Woodroof v. Hundley , 133 Ala. 395 ( 1901 )

TYSON, J.

There was hut oue issue of fact for the determination of the jury, on the trial of the case, notwithstanding there were numerous grounds of contest interposed. That issue was, whether the evidence offered by the proponent was sufficient to authorize the jury to find that the will was duly executed. Confessedly if the will was properly admitted in evidence, the jury had the right to so find. So then, preliminary to the introduction of the will in evidence, it was incumbent upon the proponent to show prima facie its due execution. This lie did, when he made proof of the death of the1 testatrix, the genuineness of her signature, flie death of the three persons whose names appear as attesting witnesses and the genuineness of their signatures, when coupled with the circumstances testified to bv Mrs. Hundlev. — Woodroof v. Hundley, 127 Ala. 640.

But it is insisted that Mrs. Hundley’s testimony was irrelevant and should not have been admitted. This insistence seems to be predicated upon the theory that she was not in the room at the time of the writing of the will, or when it ivas signed by anyone. In other words, she did not see its execution. We do not understand the rule to be, when the attesting witnesses are dead that all the circumstances tending to show their attestation in the presence of the testator cannot be proven. The establishment of that fact, we take it, may be proven by circumstances as well as by direct or positive evidence. Indeed, were the witnesses living the fact of their attestation in the presence of the testator, when controverted, we doubt not, might be shown by circumstantial evidence. Otherwise, proof of the execution of a will would be restricted to the testimony of the witnesses attesting it and its probate dependent upon their veracity. Such a rule would place it in the power of a single witness, to defeat its probate and effectually destroy it. Indeed this result would follow, should the witnesses, though honest and truthful, be unable to recall the fact of attestation in the presence of the testator. The circumstances bearing upon the execution of the will, as detailed by Mrs. Hundley, were clearly competent.

The evidence with respect to the revocation of the will by tearing was substantially the same on this trial as upon the former. In our opinion heretofore, we held, after a careful and thorough consideration of the question, that no act of revocation had been shown, and that all declarations of the testatrix subsequent to the making of the will tending to show that she had revoked it were clearly incompetent. We adhere to what we said in that opinion upon this question as well as upon the one involving the proof of its execution. There was no error in the exclusion of the declarations of the testatrix offered by the contestant. So, too, the fact that the testatrix had, before her death, conveyed certain property, or that she had offered or attempted to sell certain other property, that certain beneficiaries named in the will were not of kin to her, or were dead, or that there had been a change in the testatrix’s church relations, or the estrangement between the testatrix and the contestant’s father had passed away some time before her death, were incompetent. None nor all of these things were nor could be evidence of a revocation.

The assignments of error are so numerous, that it is impracticable to treat each of' them separately. However, all of those insisted upon in argument and based upon exceptions reserved to the admission of testimony are disposed of by what we have said. We have only left for consideration written charges given at the request of the proponent and those refused to the contestant. As to those given for proponent, there was clearly no error. There was an entire absence of evidence to support the grounds of contest designated in each of them. As to those refused to contestant, only one is insisted upon — No. 13. This charge was clearly misleading if not wholly bad. The rule is “if any theory consistent with the validity of the will can be suggested, which appears to the court to be as probable as the theory, on which the argument for the invalidity is based, the will as found must be maintained.” — Barnewall v. Murrell, 108 Ala. 379, 380.

There is no error in the record, and the decree of the probate court admitting the will to probate is affirmed.