Reynolds v. Massey

• Decision Date: 31 January 1929
• Docket Number: 6 Div. 21.
• Citation: 122 So. 29,219 Ala. 265
• Parties: REYNOLDS ET AL. v. MASSEY ET AL.
• Court: Alabama Supreme Court

122 So. 29

219 Ala. 265

REYNOLDS ET AL. v. MASSEY ET AL.

6 Div. 21.

Supreme Court of Alabama

January 31, 1929

Rehearing Denied May 2, 1929.

Appeal from Probate Court, Jefferson County; N. A. Graham, Special Judge.

Petition of R. F. Massey and W. B. Baker to probate the will of Isham Eastis, deceased, contested by Mary Reynolds, David E Eastis, Mrs. Jessie Tucker, Mrs. Alice Watkins, and William D. Sims. From a decree for proponents, contestants appeal. Reversed and remanded.

See also, 213 Ala. 178, 104 So. 494; 215 Ala. 402, 110 So. 705.

Party having burden of proof, who makes prima facie case, is entitled to affirmative charge, where no countervailing evidence is offered.

The following charges were given for proponents:

(1) "When a person writes his name as witness to a will, at the request of the testator, and in his presence, under the word 'witness,' or other equivalent phrase, he impliedly certifies thereby that he saw the testator sign his name to the instrument, or that he saw the name of the testator on it and the testator acknowledged that it was his signature."

(3) "Under the law I charge you that the will introduced in evidence in the case at bar appears regular, properly executed and duly attested, on its face, as required by the statute."

(7) "I charge you that when the proponents offered evidence showing that the will in this case was entirely in the handwriting of the testator, except the signatures of the two witnesses, and that it was signed by the testator, and that two persons subscribed their respective names to it, as witnesses, in the presence of the testator, as witnesses to his will, this proof made out a prima facie case and and prima facie entitled the will to probate, as the last will and testament of Isham Eastis."

(8) "The court charges the jury that the jury in considering and deciding the issue as to whether or not the will was properly executed the court instructs the jury to remember and follow the following rule, viz.: 'If any theory consistent with the validity of the will can be suggested which appears to the jury to be as probable as the theory, on which the argument for the invalidity is based, the will as found must be maintained."

(12) "If the jury are reasonably satisfied from the evidence that the paper offered as the last will and testament of Isham Eastis, deceased, is all in the handwriting of Isham Eastis, except the names of the two persons purporting to be signed as witnesses and further that the names of Isham Eastis appear on said paper in his own handwriting twice at the bottom of said paper, and further that the names of said two persons purporting to be witnesses are subscribed in their respective handwriting on said paper under the word 'witness' and further that each of said persons testified in this cause that Isham Eastis called each of them to witness his will and that they each subscribed their names to said paper in the presence of said Isham Eastis, and in the presence of each other, the jury having said paper before it may infer from such evidence, reasonably, that each subscribing witness saw the testator sign his name to the instrument, or that each of them saw his name on it, and that he acknowledged to them that it was his signature before or at the time they wrote their names on it as subscribing witnesses."

(2-A) "The court charges the jury that the acknowledgment of his signature by the testator, if any, does not have to be in any particular form, but may be inferred from his acts or from the circumstances in evidence in this case, surrounding the signing by the subscribing witnesses." The charge in question is as follows:

(3-A) "The court charges the jury that if they are reasonably satisfied from the evidence that Isham Eastis signed the paper offered for probate, then called the subscribing witnesses and requested them to sign his will as witnesses and they did so, and at such time his signature was seen by the subscribing witnesses, then this might be a sufficient acknowledgment of the signature, if any."

(2) "Notwithstanding the subscribing witnesses may all swear that the will was not properly executed, the jury may look to surrounding circumstances, and if they are reasonably satisfied from such evidence that the will was properly executed, they are authorized to probate same."

