Stuck v. Howard

• Decision Date: 14 May 1925
• Docket Number: 2 Div. 870
• Citation: 104 So. 500,213 Ala. 184
• Parties: STUCK et al. v. HOWARD.
• Court: Alabama Supreme Court

104 So. 500

213 Ala. 184

STUCK et al. v. HOWARD.

2 Div. 870

Supreme Court of Alabama

May 14, 1925

Appeal from Probate Court, Hale County; D.B. Borden, Judge.

Application of Pearl Howard, to probate an instrument as the last will of R.N. Ervin, deceased, and contest by Elizabeth Stuck and others.From a decree for proponent, contestants, appeal.Reversed and remanded.

Craig &amp Craig and Craig & Brown, all of Selma, for appellants.

Thos E. Knight and A.M. Tunstall, both of Greensboro, and Jones Jones & Van de Graaff, of Tuscaloosa, for appellee.

This case was submitted under Supreme Courtrule 46, and the opinion of the court was prepared by Mr. Justice MILLER:

This is a contest of an application to probate an instrument as the last will and testament of R.N. Ervin, who died on March 27 1924, an inhabitant of Hale county, Ala.He had about reached in age the three score years and ten.Pearl Howard, his cousin, named as executrix and as a devisee in the instrument, makes this application to have it probated.Elizabeth Stuck and others, next of kin of decedent, instituted this contest.The grounds of contest were: The proposed instrument is not the will of R.N. Ervin; it was not executed by R.N. Ervin as provided by law; it was not attested; it was not signed by R.N. Ervin and his signature attested by two witnesses, as required by law.

The issue was tried in the probate court by a jury They returned a verdict in favor of the proponent; and, from a judgment thereon by the court, this appeal is prosecuted by the contestants.

That part of our statute(section 6172,Code 1907, andsection 10598,Code 1923), applicable to the different phases of the testimony introduced on the issues in this contest, reads as follows:

"No will is effectual to pass real or personal property *** unless the same is in writing, signed by the testator *** and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator."

This instrument, offered for probate as a will, to be effectual to pass real or personal property must comply with this statute, and, in order to do so, it must be (1) in writing; (2) signed by the testator, R.N. Ervin; (3) at least two witnesses must subscribe their names thereto in the presence of the testator; and (4) each of these subscribing witnesses must attest the signing of the instrument by the testator.

Is this will in writing?Writing includes printing on paper; and writing includes part writing and part printing or part typewritten and part written.Section 1,Code 1907;Johnson v. State,69 Ala. 593.The original instrument is before us.This entire instrument in its body is typewritten, except the date--the day of signing.R.N. Ervin requested and instructed his attorney to prepare it, and the attorney complied with his request, under his instructions, and it was mailed to him by his said attorney with letter as to how it should be executed.The court properly permitted C.P. Johnson to testify "that R.N. Ervin told me to put the day of the month there, and the '30th' was put there by me in my handwriting at Mr. Ervin's request."This filled in the blank place in ink in the instrument.This testimony was relevant.It tended to show a completion of it for signing at testator's request, and tends to identify the instrument offered for probate.Barnewall v. Murrell,108 Ala. 375, 380, 18 So. 831;Woodroof v. Hundley,133 Ala. 395, 32 So. 570.The evidence without conflict shows the instrument is partly typewritten and partly written, which complies with the first requisite of the statute that it must be in writing.

