Baker v. Eastis

• Decision Date: 26 November 1926
• Docket Number: 6 Div. 551
• Citation: 215 Ala. 402,110 So. 705
• Parties: BAKER et al. v. EASTIS et al.
• Court: Alabama Supreme Court

110 So. 705

215 Ala. 402

BAKER et al. v. EASTIS et al.

6 Div. 551

Supreme Court of Alabama

November 26, 1926

Rehearing Denied Jan. 6, 1927

Appeal from Probate Court, Jefferson County; J.P. Stiles, Judge.

Petition of Robert F. Massey and W.B. Baker to probate a will, with contest by Mary Reynolds, David F. Eastis, and others. From a decree denying probate, petitioners appeal. Reversed and remanded.

Harsh &amp Harsh, of Birmingham, for appellants.

Ritter Wynn & Carmichael and McClellan, Rice & Stone, all of Birmingham, for appellees.

This case was submitted under Supreme Court rule 46, and the opinion of the court was prepared by Mr. Justice MILLER.

This is a petition by Robert F. Massey and W.B. Baker to have probated an instrument as the last will and testament of Isham Eastis, deceased, in which they are named as executors.

Mary Reynolds, a sister and heir of decedent, and other heirs contested in writing the probate of this instrument on the sole ground it was not executed as required by the laws of Alabama.

This is the second appeal to this court in this case. See Massey v. Reynolds, 213 Ala. 178, 104 So. 494. It was first tried by the probate judge, without a jury. He held the instrument was not admissible in evidence and, under the testimony, could not be probated, as it was not duly executed as the statute requires. The petitioners appealed to the circuit court, and the conclusion of the probate judge was confirmed by that court. Then the petitioners appealed to this court, and it was here held that the instrument, under the testimony, should have been admitted in evidence and the probate judge erred in excluding it; and, as the bill of exceptions failed to state it contained all or the substance of all the testimony, this court could not decide whether or not the instrument should be admitted to probate as the will of decedent. So the cause was reversed and remanded for another trial de novo. 213 Ala. 178, 104 So. 494.

When the cause was remanded by this court for another trial the petitioners, proponents, demanded a trial by jury. The same issue was tried in the probate court with a jury. They found the issue in favor of the contestants, and from a judgment thereon by the probate court against the probate of the instrument propounded, this appeal is prosecuted to this court by the proponents, the petitioners.

Isham Eastis died on the 11th of July, 1923, in Jefferson county Ala., where he resided as a citizen of this state. Among his possessions, after his death, was found an envelope which was sealed and had this indorsement thereon, in his handwriting:

"Last will and testament of Isham F. Eastis not to be opened until all parties are present."

The instrument bears date of October 1, 1921. The envelope was opened. It contained the instrument offered for probate as the last will and testament of Isham Eastis, deceased. It is set out in full in the report of this case on former appeal. See 213 Ala. 179, 104 So. 494, for it. It is, without dispute, that this instrument is in writing, entirely--every word of it--in the handwriting of the decedent, except the names of the witnesses W.L. Tillison and B.A. Tillison. The name of the testator appears in its body, and his signature appears twice at the bottom of the instrument in his handwriting. There are two names written under the word "witness." Each of said persons testify that he wrote his name there. That part of the statute applicable states:

"No will is effectual to pass real or personal property *** unless the same is in writing signed by the testator *** and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator." Section 10598, Code of 1923; section 6172, Code of 1907.

So this instrument, on its face, when taken from the sealed envelope, where it was inclosed with this indorsement thereon made by the testator, "Last will and testament of Isham F. Eastis," appears regular, properly executed and duly attested as the statute requires.

The instrument was shown to W.L. Tillison, and he testified:

"Isham Eastis called us into his house and asked us to sign our names, as witnesses, to a paper which he said was his will."

When shown the paper purporting to be the last will of Isham Eastis, the witness further testified:

"The paper which you show me is the one we signed, and the name, 'W.L. Tillison' under the word 'witness' was signed by me. The name 'B.A. Tillison,' signed under my name, was signed by my brother. Those two signatures were signed by us in response to the request of Mr. Isham Eastis, and he asked me and my brother to sign in his presence, and we both signed it in each other's presence."

The testimony of B.A. Tillison was substantially the same as his brother's. Their testimony on the first trial was introduced in evidence on this trial, and it is referred to and quotations are made from each, in the opinion in this court in 213 Ala. 178, 104 So. 494, which will not be repeated here. But they each also testify that the paper was so folded by the testator, when they signed it, that they could see no writing thereon, not even the word "witness" nor the signatures of Isham Eastis; that the signatures of Isham Eastis were not written at the bottom of the instrument when they signed it. They state it was signed by each of them in October, 1921.

W.L. Tillison also testified:

"You asked me what occurred there that made me think, for the first time, whether or not there was a signature on the will at the time I signed it, and I answer, 'I--when--after he died, I got to thinking about it, studying how it was, and I remembered. I remembered I hadn't seen anything on it, and that was the first time I had thought about it since then.' I wasn't studying about it at the time I signed the will or about it every day. Yes, sir; I have sworn that, at the time I signed the will as a witness, I never thought about it, and my attention was not called to whether or not there was a signature of Mr. Eastis on it and I never thought about it, and that is so. And it is so that, for the first time in my life, I thought about whether or not the signature of Isham Eastis was on the will was when Mr. Ritter and Mr. Reynolds came out to my house.

"No, sir; there was no writing visible on the paper when I put my name on it. Mr. Eastis kept his hand on that paper when me and my brother wrote our names on it. It was lying on the table folded this way, and he kept his hand on it. Yes, sir; Mr. Ritter came out to see me and my brother. I am not a lawyer, and I never knew what it took to make and execute a will under the laws of Alabama. I am a farmer, about 39 years old. Mr. Ritter and Mr. Dan Reynolds did not come to my house after the death of Mr. Eastis and make any suggestions to me as to what I should testify in this case. They did make inquiries as to what did take place on that day, and in answering the questions I told him I never saw his signature or writing of any kind on that paper. My brother was present when they were there."

B.A. Tillison also testified:

"You ask me who I talked to before I testified the first time about this case, and I answer, 'I did not talk to any one but you and Mr. Ritter; made a statement to you and Mr. Ritter. I did not talk to you in the presence of Mr Ritter; I talked to you separately. I talked to Mr. Ritter first. Mr. Reynolds was with Mr. Ritter when I talked to him; that was the first time and that is all who were with me.' You asked me if that was the first time I talked to anybody about whether the signature was there, and I answered, 'No; Mr.

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