Anderson v. Griggs

• Decision Date: 24 July 1981
• Citation: 402 So.2d 904
• Parties: Gail Griggs ANDERSON and Melanie Grace Marty v. O. C. GRIGGS. 80-57.
• Court: Alabama Supreme Court

Page 904

402 So.2d 904

31 A.L.R.4th 297

Gail Griggs ANDERSON and Melanie Grace Marty v. O. C. GRIGGS.

80-57.

Supreme Court of Alabama.

July 24, 1981.

Rehearing Denied Aug. 21, 1981.

Dan Moran and George K. Williams, Huntsville, for appellants.

James P. Smith of Harrison, Burwell, Smith & Sutherlin, Huntsville, for appellee.

JONES, Justice.

This will contest case presents a single issue: The propriety of the trial court's grant of contestant's motion for summary judgment based solely on movant's supportive affidavit by the late Dr. Griggs's lawyer stating that in 1973 he prepared, and Dr. Griggs executed, a "new" will (now lost), revoking the 1972 will offered for probate by proponents.

Proponents (Appellants) are a granddaughter and a great granddaughter of Dr. J. C. Griggs, who died a widower December 8, 1973. The contestant (Appellee) is the late Dr. Griggs's only child.

This case involves multiple efforts on behalf of Appellants to prove that their deceased kinsman died testate favoring them as beneficiaries as opposed to having died intestate, allowing the Appellee to take the entire intestacy estate. Appellants began by filing for probate a 1972 will which was contested by Appellee and moved to the circuit court. The circuit court ruled adversely to Appellants in its February 20, 1979, order, finding that the 1972 will had been revoked by a subsequent duly executed will, which order of judgment concluded:

"... without prejudice to any proceedings which the proponents or any other proper person might institute in the Probate Court to establish the contents of the subsequent will."

Immediately thereafter, Appellants sought to probate "the subsequent (lost) will" in the probate court. Again, the Appellee moved the contest to the circuit court; and, again, on June 20, 1980, the court granted summary judgment adversely to Appellants, finding that, "There's no possibility that the proponents will be able to satisfy the requirements of establishing a lost will (Barksdale v. Pendergrass, 294 Ala. 526, 319 So.2d 267 (1975))." Appellants now appeal from the June 20, 1980, order and state affirmatively in their brief that the only issue presented is the propriety of the trial court's February 20, 1979, order granting summary judgment with respect to the 1972 will.

Disclaiming any precedential value of our procedural holding, because of the sui generis posture of these proceedings, we have elected to construe these attempts to probate various wills and the contests thereof as a single case, thereby construing the February 20, 1979, order as interlocutory, thus treating the June 20, 1980, order as the final judgment. Therefore, we will treat the appeal as timely filed.

Because our resolution of the dispositive issue here presented turns on the legal sufficiency of Mr. Hardy B. Jackson's affidavit in support of the contestant's motion for summary judgment with respect to the revocation of the 1972 will, we now set forth the pertinent portions of that testimony:

"I prepared a will for Dr. Griggs which was executed on September 4, 1972. After the execution of the September 4, 1972 will, Dr. Griggs asked me to prepare another will for him. During the late summer of 1973 (I am not sure of the date), Dr. Griggs executed a new will in my presence. The will was in writing and was signed by the testator, Dr. J. C. Griggs, in my presence. The will was attested to by two witnesses whose names were subscribed to the will in the presence of the testator, Dr. J. C. Griggs. Finally, this will which Dr. Griggs executed in the summer of 1973, contained a revocation clause, i.e., it contained a clause revoking all papers of a testamentary nature which were heretofore executed by the testator."

The respective contentions of the parties are summarized in Appellee's brief:

"The testimony of Hardy B. Jackson clearly satisfies all of the requirements for proof of revocation by subsequent instrument, as set forth in ALA. CODE, § 43-1-33 (1975) and in (Allan v. Allan, 353 So.2d 1157 (Ala.1977)). Jackson testified that the 1973 will was in writing, that it was signed by the testator, Dr. J. C. Griggs, and that it was attested to by two witnesses who subscribed their names to the will in the presence of the testator.

"In their brief, the Appellants contend that the affidavit of Hardy B. Jackson was insufficient to prove the valid execution of a subsequent will. It is their contention that, in a will contest, the will must be proved by both subscribing witnesses or their absence accounted for. With regard to a typical will contest case, the appellee freely admits that this is a substantially correct statement of the law. However, there is one exception to this rule.

