Brown v. Welch

• Decision Date: 17 May 1923
• Docket Number: 5 Div. 845.
• Citation: 96 So. 610,209 Ala. 518
• Parties: BROWN v. WELCH.
• Court: Alabama Supreme Court

96 So. 610

209 Ala. 518

BROWN v. WELCH.

5 Div. 845.

Supreme Court of Alabama

May 17, 1923

Appeal from Probate Court, Elmore County; L. C. Smith, Judge.

Proceeding by Ella Brown to probate a will, and contest by Mrs. W. J. L Welch. From a decree denying probate, proponent appeals. Affirmed.

Rushton & Crenshaw, of Montgomery, for appellant.

C. I Reneau, of Wetumpka, for appellee.

THOMAS J.

The appeal is from the decree of the probate court refusing to admit to probate a paper writing purporting to be the last will and testament of R. C. Wilson, deceased. The instrument offered for probate was contested on the grounds that the same was not subscribed by the testator, and that the alleged attesting witnesses did not subscribe their names thereto as required by law. Code 1907, § 6172; Goldsmith v Gates, 205 Ala. 632, 88 So. 861; Allen v Scruggs, 190 Ala. 654, 67 So. 301.

The questions for decision are: (1) Was there error in overruling the objection of proponent to the testimony of Mr. Hohenberg as to the genuineness of the signatures in question? and (2) Was the finding of the court on the facts so manifestly and palpably erroneous as to require reversal? The witness Hohenberg was shown to be qualified under the statute "being familiar with the handwriting of the person whose handwriting was in question"; and, being so qualified, his comparison of the admittedly genuine signatures of Mr. Wilson with the signature to the alleged will, and his opinion of the genuineness of that signature, were permitted by the provisions of the statute. Provisions of this statute (Act March 6, 1915; Gen. Acts 1915, p. 134) are that comparison of a disputed writing with "any writing admitted to be genuine or proven to the reasonable satisfaction of the court to be genuine" may be made (1) by a witness who is shown to be qualified as an expert; or (2) by a witness who is shown to be familiar with the handwriting of the person whose handwriting is in question; and (3) being so qualified, and having made the comparison and testified as to the result thereof, "such writings and the evidence of witnesses respecting the same may be submitted to the court or jury trying the case as evidence of the genuineness or otherwise of the writings in dispute." Chisolm v. State, 204 Ala. 69, 85 So. 462; Everage v. State, 14 Ala. App. 106, 71 So. 983; King v. State, 15 Ala. App. 67, 72 So. 552. If the testimony of a witness is such as to show that he has the experience requisite to qualify him as an expert, notwithstanding his declaration that he is not such an expert, he is authorized, under the law, to testify as an expert. The question as applied to the witness Hohenberg, whether he had qualified as an expert, it is unnecessary to decide, since he had brought himself...