Torrey v. Burney

Citation113 Ala. 496,21 So. 348
PartiesTORREY v. BURNEY.
Decision Date07 January 1897
CourtSupreme Court of Alabama

Appeal from probate court, Jefferson county; M. T. Porter, Judge.

Contest by Henry W. Torrey of the alleged will of Samuel Torrey deceased, offered for probate by W. T. Burney. From a judgment against him, contestant appeals. Reversed.

On September 22, 1891, the appellee, W. T. Burney, filed a petition in the probate court of Jefferson county asking for the probate of an instrument in writing purporting to be the last will and testament of Samuel Torrey, deceased. On October 26, 1891, the day set for the hearing of said petition, the appellant, Henry W. Torrey, the only son and child of Samuel Torrey, instituted a contest of said will upon the following grounds: (1) Because said instrument offered for probate was not executed as required by law. (2) Because the execution of said alleged will was procured by fraud or undue influence. (3) Because, at the time of the execution of said alleged will, Samuel Torrey was of unsound mind. Upon this contest the proceedings in the present case were had. The will of Samuel Torrey, which was offered for probate, devised all of his property to his wife, Jane E Torrey, and disinherited his son, the contestant. On the trial of the cause, the proponent proved the proper execution of the will offered for probate, and the same was allowed in evidence. The contestant introduced evidence tending to show that, at the time of the execution of the instrument, Samuel Torrey was of unsound mind, caused by softening of the brain and was therefore incapable of making a valid will. The testimony of the contestant further showed that he had two children, of whom the testator was very fond, and that during the testator's life he had amply provided for his wife. The proponent, in rebuttal, offered testimony to show that the deceased was of sound mind when he executed the will, and was not unduly influenced.

At the time of the trial of the cause, from a judgment in which the present appeal is taken, one of the witnesses on the former trial (W. W. Burney) was dead, and two of the other witnesses (Harry Beach and L. M. Carr) were nonresidents and beyond the jurisdiction of the court, and were not present. For the purpose of proving the testimony of these witnesses as given at the former trial, the proponent introduced James E. Webb who testified that he was of counsel for proponent in the present case, had been present at two or three previous trials of this same case, and heard the witnesses above referred to testify; that he remembered substantially all of such witnesses' testimony, without any reference to any paper, although he could not, from memory, repeat everything the witnesses testified on the previous trial; that his recollection was an independent recollection, though it had been refreshed by reading the stenographic report of said witnesses' testimony as set out in the bill of exceptions, which he, together with one of his associate counsel, had made immediately after the former trial preparatory to taking an appeal in the case; that, in the preparation of this bill of exceptions, he and his associate went over the testimony of the several witnesses as they prepared it, to see that it was correct. Thereupon the proponent asked the witness Webb to state what the said witnesses had testified to at the former trial. The contestant objected to this question, upon the ground that the evidence showed that the witness was incompetent, in that he had no independent recollection of the substance of all the testimony of said witnesses, but that his recollection was refreshed from memoranda not made by him at the time, and not known by him to be full, correct, and accurate. The court overruled the objection, and allowed the witness to testify as to what was the testimony of said witness at the former trial. To this ruling of the court the defendant duly excepted. The witness then read from said bill of exceptions the testimony of the witnesses. The contestant objected to this witness' reading from the bill of exceptions. The court overruled the objection, and the defendant duly excepted. The bill of exceptions stated that "B. F Roden, a witness for contestant, after stating a great many facts upon which he based his opinion that the testator was of unsound mind, such as rambling conversation, jumping from one subject to another, without finishing the former, inability to carry on a long conversation or to carry the thread of the conversation, idiotic laugh, and stating that his conduct, actions, and conversation were entirely different from what they were prior to a stroke of paralysis with which testator had been afflicted in June, 1890, was asked by the contestant whether or not, in his opinion, Mr. Torrey, about the time he made said alleged will, was capable of transacting ordinary business." To this question proponent objected, on the ground that it called for a conclusion. The court sustained the objection, to which ruling of the court the contestant then and there duly excepted. The same witness, Roden, on cross-examination, was asked by proponent what was the present cash value of each of the pieces of property belonging to the estate of the testator, the competency of witness as to real-estate values having first been shown, no inquiry having been made as to the value of said property at the time of making said alleged will. Contestant objected to the question, on the ground that the present value of the property was irrelevant and immaterial; that the question of the value of the property should be confined to the time of the making of said will. The proponent stated that the testimony was offered in anticipation of testimony as to value of property, which was afterwards offered by contestant. The court overruled said objection, and stated that he admitted it only to be considered by the jury in determining what was the value at the time of making the will, as evidence throwing light on it, and the contestant duly excepted. The witness then answered the question, giving the present cash value of the separate pieces of property. Contestant thereupon moved the court to exclude the answers, which motion the court overruled, and the contestant then and there duly excepted to the action of the court in overruling said motion. E. W. Mackey, a witness for proponent, testified that in the year 1881 he received, in a letter from Tennessee, a newspaper clipping, which he had shown to testator. It was shown that this clipping was in the hands of proponent at one of the former trials, and had since been lost or mislaid, but no proof was made that diligent search had been made for it, and its absence was not accounted for. Witness was asked to give the substance of said newspaper clipping. Contestant objected to this question, on the ground that the original clipping itself was the best evidence of its contents, and that its absence was not accounted for, and no proof of diligent search for the same had been offered. The court overruled the objection, and to said ruling the contestant excepted. The witness then stated that the substance of the clipping was that one H. W. Torrey had abandoned his wife and family at Cullman, Ala., and gone to Brownsville, Tenn., and had there married one Sallie Sheffield, and that he had then left her for parts unknown; that it was not known whether he had gone to wife No. 1, or had gone to get wife No. 3. Contestant thereupon moved to exclude said answer,...

