Massey v. Reynolds

• Decision Date: 15 January 1925
• Docket Number: 6 Div. 259
• Parties: MASSEY et al. v. REYNOLDS et al.
• Court: Alabama Supreme Court

104 So. 494

213 Ala. 178

MASSEY et al. v. REYNOLDS et al.

6 Div. 259

Supreme Court of Alabama

January 15, 1925

Rehearing Denied May 14, 1925

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Proceeding by Robert F. Massey and another to probate a will, and contest by Mary Reynolds and others. From a judgment of the circuit court affirming the decree of the probate denying probate, proponents appeal. Reversed and remanded.

Neither party, on appeal from decree of probate court denying probate of will, is entitled to de novo trial in circuit court.

The will involved is as follows:

"Be it Remembered that I Isham Eastis of Jefferson county Ala Being of Sound mind and memory but being well aware of the uncertainty of this Life do make this my last will and Testament at my Death after the Payments of my Just Debts and Funerel Expence. Furthemore it is my will and wishes to have my Coffen made by Hand by Some Carpenter and Pay Him well for his worke. Furthermore it is my wishes to have the Grave dug on the old Stile. Furthermore I want the close I ware on Sunday Put on my Ded Body to be Buryed in. Furthermore I want a sinple Funerl I want my Ded Body cared to the Simitery in a wagon or Hacke Furthemore I dont want undetaker to have any thing to do with my Ded Body. Furthermore it is my will and full intention for my Sister Mary Reynoldes to have $500.00 Five hundred Dlls. I want my Sister Rutha Earnest to Have $500.00 five hundred Dlls, I want my Brothe David Thomas Eastis to have $500.00 five hundred Dolls. I want my nice Mamie Purle Earnest or Homes to have $1000.00 one thousnd Dollas, Furthermore it is my will after them I have named gets thares, I want my nepew William Marion Earnest to have the Rest of my Estate all ny Real Estate and Persnle Property Land money and Evy thing I own for him to have and yoose as he see fit. This is my last will and Testament. I also a Point W.B. Baker and my cousen Robt. F. Masey with Bond to act as my Executers to see that the above contentes is Executed accordinge to my wishes.

"Witness

"W.L Tillison

Isham Eastis

"B.A Tillison

Isham Eastis

"This the 1st of Oct 1921."

Harsh, Harsh & Harsh, of Birmingham, for appellants.

Ritter, Wynn & Carmichael and McClellan, Rice & Stone, all of Birmingham, for appellees.

MILLER J.

Robert F. Massey and W.B. Baker, as executors of the will, or instrument purporting to be the will, of Isham Eastis, deceased, filed a petition under the statute to have it duly probated as his last will and testament in the probate court of Jefferson county, where decedent resided at his death. Mary Reynolds, a sister and heir of decedent, and others, objected to and contested in writing the probate of the will on the ground (1) it was not duly executed according to law (2) that said decedent was of unsound mind at the time of its execution; and (3) its execution was procured through undue influence of Mrs. Ruth Ernest and Marion Ernest, either or both.

The probate court, on the hearing, without a jury, entered a decree denying the petition to probate the will on the ground it was not properly executed according to the laws of this state. The petitioners, appellants here, appealed from that decree to the circuit court. It was tried there on the record proper, and bill of exceptions signed by the judge of probate, and the decree of the probate court was affirmed by the judgment of the circuit court. This appeal is prosecuted by the petitioners from that judgment of the circuit court.

The contestants demanded, in writing, a trial by jury in the probate court. The issue on the contest of the probate of a will must be made up under the direction of the court, and such issue must, on application of either party, be tried by a jury. Section 6196, Code 1907. The contestants, after demanding a jury to try the issue, filed a written waiver of that demand. This did not prevent the petitioners under the statute (section 6196, Code 1907) from afterwards demanding a jury to try the issue in the probate court, if they desired. It is true section 1 of an act, approved September 28, 1915 (Gen.Acts 1915, p. 940), states:

"And either party demanding a trial by jury shall not have the right to withdraw such demand without the consent of the opposite party."

This by the statute applies to civil causes at law in the circuit court. It has no application to this cause in the probate court. The petitioners cannot complain at the court allowing contestants, without their consent, to waive the jury trial.

