McCutchen v. Loggins

• Decision Date: 16 January 1896
• Citation: 19 So. 810,109 Ala. 457
• Parties: MCCUTCHEN ET AL. v. LOGGINS ET AL.
• Court: Alabama Supreme Court

19 So. 810

109 Ala. 457

MCCUTCHEN ET AL. v. LOGGINS ET AL.

Supreme Court of Alabama

January 16, 1896

Appeal from city court of Decatur; W. H. Simpson, Judge.

Bill by E. L. D. McCutchen and others against W. J. Loggins and others. From a decree for defendants, complainants appeal. Affirmed.

The bill in this case was filed by the appellants against the appellees. The purpose of the bill, and the facts of the case, are sufficiently stated in the opinion. After the jury was charged, and while they were deliberating upon their verdict, the presiding judge entered the room where they were deliberating, two or three times, under the following circumstances: The first time, about 7 o'clock, by the consent of the counsel for both parties, to ascertain if the jury had agreed on a verdict, for the purpose of having the bailiff order supper for them if they had not agreed. He went again about 10 o'clock on the same night, for the purpose of seeing if there was a probability of the jury agreeing upon a verdict within a reasonable time, with a view of entering a mistrial, and discharging them, if there was no such probability. This visit was also with the consent of the counsel of both parties, and the intention with which it was made was not stated to the jury. The bill of exceptions then recites: "About eleven o'clock the judge was informed by the bailiff in charge that one of the jurors was at the door of the court room and desired to speak to him. The judge went to the door, and immediately inside the court room. The juror said they had already agreed on a verdict in favor of the third will, but he desired to ask a question in reference to it. The judge informed him that he could not and would not hear a word from him about the case, except in the presence of the other jurors and counsel for both sides whereupon the juror said he only wanted to know if it was necessary for all the jurors to sign the verdict, to which the judge answered in the negative and retired. Not a word was said about the case at either visit of the judge to the jury room, either by a juror or the judge, except as above stated." There was a verdict in which the issues were found in favor of the defendant W. J. Loggins. Thereupon the complainants made a motion for a new trial, upon the grounds among others, that the verdict was unauthorized under any issue in the case, and that the court had no jurisdiction to render a decree establishing a will upon which the verdict was based. The motion for the new trial was overruled, and the complainants duly excepted. There was a decree rendered establishing the will of the deceased, as is stated in the opinion, and from this decree the present appeal is prosecuted, and the very many rulings of the court to which exceptions were reserved are assigned as error.

E. W Godbey, for appellants.

Speake & Russell, for appellees.

COLEMAN J.

On the 11th day of December, 1890, William J. Loggins, the respondent, probated an instrument bearing date of February 1876, as the last will and testament of Malinda Loggins, his deceased wife. The complainants did not contest the probate of the will, and, under section 2000 of the Code of 1886, filed the present bill in chancery to contest the validity of the same. Complainants took nothing under the probated will, and would have taken nothing had deceased died intestate, they being the children of a living brother of testatrix. Complainants' rights, as shown in the bill, depend upon the establishing of a subsequent will of testatrix, bearing date of February, 1888, in which they are devisees, and which, if valid as a last will and testament, revokes the will probated by Loggins. Upon the application of the respondent Loggins, the chancery court directed that an issue be made up and tried by a jury, which was done. So far as complainant sought to contest the probated will on the grounds that the same was procured by fraud or undue influence, or that the same was not legally executed and published,-they not being beneficiaries under the will, nor heirs in case testatrix had died intestate,-the bill is without equity; and evidence to impeach the validity of the probated will could not aid the contestants, unless offered in connection with evidence sufficient to establish the will under which they claim. We are of opinion, however, that the evidence is without serious conflict that the will probated, when executed and attested, was, and was intended at that time to operate as, a last will and testament. The issue tendered by the respondents, in effect, set up the will which had been probated as the last will and testament of Malinda Loggins, duly executed and published as such, with the probate thereof. The answer of complainants to the issue tendered set up the instrument of February, 1888, made Exhibit A to the bill, and averred to be the last will and testament of Malinda Loggins, revoking all previous wills. To this answer the respondents replied, denying that Malinda Loggins ever executed any such instrument as that set up in the answer, and, by way of further replication, averred that in June, 1888, subsequent to the date of the will shown by Exhibit A to complainants' bill, Malinda Loggins executed another will, in which she revoked all previous wills, except her first will,-the one probated,-and that by this last will she reaffirmed the first will, and disposed of her property in the same manner. These were the issues presented to the jury for determination. The jury found the issue in favor of William J. Loggins, and found the last instrument, executed in June, 1888, to be the last will and testament of deceased. Upon this finding the court dismissed complainants' bill, and complainants appealed.

Numerous rulings of the court are assigned as error. Complainants contend that they should have been permitted to open and close the argument. In the case of Watson v. Turner, 89 Ala. 220, 8 So. 20, this court used the following language: "To establish a later will is necessarily to disestablish a former one already proved. The same is obviously true of a codicil, any of the provisions of which are inconsistent with those of the will itself. To prove a codicil is, pro tanto, to disprove so much of the probated will as it may revoke or modify. The distinction is one of extent, not of kind or quality. The attempt to set aside a probated will, therefore, by proving a later one, or by attaching to it a codicil with inconsistent provisions, is a contest of the validity of the former will." To the same effect is the decision in the case of Hardy v. Hardy, 26 Ala. 524. Other authorities might be cited. The uniform ruling of this court has been that when the probate of a will is contested in the chancery court, under section 2000 of the Code, those who claim under the probated will must show affirmatively its validity, and become the actors. In this state the chancery court has no jurisdiction to probate a will. The jurisdiction is conferred exclusively on the probate court. When the jurisdiction of the probate court has attached, its decree, declaring the validity of the will and admitting it to probate, is conclusive on all the world, until reversed, or unless the probate is contested in the manner and within the time prescribed by statute. The complainants had the right, under the statute, to contest the validity of the will; and when they showed by their bill the revocation of the will probated, and their interest as devisees and distributees by a subsequent will, the burden was placed upon the respondents to affirm and maintain the validity of the probated will. Complainants have no standing in the chancery court, except as contestants. The ruling of the court was in harmony with the previous decisions of this court. Johnston v. Glasscock, 2 Ala. 218; Kumpe v. Coons, 63 Ala. 448; Knox v. Paull, 95 Ala. 505, 11 So. 156; Hill v. Barge, 12 Ala. 687; Lyons v. Campbell, 88 Ala. 462, 7 So. 250; Mathews v. Forniss, 91 Ala. 157, 8 So. 661. Either party had the right to demand a jury, and, the issue having been determined by the jury, its verdict, if permitted to stand, must dominate the decree or judgment to follow. Hill v. Barge, supra; Mathews v. Forniss, supra.

The court overruled a motion for a new trial, and in this conclusion we concur. There can be no doubt that the will probated was properly executed, and, at the time it was signed by testatrix, expressed her real desire as to the disposition of her property. The circumstances detailed, of the discovery and preservation of the instrument denominated the "second will," though not impossible in their nature, partake much more of the purely fortuitous or the romantic than the probable, and we do not think a court would be justified in setting aside the verdict of a jury which rejected it as wanting in credibility. Nor are we prepared to hold that the evidence of the making of the last instrument denominated the "third will," is calculated to impress the mind with satisfactory conviction of its truth. This, however, was a question of fact, for the jury; and they, by their verdict, determined that it was the genuine, last will and testament of the testatrix. This will contains...