Whitt v. Forbes

• Decision Date: 26 February 1953
• Docket Number: 8 Div. 685
• Parties: WHITT et al. v. FORBES et al.
• Court: Alabama Supreme Court

Page 77

64 So.2d 77

258 Ala. 580

WHITT et al. v. FORBES et al.

8 Div. 685.

Supreme Court of Alabama.

Feb. 26, 1953.

Rehearing Denied March 26, 1953.

Woodroof & Woodroof, Thos. S. Woodroof and Jas. W. Woodroof, Athens, for appellants.

Malone & Malone, W. W. Malone, W. W. Malone, Jr., and Paul T. Gish, Jr., Athens, for appellees. The following charges were refused to proponents:

'23. The law treats the right of testamentary dispositions with great kindness; if questioned, it must be on strong grounds.'

'27. I charge you, that when the proponents offered evidence showing that the will in this case was entirely in the handwriting of the testator, except the signatures of the two witnesses and that it was signed by the testator, and that two persons subscribed their respective names to it, as witnesses, in the presence of the testator, as witnesses to his will, this proof made out a prima facie case and prima facie entitles the will to probate, as the last will and testament of E. W. Whitt.'

'39. I charge you, Gentlemen of the Jury, that a person of sound mind and over the age of twenty-one years has a right under the law to dispose of his property as he wishes and although some of his children may not have been devised as much property as other children that is a matter entirely for the testator himself, as the property he is devising is his own to do with as he sees proper.'

'40. I charge you, Gentlemen of the Jury, if you are reasonably satisfied from the evidence in this case that E. W. Whitt was over twenty-one years of age and a person of sound mind at the time he executed the instrument offered for probate in this cause, then I further charge you, Gentlemen of the Jury, that as a matter of law E. W. Whitt had the right to dispose of his property in any way that he so desired and the disposition of his property by will was purely a matter for him to determine.'

These charges were given for contestants:

'B. I charge you, Gentlemen of the Jury, that in order that the will of the said E. W. Whitt might be valid and entitled to probate, it must comply with the following requirements: It must be in writing, signed by the testator or some person in his presence and by his direction, and attested by at least two witnesses who must subscribe their names thereto in the presence of the testator.'

'F. I charge you, Gentlemen of the jury, if you are reasonably satisfied from the evidence that at the time the Witness, Buckner, and the witness, Eisenman, signed their names to the alleged will of the said E. W. Whitt, that testator's name did not appear on said document, and if you are satisfied from the evidence that the name, E. W. Whitt, was written or printed on said document thereafter, then I charge you that the document propounded for probate as and for the will of the said E. W. Whitt was not legally executed as required by law and your verdict should be for the contestants.'

'L. The Court charges the jury that if you are reasonably satisfied from the evidence that at the time the said witnesses signed their names to the alleged will the name E. W. Whitt did not appear or was not written on the alleged will, then I Charge you that the will was not properly executed and was in fact no will and your verdict should be for the contestants.'

LAWSON, Justice.

E. W. Whitt died on or about June 10, 1952, when he was approximately sixty years of age. He was survived by his widow, three sons and four daughters.

The sons filed a petition in the probate court of Limestone County to probate the alleged last will and testament of their father, wherein the sons were named as the principal beneficiaries and were nominated as executors.

The daughters of deceased filed a contest in accordance with the provisions of § 52, Title 61, Code 1940. On their motion the cause was transferred to the circuit court of Limestone County, § 63, Title 61, Code 1940, as amended. Jury trial was requested. Issues between the parties were made up in the circuit court.

The contest was rested on three grounds: (1) the instrument was not duly executed; (2) undue influence on the part of the proponents; and (3) that the deceased did not have testamentary capacity to make a will at the time it was allegedly made.

The case went to the jury on only one ground of contest, namely, the execution of the will. The trial court gave at the request of proponents the general affirmative charge with hypothesis as to the other two grounds of contest.

The jury decided for contestants. Respondents filed their motion for new trial, which was overruled. They have appealed to this court.

