Torrey v. Burney , 113 Ala. 496 ( 1896 )

COLEMAN, J.

Some of the questions presented for review were considered on a former appeal.-Burney v. Torrey, 100 Ala. 157.

The 16th assignment of error is based upon the following instruction given to the jury, viz. : “The undue influence which will avoid a will, must amount to coercion or fraud, and unless the contestant has by the testimony in the case satisfied the jury the will filed for probate -was not the act of Mr. Torrey, but the will of another, and that the same was induced to be made by such influence as amounts to coercion, they will find for the proponent on the issue of undue influence.” It is insisted by contestant, that the burden placed by the charge, “to satisfy the jury” of the coercion or undue influence, is greater than that imposed by the law ; that to satisfy the jury, means that there must be no doubt or uncertainty in their minds, whereas all that could properly be required was to reasonably satisfy the jury that there was undue influence. We are of opinion that the objection is well taken. Before it can be said that the mind is “satisfied” of the truth of a proposition, it must be relieved of all doubt or uncertainty, and this degree of conviction is not required even in criminal cases.-Prince v. The State, 100 Ala. 146; Rowe v. Baber, 93 Ala. 425.

It is insisted by appellee, that conceding there was error in giving the charge, it was error without injury, inasmuch as the evidence of undue influence was insufficient to authorize a verdict by the jury, that the will offered for probate was the result of undue influence. But for the fact that we find another error in the record, hereafter considered, which necessitates a reversal of the case, we would consider and determine this question; but as the case must be retried, any argument we might make upon this phase of the case as now presented might unduly influence the deliberations of the jury upon another trial. See the following authorities ; Burney v. Torrey, 100 Ala. 157; Knox v. Knox, 95 Ala. 495; Eastis v. Montgomery, 93 Ala. 293.

There are assignments of error predicated upon other instructions given to the jury. The bill of exceptions does not purport to contain all the evidence, except as to the single point relative to the information testator had as to the conduct of his son. It may be, and we must presume, if necessary to support the trial court, there was other evidence on the trial. We are not prepared to say that the court erred in the other instructions given to the jury.-Allen v. Draper, 98 Ala. 590.

The court did not err in admitting the testimony of the witness Webb. It was shown that one of the witnesses examined on the former trial, had since died, and that another was beyond the jurisdiction of the court. The witness Webb testified that the bill of exceptions prepared on the former appeal, was dictated mostly by the witness, and a part by his associate counsel, and that the two went over and compared it together, and that he knew at the time and remembered now, independent of the bill of exceptions, that it was substantially correct, and contained all the evidence of the witnesses. There is nothing in the record to weaken the force of this evidence . We think the rule fully complied with and that both the memorandum and the testimony were competent.-Mims v. Sturdevant, 36 Ala. 636; 1 Wharton on Evidence, §§ 516, 520; Harris v. The State, 78 Ala. 482; Roberts v. The State, 68 Ala. 515; 1 Greenleaf Ev., § 155. In addition, the bill of exceptions does not purport to set out the evidence of this witness, and the same is true of the witness Roden. This latter witness was not an expert upon the question of insanity. The question to the witness Roden to which an exception was reserved, called for a mere conclusion, and a conclusion which involved expert knowledge. It is competent to prove the value of property at a certain time, by showing its value at a prior and subsequent period, within reasonable limits, in the same market. All the testimony of this witness is not set out. We cannot say, he was not examined as to value, at the time of the execution of the will.

The court admitted testimony of the contents of a clipping from a newspaper, without producing the original or accounting for its loss. We are of opinion that therein the court erred. The theory, it seems, upon which the court admitted evidence of the contents of the clipping, was that it was merely collateral or incidental matter, and for the further reason, that the rule does not apply, when the writing “is not evidence of the fact to which it related.”-Ware v. Morgan, 67 Ala. 461; Brown v. State, 63 Ala. 97. The general principle, that oral testimony cannot be substituted for written evidence of a fact, is subject to the exceptions invoked; but the present case is not within either exception. The newspaper clipping purported to give an account of the son’s marriage to another woman, his wife then living. The witnesses, testified, that the clipping was handed'to the testator. The evidence was admissible for the purpose of accounting for the fact, that testator disinherited his son, because of his disgraceful conduct. The writing was not evidence of the fact of marriage, but proponent sought to show that the information contained therein was a fact calculated to humiliate, mortify and estrange the father from the son, and thus to account for his exclusion from the benefits of the will. Whether the newspaper clipping was calculated to have this effect on the mind of the testator, depended on its contents. If the witnesses had stated to testator its contents, instead of handing it to him to read, it would have been proper to have proven the statement by parol. He read the clipping for himself, and it is the original and best evidence of its contents.

We find no error in admitting evidence that contestant had in fact been guilty of marrying a second time, his wife and the mother of his children then living. Such evidence completely met the argument, that interested parties had fabricated the report, for the purpose of prejudicing the testator’s mind against his son.

Reversed and remanded.