Allen v. Scruggs

• Decision Date: 07 November 1914
• Docket Number: 546
• Citation: 67 So. 301,190 Ala. 654
• Parties: ALLEN v. SCRUGGS et al.
• Court: Alabama Supreme Court

67 So. 301

190 Ala. 654

ALLEN v. SCRUGGS et al.

No. 546

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from Probate Court, Choctaw County; W.H. Lindsey, Judge.

Petition by Robert Allen to establish and probate a lost will, with contest by Joe Scruggs and others. From a decree denying probate to the will, petitioner appeals. Reversed, rendered and remanded.

G.E McGowan, of Butler, and R.P. Roach and F.G. Bromberg, both of Mobile, for appellant.

W.A Gunter, of Montgomery, for appellees.

McCLELLAN J.

This is an appeal from a decree of the probate court of Choctaw county denying, upon contest, probate to an alleged lost last will and testament of L. Ryal Noble, deceased. A copy of the instrument sought to be probated was exhibited with the petition, and the copy thus exhibited was so amended, by the permission of the court during the trial, as to conform it to the proponent's assertion of the contents of the alleged lost instrument. As amended, the exhibited copy will be set out in the report of the appeal. The contest was heard and decided by the probate judge, without the intervention of a jury. In his opinion the judge said:

"It appearing to the satisfaction of the court, by the testimony of the witnesses examined in open court, that in the month of July, 1900, in said state and county, the said decedent did sign his name to an instrument in writing purporting to be his last will and testament, but the court is not satisfied from the evidence that the copy of the purported will filed with the petition in this case is a substantial copy of the said instrument in writing, the judgment of the court is against the validity of the alleged will, as shown by said petition."

The issues controlling the result of the trial (contest) were these: Whether Noble duly, legally executed his last will and testament in July, 1900. Whether the paper proposed, as stated, for probate, was a reproduction of the substantial parts of the instrument so executed by Noble, if so he did. If both these questions are answered in the affirmative, then whether the instrument was subsequently revoked by Noble. The evidence makes no possible case of fraud or undue influence or of unsoundness of mind in the procurement or execution of the instrument, if it was executed as proponent asserts. One or two witnesses do quote Noble as saying he did not remember signing the instrunent in July, 1900; but this was wholly insufficient, under the entire evidence presented to the trial court, to create any doubt of his mental capacity to make a will at the time it is asserted by proponent he did so. As appears, the issues are few and simple, though a vast volume of testimony was offered as bearing upon their correct solution. The retention in mind of the few simple issues involved necessarily contributes to simplify the determination of the cause.

A preliminary matter presented will be first considered. It is urged for appellee that this court is without jurisdiction, for that there is no sufficient organization of the probate court, pronouncing the decree, shown in the transcript. For such purpose the probate courts are continually open for the exercise of the powers here involved. The transcript affirmatively shows the presence of the presiding judge of the court, Judge Lindsey, on all occasions when the court was called upon to act or in fact acted. The certificate of the judge of probate recites that the transcript is true to the records of the probate court of Choctaw county, in this proceeding. The insistence that this court is without jurisdiction on the transcript presented is without merit.

While a lost will, duly executed, may of course be probated, the absence of the instrument places upon the proponent the burden of establishing its substantial parts by clear, full, and satisfactory evidence. Skeggs v. Horton, 82 Ala. 352, 2 So. 110; Potts v. Coleman, 86 Ala. 94, 100, 5 So. 780.

In Elyton Land Co. v. Denny, 108 Ala. 553, 562, 18 So. 561--an expression that has been repeated in Whitten v. McFall, 122 Ala. 619, 26 So. 131--it was said, in respect of the degree of proof requisite to establish a lost will or deed, that "the proof of the contents *** ought to be such as to leave no reasonable doubt as to" its substantial parts.

Reference to Potts v. Coleman will disclose that the writer in Denny's Case mistook the quotation from Judge Marshall, made in Potts v. Coleman, as stating the rule this court intended to announce, whereas in Potts v. Coleman this court, immediately after quoting Judge Marshall, said:

"We should say, in civil cases, the proof ought to be such as to furnish satisfactory evidence of its substantial parts. Shorter v. Sheppard, 33 Ala. 648."

