Johnston v. King

• Decision Date: 15 April 1948
• Docket Number: 2 Div. 251.
• Citation: 250 Ala. 571,35 So.2d 202
• Court: Alabama Supreme Court
• Parties: JOHNSTON et al. v. KING er al.

35 So.2d 202

250 Ala. 571

JOHNSTON et al. v. KING er al.

2 Div. 251.

Supreme Court of Alabama

April 15, 1948

Rehearing Denied May 13, 1948.

Pettus Fuller, Reeves & Stewart, of Selma, and Meader, Jones & Murray, of Montgomery, for appellants.

M Alston Keith and Keith & Keith, all of Selma, for appellee King.

FOSTER, Justice.

Appellees propouned for probate an instrument as the will of Alice M DeVane King. A contest was filed by appellants. It was tried by the circuit court with a jury. There were verdict and judgment for plaintiffs (section 52, Title 61, Code), and defendants appeal.

The issue raised was whether certain undisputed occurrences established the facts of signing and attestation of the will within the meaning of the Code (section 24, Title 61, Code) especially whether the witnesses subscribed their names 'thereto'. Their subscription was in the presence of the testator at that statute requires. In substantially the language of appellants' brief, the evidence showed without conflict the following occurrences: Alice M. DeVane King died in Germany in June 1941, leaving surviving her, appellee, who is a fifth cousin, and appellants, who are among her next of kin, being second cousins. At the time of her death she was a citizen of Alabama and owned real estate in Dallas County, Alabama; but for more than forty yesrs prior to her death she had been abroad in Europe. Since March, 1939, she had been partially paralyzed as a result of an apoplectic stroke caused by a cerebral hemorrhage which said stroke had affected her right leg, arm and her tongue.

On July 17, 1940, a proceeding relating to the alleged will was had at her home in Heidelberg, Germany. At that time there were present Magdalene Bolch, Elfridea Salzegeber, Albert Weiss and Heinrich Conrath, the latter being a notary public type of German official. When Conrath (the notary) first entered the room no one was present but Miss King, who handed him an unsealed envelope, on the outside of which had been written 'Testament--Last Will and Testament,' and which contained two sets of typewritten sheets of paper, one in English and one in German. (The English and German versions are by stipulation of counsel identical.) This 'will' was signed by Miss King only. It was not signed in the presence of the witnesses, and Conrath did not recall whether or not it had already been signed before his arrival. Conrath told Miss King he had to make 'a minutes' of the proceeding and call 'witnesses to witness the attestation.' These witnesses were called and after they arrived Conrath asked Miss King if the 'envelope with contents were her last will' and she said, 'Yes.' Conrath then took the contents from the envelope and read the 'will' to himself (partly aloud), showed the signature to the witnesses, and asked Miss King if that was her will and if she had subscribed it, to which she said, 'Yes.'

Thereupon a separate instrument of attestation or 'protocol' on an official printed form was filled in, in longhand, by Conrath and read aloud. The 'protocol' was then signed by Miss King and the three witnesses and Conrath, all in each other's presence. The following is the English translation of the German, in which it was written:

'District of the County Court of Heidelbery Magistrate of Heidelberg, Baden Community:

Reverence

III HT 37 6-40

Public Document

Referring to last will of Miss Alice M. DeVane King, Heidelberg, Klingenteich 22

Year 1940

To be destroyed in 19

LJKG Sec. ___ RM

Sec ___ RM

Sec. ___ RM

Sec. ___ RM

Transcription fees _____

Other expenses _____

Total _____

Debtor _____

Invoice No. ___

Date _____

Down _____

Executed at Heidelberg in the residence of Miss Alice M. DeVane King, Klingenteich 22, July 17, 1940 (Seventeenth day of July Nineteen Hundred Forty) before the Magistrate III, Heidelberg.