"The rule requiring that the will be proved by both subscribing witnesses (or their absence accounted for) is not applicable if the will to be proved is an allegedly lost will."

The trial court's "Order of Judgment," after summarizing Mr. Jackson's testimony, recites in part:

"Since the proponents of the will have submitted no opposing affidavits, the court has no alternative but to consider the evidence (the testimony by affidavit of Hardy B. Jackson) to be uncontroverted. Thus, since the uncontroverted evidence indicates that another will was properly executed after the execution of the September 4, 1972, will, the will is deemed by law to have been revoked and cannot be admitted to probate.

"The proponents assert that the matter of proving the contents of a lost will is a question for jury deliberation. However, that issue is not now before this Court. This proceeding is not one brought to establish the contents of a lost will. The only issue before this Court is the validity of the September 4, 1972, will."

Code 1975, § 43-1-30, sets out the requisites for a valid will:

"No will is effectual to pass real or personal property, except as otherwise provided in this article, unless the same is in writing 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."

§ 43-1-44 prescribes the mode of proving a will offered for probate, which, in pertinent part, reads:

"(a) Wills offered for probate... must be proved by one or more of the subscribing witnesses, or if they be dead, insane or out of the state or have become incompetent since the attestation, then by the proof of the handwriting of the testator, and that of at least one of the witnesses to the will. Where no contest is filed, the testimony of only one attesting witness is sufficient.

"(b) If none of the subscribing witnesses to such will are produced, their insanity, death, subsequent incompetency or absence from the state must be satisfactorily shown before proof of the handwriting of the testator, or any of the subscribing witnesses, can be received; ..."

As early as 1884, the demands of this statute a codification of the common law were relaxed in cases which attempted to establish and probate lost wills. In Skeggs v. Horton, 82 Ala. 352, 2 So. 110 (1886), the appellant argued that the law required two subscribing witnesses to prove the validity of a will and that a single witness could not prove a lost will. This Court disagreed citing the first appellate decision in the same case which held that a lost will may be established by the testimony of a "single witness, who read and remembers the contents of the will...." Jaques v. Horton, 76 Ala. 238 (1884). The lost will exception itself a product of the common law has been preserved and read into the statute by this Court's decisions, so that a "lost will may be established by the testimony of a single witness, who read it, or heard it read, and remembers its contents." Lovell v. Lovell, 270 Ala. 720, 121 So.2d 901 (1960); Martin v. Wagner, 247 Ala. 591, 25 So.2d 409 (1946); Allen v. Scruggs, 190 Ala. 654, 67 So. 301 (1914).

The exclusive methods by which wills may be revoked are set out in § 43-1-33:

"Except in the cases provided in article 1 of this chapter, a will in writing can only be revoked by burning, tearing, cancelling or obliterating the same, with the intention of revoking it, by the testator himself, or by some person in his presence, and by his direction, or by some other will in writing, or some other writing subscribed by the testator, and attested as prescribed in section 43-1-30. When any will is burned, torn, cancelled or obliterated by any person other than the testator, his direction, and consent thereto and the fact of such burning, cancelling, tearing or obliteration must be proved by at least two witnesses."

Strict adherence to the requirements of this section is necessary to accomplish an effective revocation because "Section 26, Title 61, Code (§ 43-1-33), provides the only method by which a will can be revoked." Kelley v. Sutliff, 257 Ala. 371, 59 So.2d 65 (1952); Parker v. Foreman, 252 Ala. 77, 39 So.2d 574 (1949). See Barker v. Bell, 46 Ala. 216 (1871). This standard of proof, therefore, has been consistently applied by this Court where a party asserts revocation of a will by a subsequent will. Allan v. Allan, 353 So.2d 1157 (Ala.1977); Brooks v. Everett, 271 Ala. 354, 124 So.2d 105 (1960).

Appellee contends that the testimony of Hardy Jackson is sufficient to establish the validity of Dr. Griggs's lost will, despite a lack of any evidence of its contents, and thereby to revoke his prior will. Unquestionably, had the lost will to which Mr. Jackson's testimony alluded been offered for probate, the statement of facts contained in his affidavit would not meet the requisites of the "lost will exception" to § 43-1-44. Our decisions involving the establishment of the validity of lost wills consistently hold that one of the requirements to be met is that the single testifying witness "remember the contents" of the lost will which he read or which was read to him. It must be understood, then,...