Crockett v. Crockett

• Decision Date: 30 June 1838
• Citation: 19 Tenn. 95
• Parties: CROCKETT v. CROCKETT.
• Court: Tennessee Supreme Court

19 Tenn. 95

CROCKETT

v.CROCKETT.

Supreme Court of Tennessee.

June Term, 1838.

At November session of the County Court of Sullivan, 1835, a paper purporting to be the last will and testament of Andrew Crockett was produced for probate by the executrix. It was contested, and an issue devisavit vel non was made up, and a transcript of the record and the original paper were certified into the Circuit Court of the county, for the trial of the issue there. On the trial at April term, 1838, before Powell, Judge of the first circuit, and a jury of Sullivan, John Feathers, one of the subscribing witnesses, testified, “that he was sent for on the 26th of July, 1830, to go to the house of the testator, and when he went, he found Thomas Cawood there; that Cawood had written the paper now in contest; that the testator signed it, and acknowledged it to be his last will and testament; and he and Cawood witnessed it in the presence of, and at the request of the testator; that the paper produced in evidence, in this cause, is the same which he and Cawood witnessed; that it was sealed up and given to him to keep; and that Thomas Cawood, in 1832 or 1833, removed to the State of Illinois.”

His Honor instructed the jury that if they believed this testimony, it was sufficient to dispense with the production of Cawood, and that, so far as this objection was concerned, they should establish the will. The jury found that the paper offered for probate was the last will and testament of the deceased; and a new trial having been refused, the caveators appealed in error.

The Act of 1789, c. 23, provides that in case a written will with witnesses be contested, it shall be proved by all the living witnesses, if to be found, and by such other persons as may be produced to its support.

Arnold, for the plaintiff in error, insisted that no evidence was admissible of the fact that a witness was not to be found, but a return to that effect upon process of subpoena; or proof of his death; or that he had been sought for in the place whither he was known to have removed, and could not be found. And that to render the latter proof competent, the return of non est inventus to a process issued within the State, at least to the place of his former residence, was indispensable.

T. A. R. Nelson, for the defendant in error, contended that evidence of the absence of the witness from the State, or of his being a citizen of another State at the time the paper was offered for probate, is sufficient proof that the witness is not to be found, and would let in testimony of his handwriting. He cited 5 Yerger, 307, McDonald v. McDonald; 2 Carolina Law Repository, Wright v. Wright, and 1 Stark. Ev. 328.

Reese, J., delivered the opinion of the Court.

One of the attesting witnesses to the paper produced in this case for probate as a will, upon the issue of devisavit vel non, resided within the State of Illinois,--and the question is, whether the Circuit Court erred in receiving evidence of his handwriting? The Act of 1789, c. 23, requires that all the attesting witnesses, if living, shall be produced upon the trial of such issue, if to be found.

This court, in a case reported in 5 Yerger, 307,^a1 decided that the return of a subpoena by the proper officer, “that the witness could not be found,” was a sufficient compliance with the Act of Assembly. This is to be understood as applying to a case, where the witness was not shown to be, or to have a residence in any other county within the State. We do not understand, that if, at the trial, it be established by proof that the witness is resident in another State, or in a foreign country, and so without the jurisdiction of the Court, the issuance of a subpoena and the return of an officer are necessary. The only change produced in the common law, by the Act of 1789, c. 23, is the requirement of all the living witnesses to be found within the jurisdiction of the Court. When the attesting witnesses to a deed, will, or other instrument, reside without the jurisdiction of the Court in another State or foreign country, the secondary proof of handwriting is admissible. To transmit original documents from Maine to Louisiana, or from Tennessee to Calcutta, documents in which, frequently others, besides ...