Present: Justizart Heinrich Conrath of Heidelberg as Magistrate: Comes now Miss Alice M. DeVane King in Heidelberg, Klingenteich 22, born June 6, 1879, in Selma (King's Bend) in the State of Alabama, USA, personally known to the magistrate and apparently of sound mind. She desired to proclaim her last will. For this purpose, the following witnesses were called:

(1) Albert Weiss, M. S., physician in Heidelberg.

(2) Elfriede Salzgeber, servant here, Klingenteich 22.

(3) Magdalene Winter, wife of the railroad clerk, Alois Bolch, here, Klingenteich 22.

All are known to be of sound mind and not to be prohibited to participate in the execution of the will.

Which is stated by comparing

Section 7 through 10 of the Testament Law.

Thereupon, the testatrix, Miss Alice M. DeVane King proclaims to the Magistrate in the uninterrupted presence of all attesting witnesses the following to be her last will:

I hand you herewith a manuscript typewritten on two pages (two sheets) in German and English, each with my signature affixed, and I declare that this manuscript represents my last will. I profess the words and the contents of this manuscript to be my last will.

Thereupon the testatrix hands above mentioned manuscript, which is in an open envelope, to the Magistrate with the declaration that this manuscript contains her last will.

In witness of this procedure, which the witnesses swear to, these three persons affix their names to this document.

Above document was read to the testatrix and approved by her, and was then signed by her together with the witnesses and the Magistrate as follows:

/s/ Miss Alice M. DeVane King

/s/ Dr. J. Albert Weiss

/s/ Magdalene Winter Bolch

/s/ Elfreide Salzgeber

(Signature of Magistrate).'

This 'Protocol' recites that it is a 'public document referring to a last will' of Miss King; that Miss King handed to Conrath an open envelope and declared in the presence of the witnesses that the envelope contained her will and that 'in witness of this procedure' the witnesses, Conrath and Miss King, signed the protocol.

Conrath folded the 'protocol' in the middle and placed the envelope containing the 'will' in the folded 'protocol,' placed them both in another envelope (called a 'testament envelope'), and put a detachable paper stamp on the flap of the envelope, put the envelope in his brief case, and returned to his office. At Conrath's office a secretary took the 'testament envelope,' opened it and removed the contents. The secretary then made certain notations on the envelope and on the 'protocol' and recorded the 'protocol,' but not the 'will.' A cord or tape was then run through the envelope containing the 'will' and the other end of the cord was attached by a seal to the 'protocol.' Both documents were then placed back in the official testament envelope and sealed. This handling of the papers in Conrath's office consumed several hours and the envelope remained in Conrath's possession for some two months, at which time it was delivered by an employee to the official custodian of wills.

The entire procedure followed throughout was that required under the German law for 'rendering' a 'public' will, as set out in the testimony of the German lawyers, Zutt and Curtius, who by stipulation are qualified as expert witnesses.

The only question, we repeat, is whether those undisputed facts are sufficient as a matter of law to show legal execution. We think it is a legal question and not a jury question. In the case of Riley v. Riley, 36 Ala. 496, this Court said it was for the court to determine what facts were necessary to establish the signing and attestation of the will within the meaning of the Code, and that this legal question should not be referred to the jury. See Dawkins v. Dawkins, 179 Ala. 666, 60 So. 289; Elston v. Price, 210 Ala. 579, 98 So. 573, also holding that the question was one of law where there was no dispute in the evidence. We think therefore that the court should have decided the question of whether the will was fully executed.

But since the jury found for plaintiffs propounding the will, it was without injury to defendants to submit the question to them, if the court should decide that the undisputed facts showed a due execution. And if we so decide, it would render innocuous any ruling adverse to appellants in respect to charges given the jury at the instance of appellee, plaintiff below.

The question hinges upon whether this evidence shows without dispute that at least two of the witnesses to the execution of the instrument not only attested its execution, but also subscribed their names 'thereto' in the presence of the testator. There is no controversy but that all three of them attested its execution, and subscribed their names as witnesses on a separate, disconnected sheet of paper under an attestation clause, in the presence of testator. The question is whether that was their subscription 'the...