Skeggs v. Horton

• Decision Date: 03 February 1887
• Citation: 82 Ala. 352,2 So. 110
• Court: Alabama Supreme Court
• Parties: SKEGGS, ADM'R, v. HORTON AND OTHERS.

2 So. 110

82 Ala. 352

SKEGGS, ADM'R, v. HORTON AND OTHERS.

Supreme Court of Alabama

February 3, 1887

Appeal from probate court, Morgan county.

Contested probate of will.

On July 18, 1883, Mrs. R. D. Horton filed her petition in the probate court of Morgan county, seeking to probate a paper which was propounded as a copy of the last will and testament of Jacob Y. Cantwell, deceased, who died in said county about February 11, 1883, leaving assets therein. Said Mrs. Horton was a neice of said decedent, to whom certain real estate was devised by the will. This application for probate was contested by Mrs. Margaret Jaques, who was a sister of said decedent. The case, as made by this petition, was heard in the lower court, and an appeal taken to the supreme court from the judgment there rendered, where the case was reversed and remanded. 76 Ala. 238. Upon the remandment of the cause the death of Mrs. Jaques was suggested, and the cause was revived in the name of her administrator ad litem, one William E. Skeggs. The original petition was amended so as to assert that the said will had been lost or mislaid, so that the same cannot now be produced. The said contestant having requested that the cause be submitted to a jury, it was so ordered. The grounds alleged for the contest of said will were (1) because the said paper, purporting to be the will of said Cantwell, was not in fact the last will and testament of said Cantwell; (2) because said supposed will was not duly executed; (3) because the instrument offered for probate is but an abstract of an original will, if one in fact was ever made, and that the original was revoked, and canceled by the said Cantwell during his life-time; (4) because said alleged will, if in fact ever executed, was revoked and canceled by said Cantwell in his life-time.

Upon the hearing of the cause, on September 12, 1885, the issues were submitted to a jury, who found in favor of the proponents as to the issues raised, setting out in their verdict the said will substantially, and the judgment of the court was rendered accordingly. The said will so found by the jury, was: "A devise to Mrs. Rachel D. Horton, the niece of said testator, of the following described real estate situate in the county of Morgan, state of Alabama, known as the 'Bank Building,' in the town of Decatur, in said county; also the room adjoining, occupied by said Rachel D as a millinery store, at the death of said testator, and the post-office building adjoining said millinery store, together with the lots on which said buildings are situated and thereto appertaining, and a bequest to her of the personal property in said bank building; also a devise to Roy Horton minor son of said Rachel D. Horton, of the building in the said town of Decatur adjoining the said post-office building occupied as a drug store by Littlejohn & Banks, at the death of the testator, together with the lot on which said building is situated, and thereto appertaining; also a bequest of two hundred dollars to Mrs. Margaret Jaques, the sister of said testator; also a bequest of three hundred dollars to Mrs. Jane Scott, the sister of said testator; also a devise and bequest of the rest and residue of the estate, real and personal, of said testator, to his nephew Thomas J. Cantwell. By said will the said Thomas J. Cantwell was nominated and appointed executor thereof."

On the hearing, as the bill of exceptions states, the proponents introduced one H. G. Thomas as a witness, who, after testifying to his acquaintance and intimacy with said decedent, the proponents' relationship with him, and the death, stated that he "attested a will for Dr. Cantwell between fifth and twentieth of December, 1880. It was written by Dr. Cantwell, at witness' desk, in the post-office, at several writings, and on two different days. Dr. Cantwell wrote a part one day, left it on witness' desk, and finished it the next day; called upon the witness to attest it as his will. Both subscribed their names in each other's presence." The witness further testified as to his reading the will, of keeping it for some time, and then delivering it to Dr. Cantwell, of the latter's death, and of the unavailing search for the will. The said witness testified to the provisions of said will substantially as found by the jury, and that "it gave to some one in Iowa, whose name is not remembered, five hundred dollars." Many other witnesses were examined, and their testimony is not material to the points decided by the court.

The proponents asked the court to give the following charges in writing, which the court did, and to this action, of the court the contestants separately excepted. "(2) In determining the question of the execution and contents of the alleged will, and whether or not it was unrevoked, the jury should considered what the contents of the supposed will was, as testified to by the witness Thomas, and whether, from the evidence in the case of the conduct and declaration of Dr. Cantwell, it is probate he would have made such a disposition of his property by will, and, if they conclude that he would, then this is a circumstance which the jury should consider favorable to the parties seeking to set up the will." "(11) If the jury believe, from all the evidence in the case, that Dr. Cantwell executed, with legal formalities required by the law of Alabama, a will, and that he thereby bequeathed to Mrs. Scott and Mrs. Jaques each, the special bequests stated by the witness Thomas in his testimony, and to Mrs. Horton and her son Roy the special devises and bequests stated by said witness Thomas, and making Thomas J. Cantwell the residuary legatee and devisee of his estate, and the executor thereof, and that this will was unrevoked at his death, this would authorize the jury to find for proponents, although they may believe there was a bequest in the will of five hundred dollars to some person whose name is not known or shown by the evidence.

The contestants duly asked the following charges, but they were refused by the court, and an exception duly refused thereto "(4) Unless the evidence of the contents of the alleged will is clear and positive, not vague or uncertain recollections, and of such a character as to leave no reasonable doubt as to any of the substantial parts of the paper, the jury should find for the contestants." "(6) The declaration of Dr. J. Y. Cantwell, to Dr. Mitchell, to Mrs. and Mr. Hartzman, in Iowa, and to Mrs. Davis, in New York, can be looked to by the jury to sustain the presumption of revocation of the alleged will; and his declarations to Dr. William J. Young, Tim Moseley, and others, in Alabama, can be looked to by the jury to rebut the presumption of such revocation, but are not competent evidence of the contents of the alleged will." "(12) If the jury believe from the evidence that there was a bequest in the alleged will of ...