Barnewall v. Murrell

Decision Date17 December 1895
Citation18 So. 831,108 Ala. 366
CourtAlabama Supreme Court

Appeal from probate court, Mobile county; Price Williams, Jr. Judge.

Proceeding instituted by William Barnewall for the probate of the will of his deceased wife, Mary E. Barnewall, which was contested by Eveline Murrell and others, nieces and nephews of decedent. From a decree entered upon the verdict of a jury finding that the instrument was not the last will of the decedent, and denying its probate, proponent appeals. Reversed.

Mrs Mary E. Barnewall died June 28, 1894, and left an instrument purporting to be her last will and testament. William Barnewall, her husband, who was named in said instrument as her executor, propounded the instrument for probate as the last will and testament of said Mary E. Barnewall, deceased. Eveline Murrell, Mary B. Murrell, Minnie Demming, Hunter Rutland, and Duke Rutland, Mary E. Barnewall's nieces and nephews, who are the children of two of her deceased sisters instituted their contest to the probate of said will. All of the grounds of said contest, except two, were stricken out upon demurrer, and these two remaining grounds were as follows. "(2) That said instrument now propounded for probate was not signed by the said Mary E. Barnewall, deceased, or by any person in her presence and by her direction, as her last will and testament. (3) That the said instrument propounded for probate was not signed by said Mary E. Barnewall, deceased, nor by any person in her presence and by her direction, as her last will and testament, and attested by at least two witnesses subscribing their names thereto in her presence." Trial was had upon issue joined upon these two grounds. On the cross-examination of John E. Mitchell as a witness by the contestants, he was asked whether a certain clause in the will was not a misapprehension on the part of the testatrix relative to the share which the contestants received from their grandfather's estate. This question was objected to by the proponent. The court overruled the objection, allowed the witness to answer, and to this ruling of the court the proponent duly excepted. After the evidence had closed, the contestants moved the court to rule out all of the testimony of the witness Mitchell which had been introduced over the objection of the proponent, in answer to the question as above stated, and also requested a charge to the jury to the effect that they should not consider such evidence in making up their verdict. This motion was objected to by proponent, on the ground that it came too late, since a party could not introduce evidence and then have it ruled out on his own motion. The court refused to grant the motion to exclude the evidence, and also refused to read the charge to the jury. H. A. Lowe, who was examined as a witness by the contestants, on his direct examination stated that, about 18 months or 2 years before the day of the trial, he picked up a piece of paper on Government street, that was torn from a piece of note paper, which had reference to a chalice, and the melting up of some silver in the memory of her daughter Isabel; that this writing was in a lady's handwriting, but that he could not swear whose writing it was. The proponent objected to the question which elicited this testimony, and also to the testimony adduced, and moved to exclude it from the jury. The court overruled each of the objections and motion, and to each of these rulings the proponent duly excepted. The other facts of the case are sufficiently stated in the opinion.

Among the charges requested by the proponent, and to the giving of each of which the proponent separately excepted, was the following: (9) "If the jury believe the evidence, they must find that the will now offered for probate by the proponent is the last will and testament of Mary E. Barnewall, deceased, and that the same is legally executed and entitled to probate and record." In reference to the twelfth, fourteenth, fifteenth, and sixteenth charges asked by the proponent, the bill of exceptions recites: "The court failed to mark any of said charges either 'Given' or 'Refused,' and did not give or refuse said charges in writing, as asked to do by proponent." This fact is made the basis of an assignment of error on the present appeal. The court, at the request of the contestants, gave to the jury, among others, the following written charges: (1) "The court charges the jury that the proponent is bound upon this hearing to make proof of every fact essential to the validity of the instrument propounded, and of every fact on which the jurisdiction of this court to probate the instrument depends, and if the proponent has failed to satisfy the jury of every such fact, they should find their verdict for the contestants." (2) "The presumption is always against a paper which bears self-evident marks of being unfinished, and it behooves those asserting the testamentary character of an instrument to show, either that the deceased intended the paper in such condition to operate as a will, or that she was prevented by an involuntary accident from completing it." (3) "The court charges the jury that they must find for the contestants, unless it affirmatively appeared that Mrs. Barnewall intended, at the time she executed it, that the paper propounded for probate should operate as her will, without any further changes, alterations, or additions." (4) "The court charges the jury that wills, to be valid, require the genuine intent that the instrument operate as a will as it stands at the time of its execution, and without any other formalities or changes, and the mind must act freely and understandingly to this intent; and it will vitiate an alleged will if, for any reason whatever, it was made without the idea of making it operate as a will." (5) "The court charges the jury that, no matter how clearly it may be shown that the paper offered for probate was signed by the testatrix and attested by witnesses, it cannot be probated as the will of Mrs. Barnewall unless it affirmatively appears that she signed the same with the firm resolution and advised determination to make the document a testament." (6) "The court charges the jury that the question in this case is, not alone whether Mrs. Barnewall observed all of the formalities that the law requires in order to make a will, when the intent is that the paper shall, as executed, operate as a will, but also whether Mrs. Barnewall did intend this paper to operate as a will as it stood, at the time that she signed it. If she did not so intend it, there was no will, and the jury ought to find for the contestants." To the giving of each of these charges the proponent separately excepted.

Upon the submission of the cause to the jury, they returned a verdict that the instrument offered for probate was not the last will and testament of said Mary E. Barnewall. A decree was rendered in accordance with this verdict. The present appeal is prosecuted by the proponent from this decree of the probate court; and the rulings of the trial court upon the evidence, and the other rulings of the court to which exceptions were reserved, are assigned as error.

John E. Mitchell, Miller & Prince, and Overall, Bestor & Gray, for appellant.

Gregory L. & H. T. Smith, for appellees.


Error in the admission of illegal or irrelevant evidence is cured by its subsequent withdrawal, and a positive instruction to the jury to disregard it. 1 Brick. Dig. 809, § 88. The contestants proposed to withdraw from the jury the evidence which they had, on cross-examination, elicited from Mitchell, to the introduction of which the proponent had objected, and had reserved an exception to the overruling of the objection, accompanying the proposal with the request for a specific instruction to the jury to disregard it. The proponent objected, and at his instance the court overruled the motion and refused the instruction. If the evidence remained before the jury, it was with the consent of the proponent, and he cannot be heard, on error, to complain of its original introduction. Errors of this character, which a party induces a court to commit, or in which he induces a court to persist, when his adversary is seeking by legal methods to correct them, are not available as causes for a reversal of a judgment or a decree.

We are unable to conceive of any theory or reasoning upon which the evidence of Lowe, that, some 18 months or 2 years before the trial, he found, on the street on which the testatrix resided, a fragment of note paper bearing the writing of a lady, using some of the expressions employed in the will touching the memorial chalice to her daughter which the testatrix directs to be prepared, was admitted. If the writing was that of the testatrix, and was subsequent to the execution of the will, now matter of mere speculation or conjecture, in which a jury should not be induced or permitted to indulge, it was not relevant, but was foreign to any pertinent hypothesis involved in the issues on which the jury were to render a verdict. The only reasonable, just inference to be drawn from the writing, in any event, was that the testatrix had in her thought and under consideration the directions in reference to the chalice, and may have contemplated changes in them, or possibly a revocation. It is not infrequent that testators entertain thoughts, or have in contemplation changes or alterations or revocations of gifts or directions they may have expressed in their executed wills. The fact that such thoughts have been entertained, or such changes or alterations or revocations contemplated cannot affect the validity of a duly-executed will, in its integrity, or in any of its parts, Until there is change or...

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