It is contended that the trial court erred in not giving, at the request of proponents, the general affirmative charge with hypothesis on the issue of due execution of the will. Section 24, Title 61, Code 1940, provides that 'No will is effectual to pass real or personal property, except in the cases hereinafter provided for, unless the same is in writing signed by the testator or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator,' and § 39, Title 61, Code 1940, provides: 'Wills offered for probate, except nuncupative wills, must be proved by one or more of the subscribing witnesses, or if they be dead, insane, or out of the state, or have become incompetent since the attestation, then by the proof of the handwriting of the testator, and that of at least one of the witnesses to the will. Where no contest is filed, the testimony of only one attesting witness is sufficient.'

Section 39, Title 61, supra, recognizes a rule of ancient origin which is seemingly grounded in the law of evidence, which makes the testimony of the subscribing witnesses the best evidence of its due execution and attestation, and where their evidence is available requires that they be called to prove the execution of wills offered for probate. Reynolds v. Massey, 219 Ala. 265, 122 So. 29.

In will contests the burden of proving due execution of the will is on proponent. Little v. Sugg, 243 Ala. 196, 8 So.2d 866; Reynolds v. Massey, supra.

It is without dispute that the instrument offered for probate is in writing--every word of it in the handwriting of the deceased except the names of the witnesses Jack Buckner and Otto Eisenman. The name of the deceased appears near the bottom of the instrument, but somewhat on the left margin of the page. The last paragraph of the instrument reads: 'Signed sealed and declared by the said E. W. Whitt as his last will and testament in the presence of us who at his request and in his presence and in the presence of each other, here subscribe names as witnesses.' Then follow the names Jack Buckner and Otto Eisenman. Buckner and Eisenman testified that they wrote their names there in the presence of deceased. They were not called upon to testify that they signed their names in the presence of each other. Fulks v. Green, 246 Ala. 392, 20 So.2d 787.

It appears, therefore, that the instrument was in writing. It was signed by the deceased. Two witnesses wrote their names--subscribed their names--on the instrument in the presence of the testator. These facts appear in the evidence without any conflict or contrary inference.

The remaining requisite of the statute, § 24, Title 61, supra, is that the subscribing witnesses attest the signing of the instrument by the deceased.

In Elston v. Price, 210 Ala. 579, 581, 98 So. 573, 574, this court quoted approvingly from Tilton v. Daniels, 79 N.H. 368, 109 A. 145, 8 A.L.R. 1073, that "To attest the signature means to take note mentally that the signature exists as a fact."

In Reynolds v. Massey, 219 Ala. 265, 122 So. 29, 34, we said:

'The uniform construction and application of the statute, Code of 1923, § 10598 [§ 24, Title 61, Code 1940], by the decisions here, is that, to constitute an efficacious attestation of a will, what is intended by the testator to operate as a signing by him, in completion of the document whether written in its face by the testator or some person in his presence, and by his direction, or affixed at the foot thereof by mere mark or subscription, must either be done in the presence of the subscribing witnesses, or to them acknowledged as his act, by expressed words or necessary implication from his conduct, at the time of its attestation and subscription by the witnesses.' (Emphasis supplied.)

We come now to a consideration of the evidence as it bears on the question of attestation. The only witnesses who testified in that connection were Buckner and Eisenman. On direct examination Eisenman testified that he signed the instrument at the request of the deceased, who told him 'he had a paper that he wanted me to sign showing that he was in his right mind.' On cross-examination he first stated he did not remember seeing the deceased's signature on the instrument at the time he signed it nor did he remember the deceased's telling him that he had signed the instrument. On further cross-examination he stated positively that he did not see deceased's name on the instrument and that he didn't read it. He also stated that he didn't remember deceased signing the paper in his presence and again stated that he didn't remember deceased telling him that he had signed the paper. On re-direct examination Eisenman again stated that he didn't remember the circumstances surrounding 'the execution of that paper' and that he couldn't say 'that that paper was written out at the time' he signed it, although he never remembered signing a blank paper. He also stated, on re-direct, that he didn't remember whether deceased had the paper 'folded down' so that he couldn't see anything on it. On re-cross this witness stated he didn't remember deceased reading the instrument to him and he didn't read the words 'signed sealed and declared by the said E. W. Whitt to be his last will and testament.' About the only thing...