Thompson v. Rainer , 117 Ala. 318 ( 1897 )

McCLELLAN, J.

Under the decision of Barksdale et v. Davis et al., 114 Ala. 623, there is no escape from the conclusion that the probate court erred in sustaining proponent’s demurrer to contestant’s first assignment of ground of contest; that statement of the ground of contest was in all respects sufficient.

This error must work a reversal of the judgment unless it affirmatively appears that no injury resulted from the error to the contestant. This can not, in our opinion, be affirmed on the record before us. The effect of the ruling was to leave no issue before the court as to the due execution of the will upon which the contestant might have adduced evidence contravening the prima facie case of due execution made by the testimony of the subscribing witnesses. It may well be that the contestant had no such evidence but wTe do not and can not know this ; and it can not, therefore, be said that the presumption of injury arising from error is overturned or rebutted by the'record. The mere fact that the subscribing witnesses deposed to facts showing due execution did not authorize contestant to introduce evidence to the contrary in the absence of an issue on that point, nor would the testimony of such witnesses foreclose the issue had it been presented ; but contestant would have had the right to bring forward other evidence going to show that the alleged testament was not duly executed. This right was denied him by the erroneous ruling of the court, and there is nothing in the record which would enable us to say that the right was of no value, and hence that contestant’s deprivation of it was not injurious to him.

The judgment of the probate court must be reversed. The cause is remanded.

Reversed^and remanded.