Whitney v. Jasper Land Co.

• Decision Date: 29 October 1898
• Parties: WHITNEY ET AL. v. JASPER LAND CO. ET AL.
• Court: Alabama Supreme Court

24 So. 259

119 Ala. 497

WHITNEY ET AL. v. JASPER LAND CO. ET AL.

Supreme Court of Alabama

October 29, 1898

Appeal from probate court, Walker county; H. L. Wattington, Special Judge.

Petition by J. M. Whitney and others against the Jasper Land Company and others to substitute a lost record. There was a decree for defendants, and petitioners appeal. Affirmed.

The cause was tried by the judge without the intervention of a jury; and the appeal is from a judgment refusing the petition of the appellants.

Daniel Collier, Peyton Norvelle, and Wm. H. Smith, Jr., for appellants.

Coleman & Bankhead and T. L. Sowell, for appellees.

HARALSON J.

Proceeding by petition in the probate court of Walker county, filed therein on the 9th of January, 1897, to substitute the will of Hiram C. Whitney and the probate and record thereof in said court, alleged to have been destroyed.

The errors assigned are, first, the overruling of petitioners' demurrer to defendants' plea No. 1. That plea was, "They [the defendants] deny all the allegations contained in said petition." What the demurrer to this plea was, does not appear, but the judgment entry recites that it was overruled. This plea, certainly was not liable to any conceivable demurrer. The other assignments of error, besides the sixth and seventh, set up in different forms the same thing,-that the court erred in refusing to grant the prayer of the petition to substitute said will. The sixth and seventh assignments, relate to the admission of evidence against the petitioners.

The case was tried upon issue joined on the first plea, which issue was found in favor of appellees, defendants below.

The will was alleged to have been executed by the deceased on the 18th September, 1839, by which he gave all his personal property absolutely to his wife, Minerva Whitney, and his real estate, which is specifically described in the alleged copy of the will produced to be substituted, to his said wife, for her life, and after her death to his four children who are named, to be equally divided between them. The petition was filed by Isaac M. and E. W. Whitney, and alleges that they are the sole surviving children, heirs, devisees and legatees of the testator. What purports to be a copy of said will, and a copy of the minute entry of the probate thereof, are attached to the petition as Exhibits A and B and made a part thereof. Said copy of the record of the probate of said will, purports to have been made and entered in said court, on the 7th of December, 1839, and purports also, to have been made by one Roland J. Murphy, judge of the orphans' court of Walker county.

The case was tried on affidavits for the most part. The petitioners introduced seven of these, all made in 1891 except one, made in 1890. They examined but two witnesses orally, and introduced a showing as to what an absent witness would have sworn, if present.

The application for substitution, on demurrer thereto in the court below, was held to be sufficient. On the hearing of such an application, the court is to be satisfied from the evidence adduced of the former existence and contents of the instrument and the record of it, which is proposed to be substituted, and may receive affidavits, or any legitimate testimony, oral or written. The substitution should be made, as is held, only on clear and satisfactory evidence of the former existence, contents and loss of the record proposed to be substituted. McLendon v. Jones, 8 Ala. 298; Adkinson v. Keel, 25 Ala. 551; Pruit v. Pruit, 43 Ala. 73; Dabney v. Michell, 66 Ala. 496. It may be added that the law does not require that an ancient transaction shall be proved with such fullness of detail as if it had been of recent date. Smith v. Wert, 64 Ala. 34.

It is also well settled, that on a motion to substitute, the legal sufficiency of the record, as proposed to be substituted, to sustain the final judgment or decree that was rendered, does not arise. Whether the proceedings were regular or irregular, or whether error intervened in the proceedings ending in the judgment or decree rendered, is not to be considered. When a substantial copy of the lost or destroyed record is satisfactorily proved, it must be substituted for the original, and when substituted, it has the same effect and efficacy, no more nor less, than the original would have had. Ward v. State, 78 Ala. 455, 457; Peddy v. Street, 87 Ala. 299, 6 So. 3.

The petitioner, as has been stated, introduced without objection, the affidavits of seven persons, taken, six of them in 1891, and one of them in 1890, and examined two witnesses viva voce, and, also, the showing of an absent witness, named William A. Hewlett, admitted for the purposes of a trial.

The will sought to be substituted, purports to have been executed, as has been stated, on the 18th September, 1839 and to have been probated on the 7th of December of that year. This proceeding for the substitution of the will and the record of its probate, both alleged to have been destroyed, was not commenced until the 9th of January, 1897. It was shown that the destruction of the court house of Walker county, where it is alleged and shown the original will and the record of its probate were destroyed, was occasioned by fire in a year, some time in the 70's. After such a great lapse of time, the difficulty of procuring evidence of the existence and contents of the will and the record of its probate, has been very greatly enhanced. This difficulty has been brought about, by the delay and fault of those interested in such a substitution, if they desired it, from which they are entitled to no credit, certainly as against those adversely interested in the proceeding, who contributed nothing to induce such delay, and to whose fault, in any respect, any earlier effort of petitioners to substitute is not...