McBee v. Bowman

• Citation: 14 S.W. 481,89 Tenn. 132
• Parties: McBEE v. BOWMAN et al.
• Decision Date: 20 September 1890
• Court: Supreme Court of Tennessee

14 S.W. 481

89 Tenn. 132

McBEE v. BOWMAN et al.

Supreme Court of Tennessee.

September 20, 1890

Appeal from circuit court, Knox county; S. T. LOGAN, Judge.

Webb & McClung, for appellant.

Williams Sneed & Cocke, for appellees.

CALDWELL J.

On the 19th June, 1874, Samuel Bowman died in Knox county, and in July of the same year a certain paper writing dated January 6, 1872, was duly admitted to probate, in common form, as his last will and testament. By this instrument the whole of the testator's large and valuable estate, consisting of both realty and personalty, was given absolutely to his son, James Wiley Bowman, who disposed of all of it in his lifetime. James Wiley Bowman died on the 30th of March, 1889, and in July following his children and grandchildren filed their petition in the county court of Knox county, seeking to have the probate of said instrument of January 6, 1872, annulled and to have a certain other paper writing of later date (March 2, 1872) probated as the last will and testatment of said Samuel Bowman, deceased. By the terms of the latter instrument the testator devised his real estate to his son James Wiley Bowman, for life only, with remainder to the son's children. R. L. McBee was made party defendant to the petition, because he claimed ownership of a valuable portion of the real estate, under deed from James Wiley Bowman. He filed his answer, resisting the relief sought in the petition on the alleged ground that the paper already probated was, in fact, the last will and testatment of Samuel Bowman, deceased, and that the one presented by petitioners was a forgery. Proper certification was made to the circuit court, where an issue of devisavit vel non was made up and submitted to a jury. Verdict was returned in favor of the paper dated March 2, 1872, and the court adjudged it to be the last will and testament of Samuel Bowman, deceased. McBee has appealed in error.

The first error assigned is upon the action of the court in permitting the counsel of appellees, over the objection of appellant, to open and close the argument before the jury. The general rule is that the plaintiff, or the party having the affirmative of the main issue, is entitled to the opening and closing. The proponent of a will is the plaintiff. He has the affirmative in an issue of devisavit vel non. The burden is upon him to produce the instrument propounded as a will, and to prove its due execution as such. Therefore, under the rule stated, he is entitled to open and close the argument. Caruth. Lawsuit, § 776; Puryear v. Reese, 6 Cold. 25; Porter v. Campbell, 2 Baxt. 83. It is sought to take this case out of the operation of the general rule, by reference to the fact that, in the making up of the issue for the jury, it was admitted of record that the will of January 6, 1872, was duly executed. This admission did not change the affirmative of the issue, or change the rights of the parties in the discussion to be made before the court and jury. It simply dispensed with the production of proof, which would otherwise have been required of the proponent, and stood in its room and stead. 2 Baxt. 83. That the burden of proving a revocation by the execution of a later will was then assumed by the appellees did not make them plaintiffs in fact, nor give them the rights of plaintiffs in the case. Starting out as plaintiff, McBee continued to occupy that relation through the entire trial, and was rightfully entitled to the benefit of opening and closing the argument, though the burden of proof was shifted from him in the progress of the case. Alloway v. City of Nashville, 88 Tenn. 527, 13 S.W. 123.

It is also urged, in support of the action of the trial judge, that the peculiarity of the issue in this case gave appellees the right to open and close; that the paper writing of March 2 1872, was in fact the one under contest; and that they were before the court as proponents. This position cannot be successfully maintained. It is true that this case is unlike the usual one, in that the life of one paper, whose due execution and genuineness are conceded, is attempted to be destroyed by the establishment of a later one; and that, in the issue submitted to the jury, appellees affirmed, and appellant denied, that the later paper was the last will and testament of the testator. But this was only an incidental question, raised for the purpose of showing a revocation of the older paper, which had once been admitted to probate in common form, and which the records of both the county and circuit courts recite was the paper contested. The order of the county court directing that the cause be certified to the circuit court begins by stating that "this is a proceeding to contest the will of Samuel Bowman, deceased, dated January 6, 1872." The issue of devisavit vel non, as made up in the circuit court, begins thus: "This is a contest of the will of Samuel Bowman, deceased, dated January 6, 1872." Thus it is shown that in fact, as in law, the primary matter of contestation was the will of January 6, 1872. As to that, McBee stood in the attitude of proponent and plaintiff. Therefore, under the...