Barksdale v. Pendergrass

• Decision Date: 25 September 1975
• Citation: 319 So.2d 267,294 Ala. 526
• Parties: Joe BARKSDALE et al. v. Rita Jan Gray PENDERGRASS. SC 1310.
• Court: Alabama Supreme Court

Page 267

319 So.2d 267

294 Ala. 526

Joe BARKSDALE et al. v. Rita Jan Gray PENDERGRASS.

SC 1310.

Supreme Court of Alabama.

Sept. 25, 1975.

Beck & Beck, Fort Payne, for appellants.

Charles M. Scott, Fort Payne, for appellee.

MERRILL, Justice.

Mrs. Mamie C. Henry, a widow, died on October 18, 1972. She had no children, but was survived by a number of nieces and nephews.

No duly executed will was found and Joe Barksdale, a nephew of Mrs. Henry, was appointed administrator of her estate.

Later, Rita Jan Pendergrass, formerly Rita Jan Gray, filed a petition in the Probate Court of KeKalb County to probate an alleged lost or destroyed will of Mamie C. Henry. A copy of the will was made an exhibit to the petition. According to its terms, Mrs. Henry left all of her property to Rita Jan Gray and appointed her as executrix.

Joe Barksdale and Olen Barksdale filed a contest and the case was transferred to the circuit court, where it was tried before a jury. The grounds of the contest were that the purported will was never duly executed, or, that if executed, was destroyed by Mrs. Henry prior to her death.

The jury found in favor of the proponent, Rita Jan Gray Pendergrass. Judgment was entered ordering the will admitted to probate. A motion for new trial was denied and the Barksdales appealed.

In a proceeding to probate an alleged lost or destroyed will, the burden is on the proponent to establish, to the reasonable satisfaction of the judge or jury trying the facts:

(1) The existence of a will--an instrument in writing, signed by the estator 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. Tit. 61, § 24, Code 1940; Lovell v. Lovell, 270 Ala. 720, 121 So.2d 901; Jordan v. Ringstaff, 212 Ala. 414, 102 So. 895;

(2) The loss or destruction of the instrument. Brunson v. Brunson, 278 Ala. 131, 176 So.2d 490; Lovell v. Lovell, supra; Jordan v. Ringstaff, supra;

(3) The nonrevocation of the instrument by the testator. Lovell v. Lovell, supra; Jaques v. Horton, 76 Ala. 238; (4) The contents of the will in substance and effect. Lovell v. Lovell, supra; Jordan v. Ringstaff, supra.

The first question then is whether there was a validly executed will. It is not necessary that the attestation be at the personal request of the testator. It is sufficient if done in testator's presence with his knowledge and consent expressed or implied. Fulks v. Green, 246 Ala. 392, 20 So.2d 787; Ritchey v. Jones, 210 Ala. 204, 97 So. 736.

The testator does not have to tell the subscribing witnesses that the instrument is his will, or to inform them of its contents. Fulks v. Green, supra; Massey v. Reynolds, 213 Ala. 178, 104 So. 494.

It is not necessary for the witnesses to actually see the testator sign his name. Ritchey v. Jones, supra; Woodruff v. Hundley, 127 Ala. 640, 29 So. 98. The testator may acknowledge to the subscribing witnesses that it is his signature on the instrument by his express words or by implication from his conduct and from the surrounding circumstances. Fulks v. Green, supra; Stuck v. Howard, 213 Ala. 184, 104 So. 500.

Assignments of Error 31, 33, 34 and 35 are that the trial court erred in overruling appellants' motion for new trial. Appellants argue the ground of the motion that the verdict was not sustained by the great preponderance of the evidence.

The evidence produced at trial showed that Charles M. Scott, a Ft. Payne attorney, prepared a will for Mrs. Henry in November of 1963. She did not execute the will in Scott's office because she wanted to 'get her own witnesses' in Collinsville where she lived. Scott subsequently made several minor changes in the will and mailed her a final version in January of 1964. Rita Jan Gray was named as beneficiary in every version of the will.

The evidence also showed that sometime around 1964, Bill Cook, Jack Farmer and Cecil Sharp met at Sharp's funeral home and witnessed Mrs. Henry's signature on a document. The testimony adduced at trial indicated that there was some doubt as to whether each of the witnesses knew that the document was a will. Jack Farmer was deceased at the time of the trial. Witness Bill Cook thought that Mrs. Henry mentioned that the document was a will at some time, but Cecil sharp could only say that Mrs. Henry wanted him to witness a signature. Nevertheless, it is apparent that the requirements of Tit. 61, § 24, supra, were met since both Cook and Sharp witnessed a signature which Mrs. Henry acknowledged as her own.

The second thing which the proponent must prove is the loss or destruction of the instrument. Billy McDowell, who rented an apartment from Mrs. Henry between 1967 and 1969, testified that Mrs. Henry showed him a will; that she said Charles M. Scott prepared it; that Cecil Sharp's name was on the will as a witness, and that Rita Jan Gray was the sole beneficiary. He also said that Mrs. Henry kept the will in a purse under a mattress in a spare room. Floyd Gray, the father of the beneficiary, testified that he saw one of Mrs. Henry's nephews at her house shortly after her death. Willard Reaves, an employee of the funeral home, testified that several of Mrs. Henry's relatives visited her house that day after she died. There was also an abundance of testimony that the will might have been lost or destroyed by accident. Finally, attorney Scott testified that several weeks after Mrs. Henry's death he searched the house himself. Proponent Rita Jan Gray Pendergrass subsequently filed an application to compel production of the will. Appellants Barksdale responded 'That the said purported will, if executed, has been destroyed prior to the death of the Testatrix, and was not found in her possession nor among has (sic) effects at the time of her death, and is presumed if ever executed, to have been destroyed in accordance with law.'

The third element of proof involved the presumption of revocation. When the will is shown to have been in the possession of the testator, and is not found at his death, the presumption arises that he destroyed it for the purpose of revocation; but the presumption may be rebutted, and the burden of rebutting it is on the proponent. Lovell v. Lovell, supra; Jaques v. Horton, supra.

Billy McDowell, attorney Scott, and Mildred Johnson, a former neighbor of Mrs. Henry, testified that Mrs. Henry said that she did not want her nieces and nephews to have anything she had; that she had always made it abundantly clear that she wanted to select somebody other than her nieces and nephews; that she was afraid they were going to get her property; that she knew that her nieces and nephews would get her property if she died intestate; that she wanted Rita to have it, and that this was her fixed opinion.

Finally, proponent offered the copy of the will in evidence as proof of its contents.

A jury question was adequately presented under the authorities cited supra, and the jury found for the proponent.

The refusal of the trial judge to grant a new trial on the ground that the verdict is contrary to the weight of the evidence will not be reversed unless, after allowing all reasonable presumptions as to its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court reviewing the cause on appeal that it is wrong and unjust. Alabama Great Southern Railroad Co. v. Evans, 288 Ala. 25, 256 So.2d 861; Southern Railway Co. v. Reeder, 281 Ala. 458, 204 So.2d 808.

After reviewing the record, we cannot say that the trial judge erred in denying appellant's motion for new trial.

Assignment of Error 17 is that the trial court erred in overruling appellants' motion for a directed verdict. Clearly, there was a scintilla of evidence under the law of the case as outlined above. ARCP 50(e).

Assignment of Error 16 is that the trial court erred in admitting into evidence the unsigned and unwitnessed copy of Mrs. Henry's will. Appellants contend that before a purported copy...