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54 cases
  • Davis v. State
    • United States
    • Alabama Court of Appeals
    • June 27, 1913
    ... ... but of all doubt and uncertainty; hence, as said, the given ... charge was more favorable to defendant. See Torrey v ... Burney, 113 Ala. 504, 21 So. 348; Bones v ... State, 117 Ala. 138, 23 So. 138; Prince v ... State, 100 Ala. 146, 14 So. 409, 46 ... ...
  • Durlacher v. Frazer
    • United States
    • Wyoming Supreme Court
    • December 17, 1898
    ... ... be proven to the satisfaction of the jury. ( Ry. & Nav ... Co. v. Onsley (Wash), 13 P. 186; Torrey v ... Burney, 21 So. 348; Wolf v. Van Housen, 55 ... Ill.App. 295; 56 id., 558; Fordice v. Chancey (Tex.), 21 S.W ... 181; 16 S.E. 845; 19 ... ...
  • Howton v. Mathias
    • United States
    • Alabama Supreme Court
    • November 16, 1916
    ...the value may be fixed at the highest price between the conversion and the trial. Jones v. White, 189 Ala. 622, 66 So. 605; Torrey v. Burney, 113 Ala. 496, 21 So. 348. "Under certain conditions he may recover more than amount." Boutwell v. Parker, 124 Ala. 341, 27 So. 309; Linam v. Reeves, ......
  • State v. Riordan
    • United States
    • North Dakota Supreme Court
    • January 22, 1916
    ... ... Com. v. Colandro, 231 Pa. 343, 80 A. 571; ... Western Cottage Piano & Organ Co. v. Anderson, 45 ... Tex. Civ. App. 513, 101 S.W. 1065; Torrey v. Burney, ... 113 Ala. 496, 21 So. 351; Wilcoxin v. Com. 138 Ky ... 846, 129 S.W. 310; Cleveland, C. C. & St. L. R. Co. v. Best, ... 169 Ill ... ...
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