Stiles v. Brown
| Decision Date | 22 February 1980 |
| Citation | 380 So.2d 792 |
| Parties | Ernest L. STILES v. Eva S. BROWN, Susie S. Sharp, John W. Stiles and Ann S. White. 78-567. |
| Court | Alabama Supreme Court |
H. Kenan Timberlake of Timberlake & Gammons, Huntsville, for appellant.
Harold F. Herring and Thomas R. Robinson of Lanier, Shaver & Herring, Huntsville, for appellees.
This is an appeal from a will contest case in which the Circuit Court of Madison County held valid and admitted to probate and record an instrument purporting to be the last will and testament of Claude L. Stiles. The facts of this case, which were stipulated by the parties, are as follows:
Claude L. Stiles, a resident of Madison County, Alabama, died on March 7, 1978, leaving no surviving spouse, three surviving children, and three surviving grandchildren who are the children of a fourth child who predeceased Claude L. Stiles. The proponents of the document sought to be admitted as the last will and testament of Claude L. Stiles are Eva Stiles Brown and Susie Stiles Sharp, the daughters of Claude L. Stiles. On May 5, 1978, Eva Stiles Brown and Susie Stiles Sharp, having been appointed co-executrices in said document, petitioned the probate court to issue to them letters testamentary. The contestant of the will offered by Eva Brown and Susie Sharp is their brother, Ernest L. Stiles, who filed a contest to said will on May 8, 1978.
The will in question was prepared for Claude L. Stiles by Mr. James T. Tatum, Jr., a Huntsville Attorney, and was executed in Mr. Tatum's office on January 12, 1967. On that date, two wills were prepared simultaneously, using carbon paper, and each will was simultaneously executed, thus creating two executed duplicate original wills. One of the duplicate originals was placed in Mr. Tatum's safe and the other Claude L. Stiles took home with him after execution of the duplicates. At that time, and again on November 5, 1975, Mr. Tatum advised Mr. Stiles that if he desired to revoke the last will and testament, he would have to destroy both the duplicate original in his own possession and the one Mr. Tatum had in his possession. The duplicate original will which Claude L. Stiles had in his possession prior to his death was not found among Mr. Stiles's possessions on his death on March 7, 1978. On or about March 24, 1978, Mr. Tatum learned of the death of Claude L. Stiles, and delivered the executed duplicate original will of Claude L. Stiles, which he had in his possession, into the custody of the Probate Court of Madison County.
The appellants argue that the trial court erred in admitting to probate this document as the valid last will and testament of Claude L. Stiles because (1) the proponents fail to account for the duplicate original will which had been in the possession of Claude L. Stiles, (2) a presumption of revocation of the original duplicate will in Claude L. Stiles's possession arises when the will is not found at the testator's death, and (3) this revocation of an original copy of a will revokes all other executed copies of the will.
When the trial court hears evidence ore tenus its judgment is presumed correct and will not be disturbed on appeal unless plainly and palpably erroneous. League v. McDonald, 355 So.2d 695 (Ala.1978). In the instant case the parties submitted an agreed statement of facts together with answers to interrogatories and affidavits, thus limiting the trial court's task to an application of the law to those facts. Where the facts of a case are uncontradicted the rule of law which states that the appellate court must defer to the trial court in regard to findings of fact has no application.
The finding of the trial court in a case submitted to it on an agreed statement of ultimate facts presents a question of law, and the appellate court, having the same means as the trial court had of reaching a correct conclusion of law on the facts will consider it as if trying the case originally in order to determine whether the facts warranted the judgment.
5A C.J.S. "Appeal and Error" § 1661 p. 580 (1958).
Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the law to those facts. Kessler v. Stough, 361 So.2d 1048 (Ala.1978); Perdue v. Roberts, 294 Ala. 194, 314 So.2d 280 (1975); and McCulloch v. Roberts, 292 Ala. 451, 296 So.2d 163 (1974).
Whether the executed duplicate original will which was retained by the testator's attorney is admissible into evidence when the other duplicate original will which had been retained by the testator himself is not found at the testator's death.
The appellant, relying on Brunson v. Brunson, 278 Ala. 131, 176 So.2d 490 (1965), contends that the proponents of the duplicate executed will must show a search for the original will left in the testator's possession or otherwise explain its absence before an executed copy in possession of the lawyer who prepared the will may be admitted to probate. We agree with the appellant. See also: Lovell v. Lovell, 270 Ala. 720, 121 So.2d 901 (1960); Jaques v. Horton, 76 Ala. 238 (1884). However, the record is replete with evidence, including interrogatories, answers thereto, and affidavits, which indicates that a careful search was made of the business records of the testator as well as his safe deposit box and that the will was not discovered in the course of that search. We hold the evidence sufficient to support the trial court's holding that the requirements of our case law for admission into evidence of a duplicate original will other than the one retained by the testator were met in the instant case. In Jaques v. Horton, supra, the Court held that the inability to find the copy of a will which had been in the testator's possession prior to his death did not give rise to a question of the admissibility of another copy of that will but rather presented a completely separate question of whether the testator had destroyed his will with an intent to revoke it.
Sufficient search appears to have been made for the original will to let in secondary evidence of its contents after proof of its execution and existence; and whether the will was destroyed by the testator animo revocandi or by someone else without his consent or knowledge or lost by accident is a question not going to the admissibility of a verified copy but a fact to be determined by the jury if there is one and if not by the judge on a consideration of all the circumstances proved. Where the will is shown to have been in the possession of the testator and is not found at his death the presumption arises that he destroyed it for the purpose of revocation; but the presumption may be rebutted and the burden of rebutting it is on the proponent. The ascertainment of this fact will cast no light on the authentication of the copy and is not preliminary to its introduction. The question, in such case, is, whether the will of which the proposed paper is a copy was revoked or did the testator at the time of 76 Ala. at 245.
his death believe and intend it to be in existence as a valid will. (Citations omitted.)
If a copy of an executed will is admissible into evidence after an adequate search, then there is all the more reason to admit a duplicate executed original will retained by a third party after an adequate search for the duplicate original retained by the testator.
Did Claude L. Stiles destroy his will animo revocandi?
In Barksdale v. Pendergrass, 294 Ala. 526, 319 So.2d 267 (1975), this Court set forth the requirements for admitting to probate an allegedly lost or destroyed will and held that the burden is on the proponent of the will to establish: (1) the existence of a will, (2) the loss or destruction of the instrument, (3) the non-revocation of the instrument and (4) the contents of the will in substance and effect. In the instant case the appellant argues that the appellees have failed to establish element number 3, i. e., the nonrevocation of the instrument by the testator. The appellant relies upon the evidentiary presumption that a testator has revoked...
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