Snider v. Burks

• Decision Date: 16 May 1888
• Citation: 84 Ala. 53,4 So. 225
• Parties: SNIDER v. BURKS.
• Court: Alabama Supreme Court

4 So. 225

84 Ala. 53

SNIDER v. BURKS.

Supreme Court of Alabama

May 16, 1888

Appeal from probate court, Russell county; E. HERNDON GLENN, Judge.

The appellant, Mrs. Ida C. Snider, contested the probate of an instrument purporting to be the last will and testament of her brother, H. L. Tillman, deceased. The said instrument was offered for probate by the appellee, Mrs. Rosa F. Burks, who was the widow of the said Tillman. There were three grounds of contestation: (1) That the said Tillman was of unsound mind, and therefore incapable of making a valid will; (2) that undue influence was brought to bear upon and exercised over said Tillman in making and executing the said instrument; (3) that the said paper was not properly and duly executed by said Tillman. At the request of the proponent Mrs. Burks, the court gave the three following charges, to the giving of which the contestant separately excepted: (1) "That although the law requires a will to be executed in the presence of at least two witnesses, who must subscribe the same in the presence of the testator, yet it by no means follows that the testimony of these witnesses is the only evidence by which the will can be established. The jury may look to all the circumstances as shown by the evidence; and if they believe from the circumstances that the will was executed, signed by the testator, and subscribed by two witnesses, then they may find that the will was duly executed." (2) "If the jury believe from the evidence that H. L. Tillman, at the time of the execution of the will propounded, if he did execute it, was not influenced by fraud, or the exercise of any undue influence, and said testator was of sound mind and memory at the time of said execution, then no partiality, pride, caprice, or unequal distribution of his property, or his failure to provide payment of his debts, if there be such, could be regarded by them in any manner to set aside or vitiate said instrument." (3) "It is necessary to the proper execution of a will in this state that it should be signed by two witnesses in the presence of the testator, but it is not necessary that further proof of that fact be made than is sufficient to satisfy the minds of the jury as to the fact and the jury, in determining the fact as to such signing, may look at all the facts and circumstances in evidence before them, including the proof of the signatures, to determine that fact." The contestant requested the court to give each of the following charges, which the court refused to do whereupon the said contestant duly excepted to the refusal to give each of the charges, separately: (1) "In determining whether H. L. Tillman was indebted to W. L Tillman in the sum of a far greater amount than five hundred dollars, ($500,) they may look to the evidence of Berry Gibson and W. L. Tillman on that point; and if said witnesses swear to said indebtedness, and there is no evidence to the contrary, then they may find that said debt existed; and, if it did exist at the date of the paper offered as a will, then it makes no difference whether it was paid afterwards or not." (2) "The jury may look at the fact in this case, that the paper is so numerously signed by H. L. Tillman, as a peculiar and unusual fact, in deciding whether or not it is genuine." (3) "If the jury find from the evidence that H. L. Tillman executed his will in duplicate, then, if he destroyed one, the inference is that he intended to revoke it; and, if it could [not] be found after his death, the presumption is that he destroyed it." The issue was found in favor of proponent, and contestant appealed; assigning the several rulings of the court on the evidence, and the giving and refusal of the several charges, as error.

J. B. Mitchell and W. J. Samford, for appellant.

L. W. Martin, for appellee.

SOMERVILLE J

The proceeding is one seeking the probate of a will purporting to be executed by one H. L. Tillman, the validity of which was contested by the appellant. The main issue is as to the genuineness of the signature of the testator.

1. Two of the three subscribing witnesses who attested the execution of the paper were shown to be dead. When this is the case, as also where such witnesses have become incompetent to testify, or are insane, or absent from the state, it is allowed to prove the paper by evidence of a secondary nature. This may be either by proving the attestation to be in the handwriting of the deceased witness, or by proving the testator's own signature by some person who is acquainted with it. Foote v. Cobb, 18 Ala. 585; Cox v. Davis, 17 Ala. 714; Guice v. Thornton, 76 Ala. 466. The court properly permitted the signatures of the attesting witnesses, Glenn and Wicker, both of whom were deceased, to be proved by persons who knew their handwriting.

2. The court also properly refused to allow the contestant to exhibit to a witness the signatures of other papers, purporting to have been made by the subscribing witness Wicker, not in evidence in the case, for the purpose of comparison with the alleged signature of Wicker to the will, and for the purpose of determining the genuineness of the latter. Kirksey v. Kirksey, 41 Ala. 626; State v. Givens, 5 Ala. 747; 1 Greenl. Ev. § 581; 1 Whart. Ev. § 712.

3. The question is raised in this case as to whether, in a proceeding of this kind, the proponent of a will, who is a party and interested as a legatee, is a competent witness under the statute, to prove the execution of the paper. Code 1886, § 2765; Code 1876, § 3058. The case of Kumpe v. Coons, 63 Ala. 448, (decided by this court in 1879), determines this question in the affirmative, holding that a legatee or devisee under a will, who was an attesting witness to the paper, was competent to testify to its execution in any suit or proceeding in which the validity of the paper as a will may be involved. It was said that the statute put under the ban of exclusion evidence only of a particular character, viz., transactions with or statements by any deceased person whose estate is interested in the result of the suit. The controversy, which was one to determine the status of the estate of the decedent, and the condition in which he died, whether testate or intestate, was one between living parties, affecting...