(4) "While the burden of proof is upon proponents to make out their case as charged by the court, yet the court further charges you, that if you believe the evidence the proponents did make out a prima facie case and that thereafter the burden of proof was upon the contestants to overcome such prima facie case to the reasonable satisfaction of the jury."

(B) "The court charges the jury that there is no evidence in this case that Isham Eastis was of unsound mind at any time nor that anybody had any undue influence upon him in reference to the execution of the paper introduced in evidence purporting to be his last will and testament. The court further charges you that if you believe the evidence in this case plaintiffs, the proponents, have made out a prima facie case of the due execution of said paper as the last will and testament of Isham Eastis, deceased, and the court further charges the jury that if they are reasonably satisfied from the evidence that the said paper was duly executed and witnessed then the jury must find for plaintiff and in favor of the will."

Anderson, C.J., and Sayre, Gardner, and Brown, JJ., dissenting in part.

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

Harsh & Harsh, of Birmingham, for appellees.

BROWN J.

This is the third appeal in this case. As will appear from the reports of the former appeals, the purpose of the proceeding is to probate the alleged will of Isham Eastis, deceased, propounded for probate by the appellees, and contested by appellants on the ground that the will was not executed in conformity with the statute, Code of 1923, § 10598.

It appears from the record, and is conceded in argument, that contestants offered no evidence, and that the issue was submitted and determined on the evidence adduced by the proponents. The first two trials resulted in denying the petition for probate. On the last trial the issue was determined in favor of the proponents, followed by a decree of the court admitting the will to probate.

It is not controverted that the evidence adduced on the last trial is, in substance, the same as that offered on the former trials. On the first appeal, it was held that "the burden of proof, in order to make out a prima facie case, rested on the proponent to offer some testimony showing the will was in writing, that it was signed by the testator, and that two persons subscribed their respective names to it as witnesses in the presence of the testator under the word 'witness.' This proof was clearly made by the proponent, which made out a plain prima facie case, and it entitled the instrument to be, not only introduced in evidence, but admitted to probate, unless the contestants then by evidence can satisfy the court or jury that the testator had not signed the instrument when the two witnesses subscribed their names to it, or, if he had then signed it, that each subscribing witness did not attest it; that is, each witness did not see him sign it, and each witness did not see the name of the testator on the instrument and have his acknowledgment that it was his signature before or at the time it was subscribed to by each of them. *** No particular form of words of the testator is necessary in his acknowledgment to the subscribing witnesses that the name on the instrument is his signature. It may appear to them and be proved by his words, or by his acts, or by the circumstances surrounding him and them at the time of the subscribing, or it may appear to them and be proved by a combination of all three-his words, his acts, and the circumstances surrounding them. *** The proponents met this burden of proof, made out a prima facie case as to the due execution of the instrument by the decedent as his last will and testament, and the court erred in not admitting it in evidence. *** This court cannot discuss and determine from this evidence whether the will should be admitted to probate or not, because the bill of exceptions fails to state it contains all, or the substance of all, of the evidence before the trial court. All of the evidence is not before us. This cause was heard by the probate court without a jury, and, when the bill of exceptions does not purport to set out all or the substance of all the evidence, this court cannot review and revise the trial court on the facts, but will presume on appeal that there was sufficient evidence to sustain the decree rendered." (Italics supplied.) Massey et al. v. Reynolds et al., 213 Ala. 178, 104 So. 494.

The second trial was by jury, and the proponents requested, and the court refused, charge C in the following words: "While the burden of proof is upon the proponents to make out their case, as charged by the court, yet the court further charges you that, if you believe the evidence, the proponent did make out a prima facie case, and that thereafter the burden of proof was upon the contestants to overcome such prima facie case to the reasonable satisfaction of the jury."

On the second appeal it was here held that charge C, and others of like import, were erroneously refused. In the same opinion charges given at the request of the contestants, submitting to the jury the question whether or not the name of Eastis was on the document when it was subscribed by the witnesses, and by him acknowledged to be his signature, were approved, and charge B, requested by the proponents, was held to be properly refused,...