31 Ala. 203 (Ala. 1857), Wittick v. Traun

Citation31 Ala. 203
Opinion JudgeWALKER, J.
AttorneyGEO. W. GAYLE, for the appellant.
Judge PanelSTONE, J., not sitting.
CourtSupreme Court of Alabama

Page 203

31 Ala. 203 (Ala. 1857)




Supreme Court of Alabama

June Term, 1857


APPEAL from the Probate Court of Dallas.

AT the instance of the appellant, Rachel Wittick, who is an emancipated negro, a citation was issued to Henry Traun, who had been previously appointed by said probate court administrator of Frederick Wittick, deceased, requiring him to produce the will of said decedent, which was alleged to be in his possession. In answer to the citation, Traun produced a paper, which purported to be the last will and testament of said Frederick Wittick, but was without signature, and not attested by any subscribing witnesses; and by which two slaves, an eighty-acre tract of land, and some personal property, were bequeathed to said Rachel Wittick, and all the residue of the testator's estate, real and personal, to Philip Henry Traun, his nephew, who was also appointed executor. This will being propounded for probate by Rachel Wittick, and contested by said Henry Traun, an issue was thereupon made up between them, which was submitted to the decision of the court without the intervention of a jury; and, as appears from the final decree of the court, publication was duly ordered and made against the heirs and next of kin of the decedent, whose names are nowhere stated. On the trial of the issue, as the bill of exceptions states, "the plaintiff offered to prove the declarations of the defendant to one Hardy, shortly after the death of said Wittick, to the effect that he was present at the execution of said will, and saw it signed by the testator and subscribing witnesses; that the will propounded for probate, when first found by him among the papers of said Frederick Wittick, was all right; that he folded it up, and placed it in the middle of a bundle of papers belonging to said Frederick Wittick, and placed the same in a sideboard of which one Mary Wittick had the key; that on a subsequent examination of said bundle of papers, said will was found removed from the place in the bundle in which he had placed it, and was on the top of the bundle; that the names of the testator and subscribing witnesses had been cut away; and that defendant asked witness, to whom he then showed the will, if he did not think said names had been cut off with scissors." The exclusion of this evidence, to which the proponent excepted, is the only matter assigned as error.

GEO. W. GAYLE, for...

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