Martin v. Wagner

• Decision Date: 07 March 1946
• Docket Number: 6 Div. 342.
• Parties: MARTIN v. WAGNER et al.
• Court: Alabama Supreme Court

25 So.2d 409

247 Ala. 591

MARTIN v. WAGNER et al.

6 Div. 342.

Supreme Court of Alabama

March 7, 1946

Rehearing Denied April 11, 1946.

Jackson Rives & Pettus and Erle Pettus, all of Birmingham, for appellant.

Lange, Simpson, Brantley & Robinson and Smyer & Smyer, all of Birmingham, for appellees.

STAKELY Justice.

This cause originated in the Probate Court of Jefferson County through a petition to probate the alleged lost will of W. C Martin, deceased. The petition was filed on January 15, 1945 by Dan S. Martin, Jr., an alleged beneficiary under the will and showed that W. C. Martin died on towit July 18, 1940. According to the allegations of the petition the will was duly signed and published by deceased and attested by two competent witnesses, then residents of Jefferson County, who subscribed their names to the will, one of whom was Val J. Nesbit, decedent's attorney.

The allegations of the petition also show that the next of kin of decedent at the time of his death were the widow Zoe Rhode Martin, a brother John D. Martin and a brother Dan S. Martin, Sr., all over twenty-one years of age; that the will was lost or destroyed after the death of W. C. Martin and never revoked; that Zoe Rhode Martin is now deceased and that Esther Wagner has been appointed her executrix; that the will in substance left all of decedent's real estate to his said brothers, all of the income from his stocks, bonds and personal property to his wife for life and at her death to go in four equal parts to petitioner, Sylvia Forbes, a niece, Katherine Isabel Martin, a niece, and to a sister of petitioner, Zoe Rhode Martin. The petition was accompanied by an affidavit of Dan S. Martin, Sr., which stated among other things that the petitioner 'is now in the Armed Service of his Country.'

Esther R. Wagner, as executrix of the estate of Zoe R. Martin, deceased, and individually demurred to the petition on the ground, among other things, that the petition failed to give the name of the other alleged attesting witness, or a valid reason for the failure. The court sustained the demurrer and allowed twenty days to amend.

On February 23, 1945, Dan S. Martin, Jr., amended his petition and filed a motion to continue the hearing of the cause until three months after his service in the armed services had terminated. The court set the cause for hearing on March 30, 1945. The petition was amended by filing the following additional paragraph:

'9. On information and belief affiant states that the said will was prepared by Val J. Nesbit, decedent's attorney, and a copy of same was retained by said attorney among his papers; that the original was at one time with the personal papers of the decedent at his office at the Vulcan Rivet and Bolt Company; that the same was at one time removed to the box or vault of decedent at the bank; and that said will was in existence at the time of the death of the decedent. That the decedent before his death stated to your petitioner that the said will was in existence duly executed and discussed the contents of the same with your petitioner.'

In support of the motion for continuance, petitioner filed an affidavit made in Jefferson County, stating in substance that he ratified and confirmed all the acts of his attorney, that he was in the armed service of his country and unable to prosecute the cause, that he moved to continue the cause and that it be held in abeyance until three months after his service in the armed services terminated and that he invoked the protection of the Soldiers' and Sailors' Civil Relief Act of the United States, 50 U.S. C.A.Appendix § 501 et seq.

Esther R. Wagner, as executrix of the estate of Zoe R. Martin, and individually refiled her demurrer to the petition as amended. The attorney for petitioner thereupon filed the following:

'Now comes said petitioner Dan S. Martin, Jr., by his attorney Erle Pettus, and hereby, after having filed his affidavit, and motion on a continuance under 'The Soldier's and Sailor's Civil Relief Act of 1940, as amended in 1942 and 1944' of the United States, hereby represents to this Honorable Court that he is incapable of properly prosecuting this said cause or suit; on account of his military service at this time; and said petitioner hereby objects to any further action in said cause; and represents to said court that any further action or proceeding in said cause or proceeding will be highly prejudicial to petitioner's rights in the premises.'

And the attorney for petitioner also filed the following:

'Now comes said petitioner by his attorney and after the court over his objection has permitted the refiling of respondent's demurrers to petitioner's amended Petition as amended on Jan. 17, 1945, and after the court over petitioner's objection has ruled upon same sustaining said demurrers; the court thereupon called upon petitioner's attorney in open court to state whether or not he desired to plead further, or whether or not Petitioner desired further time within which to amend or plead further and Petitioner's said attorney answered in reply that because of the absence of Petitioner in the armed services of his country, petitioner was and is unable to amend or proceed further in said cause at this time.'

On March 30, 1945, the court entered a judgment sustaining the demurrer to the petition, as amended. The judgment also contained the following: 'In open court the Petitioner, by his attorney, Erle Pettus, having declined to plead or proceed further in the case, it is therefore.

'Ordered, adjudged and decreed by the court that said Petition, as amended, be and the same is hereby disallowed and on motion of Esther R. Wagner, as Executrix, in open court, said petition is dismissed.'

Questions for decision are: (1) Whether the petition to probate the alleged lost will of W. C. Martin, deceased, was subject to the demurrer and (2) whether the court erred in refusing a stay of the proceedings on account of the military service of the petitioner.

It is quite true, as argued by appellant, that 'although a will is required to be attested by two witnesses, a lost will may be established by the testimony of a single witness, who read it, or heard it read, and remembers its contents.' Allen v. Scruggs et al., 190 Ala. 654, 667, 67 So 301, 306; Skeggs v. Horton, 82 Ala. 352, 2 So. 110. But that rule has nothing to do with pleading requirements where a lost will is sought to be established. In the case of Jordan et al. v. Ringstaff, 212 Ala. 414, 102 So. 895, this court said: 'In a proceeding to probate an alleged lost will, the burden is on the proponent to establish, to the reasonable satisfaction of the judge or jury...