all of said witnesses do each state that they all subscribed and attested said will in writing with their names in the view and presence of said testator and in the presence of each other, in this county; and they do each say that they were well acquainted with said Whitmel Rutland, the testator, and, at the time of making and attesting aforesaid, he was of sound and deposing mind, in the full enjoyment of his mental capacity, and that he lived and died in said county. In testimony of all which they, the said witnesses, have and do hereto here now set their names in open court. This 9th day of February, 1857. D. C. Oates, Alexander Malone, Hector Atldsson.”

“íhe State of Alabama, Franklin county. I, James H. Trimble', Judge of the Court of Probate of said county, certify that the foregoing will of Whitmel Rut-land, deceased, was this day, at a special term of said court, duly proven and recorded, with the proof hereto attached, and which was this day duly recorded in Book of Wills, lettered B., pages 237, 238,239, 240 and .241. In testimony whereof, I have hereunto set my hand and seal of said court. At office in the town of Frankfort, .this the 9th day of February, 1857. [Seal] James H. Trimble, Judge.”

We do not understand from the foregoing that the plaintiff offered the codicil in evidence, but, to the contrary, it seems clear chat he offered and relied upon only the original will as the basis of the title under which he claimed; and, this appearing by the bill of exceptions, where only it can be properly shown, it, rather than the recital of the judgment entry, must control in respect of what the plaintiff offered in evidence. Nor do we think that- the recital of the judgment entry that plaintiff announced that he claimed only under the will and codicil of Whitmel Rutland should conclude the plaintiff. This, too, was properly-matter for the bill of exceptions, where it does not appear. But, apart from this consideration, in view of what the plaintiff proved as to the will and codicil, — that the former was duly executed and the latter was not, and that the one wgs propounded for probate and duly probated, and the other was neither propounded nor probated, — the recital in question may be fairly taken to show that plaintiff made this announcement rather to indicate the source of his title— that it came from Whitmel Rutland — than as a statement of the muniments by which it was transmitted into him. And we therefore conclude that the question involved is to be determined without reference to said recital in the judgment entry, that is to say, upon the terms of the will. And, it having been made to fully appear that the purported codicil was never, and is not,. operative in the premises, for that it was neither duly executed nor probated, we must look to the original will. Confessedly, on the will itself the lands in controversy did not pass to Penelope M. Newsom in fee. and hence the title to them is not in the defendants, but is in the plaintiff. The court below erred in giving the affirmative charge for the defendants, and in refusing to give the like charge requested by the plaintiff.

Reversed and remanded.