In Skeggs v. Horton, supra, this court, Chief Justice Stone writing, justified the refusal of a written charge, requested by the contestants, which exacted, as does the statement quoted from Denny's Case, supra, a degree of proof equivalent to that required as a condition to the conviction of one accused in a criminal prosecution. The court said:

"The rule invoked was too strict. *** Apperson v. Cottrell, 3 Port. (Ala.) 51 ."

Shorter v. Sheppard, 33 Ala. 653, 654, declared that the degree of proof requisite to establish the contents of a loss instrument was that it (proof) "should be clear and satisfactory, and such as to secure, as far as possible, the safety designed to be given by the written evidence." It does not appear that this court intended in Denny's Case, supra, while also stating the theretofore accepted rule, to depart from the rule established in Shorter v. Sheppard, Skeggs v. Horton, and Potts v. Coleman, cited above; but, on the contrary, the conclusion is that the statement of a different, more exacting rule in Denny's Case was an inadvertence; and it, and its successor in 122 Ala. 619, 26 So. 131, must be taken as so explained.

In proving, to sufficiency, the contents of a lost instrument, it is not necessary to prove the words of the instrument; proof of the substance of the contents is all that is required. Potts v. Coleman, supra; Laster v. Blackwell, 128 Ala. 143, 147, 30 So. 663.

Of course, an essential to the availing, or the establishment, of a lost deed or will, is that the instrument in question should have been, and, in consequence, is shown to have been, executed as the law requires as to instruments of the character here under inquiry, that it was "signed by the testator or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator." Code, § 6172.

The trial on this contest of the probate of the asserted lost will and testament of L. Ryal Noble, deceased, being by the judge of probate, without a jury, and the evidence being almost entirely ore tenus, the review here of his conclusion on the facts is without presumption of its correctness (Code, § 5361); but it cannot be overturned "unless it is so manifestly against the evidence that a judge at nisi prius would set aside the verdict of a jury rendered on the same testimony." Briel v. Exchange Bank, 180 Ala. 576, 61 So. 277.

L. Ryal Noble was a white man, coming from an entirely respectable family of people. Soon after the War between the States, he began a meretricious association with Kit Allen, a negro woman. The woman lived on Noble's plantation, and during many, many years he had his residence in a building near by that occupied by her. He was once married to one of his race; but his wife appears to have left him. Whether her departure was because of his unlawful conduct or relation with the negro woman, Kit Allen, is not certainly shown. Some say the wife is dead; others that she still lives. They had not lived as husband and wife for a great many years. Of Noble's cohabitation with Kit Allen five children (those named in the proposed will) were born. His fatherhood of them was generally known in that section. The children took the mother's surname; but two of them were entered by him in a school for negroes at Selma, Ala., under the surname of Noble. To the rearing of all these children Noble at least contributed to their support up to maturity; they living with the mother on his plantation as stated. He paid their medical bills, and satisfied demands arising out of misconduct of the boys. The mother was during many years, if not at all times, Noble's cook; he taking his meals in her nearby abode. It is not to be doubted, as upon the whole evidence, that Noble's reprehensible manner of life, boldly maintained and sustained, effected to at least raise about him, as was natural, a degree of ostracism from those with whom he was related by ties of blood. While some or all of his kin may have visited with him and he with them, it does not appear from the evidence that the natural social result of his manner of life was absent in his case. Doubtless he realized his voluntarily established immoral status, and to a degree, at least, withdrew, as it were, from that social association and relation normally to be expected and observed between kindred and friends.

In July, 1900, Noble became seriously ill. In preparation for the end, which he then anticipated, he undertook the making of his will. What took place on this occasion, at that time, must determine the issue of valid execution vel non of a will. In brief for appellees, the contestants' theory is thus stated:

"Our theory is, and we think the court's theory was: That an undoubted attempt to write a will in July, 1900, during the night Noble was expected to die--that this will was the first and impromptu and sudden attempt of an ignorant country justice of the peace to write a will. That he wrote it and

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