This cause on appeal in the circuit court is not tried de novo, with or without a jury, but it is tried and reviewed upon the record, with bill of exceptions from the probate court, when required, by the circuit court without a jury. Neither party, on appeal from the probate court, is entitled to a de novo trial or a jury trial in the circuit court. Ex parte Sumlin, 204 Ala. 376, 85 So. 810; McKenzie v. Jensen, 195 Ala. 36, 70 So. 678; Truett v. Woodham, 98 Ala. 605, 13 So. 519.

It appears from the evidence and decree of the probate court that the application to probate this will was contested on one ground alone--"that said purporting last will and testament of said Isham Eastis was not duly executed according to law." One averment in the contest stated it "was not duly executed according to law," and another averment therein stated it "was not duly and legally executed." These averments are each sufficient. They each state a valid ground of contest; and the court did not err in overruling demurrers of petitioners to each of them. Section 6196, Code 1907; Barksdale v. Davis, 114 Ala. 623, 22 So. 17.

T.O. Smith, president of a bank, had "a signature card and a check" of Isham Eastis. The petitioners offered them in evidence, and the court sustained objections of contestants to them. In this the court did not commit reversible error, if error at all. They could be relevant only in comparison with his signature to the instrument purporting to be his will. Neither the card nor the check was admitted to contain his genuine signature; his signature to neither was proven to the reasonable satisfaction of the court to be genuine; and his signature, once in the body of the alleged will and twice at its foot or bottom, were shown without dispute to be in his genuine handwriting. So the petitioners cannot complain at this ruling of the court. Act approved March 6, 1915, Gen.Acts 1915, p. 134.

The petitioners, proponents, offered in evidence the original instrument purporting to be the last will and testament of Isham Eastis, deceased, after the subscribing witnesses and many others were examined. The contestants objected to the introduction of it in evidence, on the ground that the execution thereof was not proven, and that the same was not executed according to law. The court sustained the objection, and petitioners duly excepted. A copy of the instrument appears in the report of the case. Did the probate court err in this ruling?

The following rule as to wills has been declared in this court in Woodroof v. Hundley, 133 Ala. 402, 32 So. 570, and it should be remembered and followed by trial courts on applications to probate a will when contested: "If any theory consistent with the validity of the will can be suggested, which appears to the court to be as probable as the theory on which the argument for the invalidity is based, the will as found must be maintained."

In Barnewall v. Murrell, 108 Ala. 381, 18 So 831, this court wrote:

"It is undoubted law that any deficiency in the evidence of subscribing witnesses as to the due execution or identity of the instrument may be supplied by the evidence of other witnesses. If this was not true, the validity of wills would often depend, not upon the existence of facts rendering them valid, but upon the retentiveness of the memory of the subscribing witnesses. Hall v. Hall, 38 Ala. 131. As was said in this case: 'The law makes two subscribing witnesses indispensable to the formal execution of a will; but it by no means follows that the testimony of these witnesses is the only evidence by which the due execution of the will can be established. On the contrary, it is laid down as undoubted law that if, from forgetfulness, the subscribing witnesses should fail to prove the formal execution of the will, other evidence is admissible to supply the deficiency; or, if the subscribing witnesses all swear that the will was not duly executed they may be contradicted, and the will supported by other witnesses or by circumstances. See, also, Dewey v. Dewey, 1 Metc. 349.' The statute does not require that a testator should inform the subscribing witnesses that the instrument they are subscribing is his will, or give them any information of its contents. 1 Jarman on Wills, 80; 2 Green.Ev. 675; Leverett v. Carlisle, 19 Ala. 80; Garrett v. Heflin, 98 Ala. 617."

Preliminary to the will being admitted in evidence, when it is contested on the ground it was not duly executed, it is incumbent upon the petitioners to show prima facie its due execution. This may be done by the subscribing witnesses, and, if their testimony is insufficient, the deficiency may be supplied by other evidence or circumstances, and, if the subscribing witnesses swear it was not duly executed, they may be contradicted by other witnesses or circumstances. Authorities supra; Woodroof v. Hundley, 133 Ala. 401, 32 So. 570.

Our statute (section 6172, Code 1907) provides a will to be effective to pass real and personal property, except as otherwise provided, must be in writing, signed by the testator or some person in his presence and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator.

"The s

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