Alexander v. Alexander , 214 Ala. 291 ( 1926 )

This is a contest of the will of L. A. Alexander, deceased, offered for probate by W. A. Alexander, brother of the deceased and beneficiary thereunder. The contest formerly rested upon the ground that the deceased had not executed the writing offered for probate, and also upon the ground that its execution had resulted from undue influence exercised by proponent. Alexander v. Alexander, 94 So. 53, 208 Ala. 291.

The trial following the reversal and remandment of the cause on former appeal narrowed the issue to that of the execution vel non of the instrument by the deceased, and, from the verdict and judgment admitting the will to probate, contestant has prosecuted this appeal.

While there are numerous assignments of error, there are but few questions argued and insisted upon in brief of counsel for appellant. Proponent was permitted by the trial court to offer evidence of the good character of the two subscribing witnesses, and it is insisted this was error. The authorities cited by appellant (among them Railroad Co. v. Williams,54 Ala. 168; Starks v. Comer, 67 So. 440, 190 Ala. 245) are merely to the effect that a contradiction of the testimony of one witness by others does not justify general evidence as to character. See, also, Hancock v. Hullett, 82 So. 522, 203 Ala. 272. When a witness has been impeached, however, evidence of character is admissible. One of the methods of impeachment is by proof that the witness made statements out of court contrary to his testimony at the trial. Holley v. State, 17 So. 102,105 Ala. 100; 28 R. C. L. p. 633.

These subscribing witnesses were questioned as to such contradictory statements, which they denied, and proof thereof introduced. Under these circumstances the character evidence offered was properly admitted. Hadjo v. Gooden, 13 Ala. 718; Newton v. Jackson, 23 Ala. 335; Tilley v. State, 52 So. 732,167 Ala. 107; Holley v. State, 17 So. 102, 105 Ala. 100; Towns v. State, 20 So. 598, 111 Ala. 1. These assignments of error are therefore without merit.

W. A. Alexander was permitted to testify as to certain statements made by the deceased testator; and it is urged that this testimony was inadmissible as in violation of section 7721 of the Code of 1923.

The estate of the decedent will not be increased or diminished as a result of this suit, but only the matter of distribution thereof is involved. The estate is not interested in the result, and this testimony did not contravene the foregoing section of the Code, as disclosed by the following authorities: Dent v. Foy, 98 So. 390, 210 Ala. 475; Hendricks v. Kelly, 64 Ala. 388; Darrow v. Darrow, 78 So. 383, 201 Ala. 477.

Other assignments of error complain of the action of the court in overruling contestant's objection to the introduction in evidence of the written testimony of the subscribing witnesses on former trial of the cause. What this evidence disclosed, whether contradictory or corroborative of the testimony of these witnesses on this trial, is not made to appear, as it is not set out in this record. If there was error (a question unnecessary here to determine), nothing prejudicial to appellant has been shown, and no reversible error could therefore be rested upon such ruling.

In the argument as to these assignments appellant has also placed the eighth assignment, which bears no relation thereto. The subject-matter of that assignment of error, however, so clearly presents a matter properly within the scope of cross-examination of a witness as to need no discussion. Appellant has grouped a large number of assignments of error and argued them in bulk, as if presenting the same question. The major portion of these assignments relate to the admission of declarations of the testator, corroborative of the execution of the will, and indicating the motives prompting its execution in its present form, with particular reference to assignments 30 to 38, inclusive. That this testimony was admissible needs no discussion. There are in this group of assignments other assignments bearing no relation to these or similar questions, and, under these circumstances and the rule here prevailing, a consideration of these other unconnected assignments may be pretermitted. Bush v. Bumgardner, 102 So. 629, 212 Ala. 456.

It appears that Carrie Barker, the mother of contestant, was administratrix of the estate of Luke Alexander, her husband, and brother of testator, and also was administratrix upon the estate of the mother of testator and W. A. Alexander, and that bad feeling existed between testator and Carrie Barker growing out of these administrations. There was also evidence tending to show testator considered there was hostility toward him also on the part of Carrie Barker's children. Without the execution of a will, these children would have inherited their father's share of testator's estate, and we are of the opinion the foregoing evidence was admissible as tending to show a motive in part at least for the execution of the will. Assignments of error, based upon all of these rulings, are not well taken.

The action of the court, in giving for the proponent charge 5, constitutes assignment of error 112. The bill of exceptions discloses, as to this charge, that, before passing thereon, the trial court requested the opinion of counsel for contestant as to its correctness, and that they replied that in their judgment it was a good charge, and, acting upon such advice, the court gave the charge, which without such favorable opinion the court would have refused. Having induced such action, if there was error, it is not now available to appellant. Barnewall v. Murrell, 18 So. 831, 108 Ala. 366.

We have here considered the assignments of error argued by counsel for appellant in their brief, and, finding no reversible error, the judgment of the court below will be affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.