Was this written instrument signed by R.N. Ervin, the testator?Did he write his name on it?This is the second requisite of the statute as applicable to this contest.This same witness (Johnson) was allowed, without error, by the court to testify that, after he inserted the figures and letters "30th" in the instrument, "Mr. Ervin [the testator] took my fountain pen and signed his name thereto [meaning this instrument].Yes, sir; he signed his name.I saw him sign his name."Johnson was an attesting, but not a subscribing, witness to the signing of the will by the testator.He saw R.N. Ervin write his name to the instrument, but he did not subscribe his name to the instrument as a witness.The court without error permitted the proponent to show by other witnesses that they knew the handwriting and signature of R.N. Ervin, and that his name appearing on this instrument was in his genuine handwriting and signature.The names of F.L. Allen, and B.L. Allen, Jr., appear on the instrument as subscribing witnesses.They had each previously testified their names were written by them, respectively, on this instrument, and each also testified that he did not see R.N. Ervin sign his name to it, and did not see his name on it, and Ervin did not acknowledge to them that he had signed his name on it.This testimony of these two witnesses made it clearly competent and relevant, and probably necessary for the proponent to prove by Johnson that he saw the testator sign this instrument, and by others that his name as written thereon was his genuine signature in his handwriting.The signing of the will by the testator may be proven by facts and circumstances other than the testimony of the two witnesses who sign their names to it as witnesses.Allen v. Scruggs,190 Ala. 654, 67 So. 301;Ritchie v. Jones,210 Ala. 205, 97 So. 736;Woodruff v. Hundley,127 Ala. 640, 29 So. 98, 85 Am.St.Rep. 145;Barnewall v. Murrell,108 Ala. 381, 18 So. 831.It is evident and without dispute from the testimony of Johnson and others, that the testator signed this will, and did so before the names of the two witnesses mentioned subscribed their names to the instrument.The second requisite of the statute--that the will must be signed by the testator--was complied with and fully proven by the evidence.

Was there proof to sustain the third requisite of the statute?To do so, there must be at least two witnesses, who must subscribe their names to the will in the presence of the testator.Did two witnesses write their names--subscribe their names--to this will in the presence of the testator?There are two names, F.L. Allen and B.L. Allen, Jr., written on the will.Each of these men was examined, and each admitted, testified, that he subscribed his name on this instrument.Each did it at the request of the testator, and each signed his name on it in the presence of the testator.Their names were written by them respectively on this instrument underneath the following typewritten words: "Executed in the presence of."Each wrote his name there on the dotted line in the presence of the testator.Yet they testified they did not see these words or any words or writing on it.No testimony indicates they could not see.It does not appear that either was blind.The name of each was written underneath those words, and each wrote his own name.One name appears less than one-eighth of an inch, and the other less than three-fourths of an inch from those words.The jury, from the evidence and the instrument, the will, could reasonably infer and conclude that there was a compliance with this third requisite of the statute that the two witnesses (F.L. Allen and B.L. Allen, Jr.) subscribed their names to this instrument as witnesses in the presence of the testator.Barnewall v. Murrell,108 Ala. 366, 18 So. 831;Riley v. Riley,36 Ala. 496;Elston v. Price,210 Ala. 579, 98 So. 573;Massey v. Reynolds,104 So. 494.

Did the proponent meet by proof the fourth requisite of the statute?Did each of these subscribing witnesses to the will attest the signing of the will by the testator?As heretofore shown, there was evidence indicating that these two persons were each subscribing witnesses to the will; each signed his name to it in the presence of the testator; but was each of them an attesting witness to the signing of the will by the testator?This is the fourth requisite of the statute.In order for each of these witnesses to attest the signing of this will by the testator, each must see the testator sign his name on it, or each must see the testator's name on it, and have his acknowledgment that he signed it before or at the time the witnesses subscribed their names to it.Elston v. Price,210 Ala. 579, 98 So. 573;Ritchey v. Jones,210 Ala. 204, 97 So. 736;Massey v. Reynolds,104 So. 494.

It is clear, from the evidence heretofore shown, that the testator signed the instrument at his home before going to see the two witnesses.Did these two witnesses each see his name to the will, and have his acknowledgment that he signed it before or at the time it was subscribed to by each of them?This proof was necessary, as they did not see the testator sign it.Proof of acknowledgment by the testator to the subscribing witnesses of his signing the instrument may be made and shown by, or inferred from, his words to them, his acts, his conduct, and the circumstances surrounding them and him at the time of the subscribing.No formal words or acts are necessary.The testator must make known in some manner to them that it was signed by him--that his name appearing on it was signed by him.Elston v. Price,210 Ala. 579, 98 So. 573;Massey v. Reynolds,104 So. 494;Nelson v. McGriffert, 3 Barb.Ch. 158, 49 Am.Dec. 170;Wright v. Sanderson, 9 L.R.P.D. 149;In re Herring's Will,152 N.C. 258, 67 S.E. 570; and authorities supra.

If these two subscribing witnesses were dead, then this will could be proved "by the proof of the handwriting of the testator, and that of at least one of the witnesses to the will."Sections 6185and6186,Code 1907;Riley v Riley,36 Ala. 496.But they are alive.They were each examined.They each testify, in...