Brittain v. Puckett

• Decision Date: 10 September 1935
• Docket Number: Case Number: 24359
• Citation: 173 Okla. 422,1935 OK 731,48 P.2d 1058
• Parties: BRITTAIN v. PUCKETT et al.
• Court: Oklahoma Supreme Court

1935 OK 731

48 P.2d 1058

173 Okla. 422

BRITTAIN v. PUCKETT et al.

Case Number: 24359

Supreme Court of Oklahoma

Decided: September 10, 1935

Syllabus

¶0 1. Wills - Appeal and Error - Will Contest Cases of Purely Equitable Cognizance.

Will contest cases are of purely equitable cognizance. Upon appeal in such cases from the district court to the Supreme Court it is the duty of the Supreme Court to examine the whole record and weigh the evidence; but the findings and judgment of the district court will not be disturbed because of insufficiency of the evidence, unless it is made to appear that such findings and judgment are against the clear weight of the evidence.

2. Evidence - Transcript of Evidence From Shorthand Reporter's Notes in Former Trial Admissible as Deposition.

The evidence in a cause of action in a court of record preserved in the manner provided by section 3827, O. S. 1931, has the same force and effect as a deposition and may, under section 309, O. S. 1931, be admitted in evidence as testimony taken in the cause by deposition, and subject to the same objection at the discretion of the trial judge.

3. Wills - Contest on Ground Another Will Was Executed Subsequent to One Offered for Probate - Preponderance of Evidence Rule Applicable.

In will contest cases, where evidence is introduced to show the execution of a will subsequent to the one offered for probate and the evidence shows the execution of a subsequent will, the only issue involved is whether or not the will offered for probate is the last will and testament of the testator, and the preponderance of the evidence rule prevails and not the statutory requirements necessary to prove the contents of the lost or destroyed will.

Appeal from District Court, Okmulgee County; Mark L. Bozarth, Judge.

Action by W.J. Brittain against T. C. Puckett et al. Judgment for defendants, and plaintiff appeals, Affirmed.

Lafayette Walker and E.W. Smith, for plaintiff in error.

W.W. Pryor, Hugh M. Sandlin, and G.L. Bynum, for defendants in error.

PER CURIAM.

¶1 This is an appeal from the district court of Okmulgee county, involving the probate of the last will and testament of James H. Puckett, deceased.

¶2 The facts are substantially as follows: The deceased, at the time of his death, had been a resident of Okmulgee county, Okla., for several years, and in said county, on or about the 29th day of July, 1916, the deceased executed a will, devising and bequeathing the major part of his estate to W.J. Brittain, the plaintiff in error. After the execution of the above-mentioned will, and sometime during the month of May, 1923, the deceased executed a subsequent will. The 1923 will was not introduced in evidence, offered for probate, or its whereabouts explained. However, its execution was shown by three witnesses, and one of the three witnesses testified that, among other things, the 1923 will contained the usual revoking clause and that the revoking clause in the 1923 will expressedly revoked the 1916 will.

¶3 When the 1916 will was originally offered for probate, it was admitted to probate, and through the proper channels appeal was taken to this court, said appeal being based upon the error of the trial court in excluding certain evidence, and the cause was remanded to the trial court with directions to retry said cause and to admit the evidence it had excluded in the former trial. Puckett v. Brittain, 152 Okla. 184, 3 P.2d 876.

¶4 At the subsequent trial the witnesses, whose testimony was excluded in the former trial, were absent from. Okmulgee county, and the trial court on retrial permitted the introduction of the case-made in the former trial, and allowed the defendant in error to read the testimony of the witnesses in the former trial, and to read the case-made and the evidence at the former trial, as a deposition in the instant case, and thereupon denied probate of the 1916 will.

¶5 The appellant sets out in his petition in error seven assignments of error, and then in his brief he groups them under two propositions. We shall address ourselves to the two propositions in the order assigned:

(1) That the court erred in the admission of evidence on the part of the plaintiff.

(2) That the judgment of the court is not sustained by the evidence, and is contrary to law.

¶6 The material testimony objected to was the testimony of four witnesses, who had testified at a former trial in this matter, from which judgment in said former trial an appeal had been perfected to this court. Puckett v. Brittain, supra.

¶7 Section 294, O. S. 1931, provides, among other things, that:

"The deposition of any witness may be used only in the following cases:

"First. When the witness does not reside in the county where the action or proceeding is pending, or is sent for trial by change of venue, or is absent therefrom. * * *"

¶8 And section 309 O. S. 1931, provides:

"When a deposition is offered to be read in evidence, it must appear to the satisfaction of the court that for some legal cause the attendance of the witness cannot be procured."

¶9 And section 3827, O. S. 1931, provides:

"The shorthand reporter in any court of record shall file his notes taken in any case with the clerk of the court in which the cause was tried. Any transcript of notes so filed, duly certified by the reporter of the court who took the evidence as correct, shall be admissible as evidence in all cases of like force and effect, as testimony taken in the cause by deposition, and subject to the same objection; a transcript of said notes may be incorporated into any bill of exceptions or case-made. On appeal it shall be the duty of the reporter to furnish such transcript when demanded, as required by law. If any reporter ceases to be the official reporter of the court, and thereafter makes a transcript of the notes taken by him while acting as Official reporter, he shall swear to the transcript as true and correct, and when so verified the transcript shall have the same force and effect as if certified while he was official reporter."

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