Woodruff v. Hundley

• Decision Date: 28 November 1900
• Citation: 29 So. 98,127 Ala. 640
• Parties: WOODRUFF v. HUNDLEY.
• Court: Alabama Supreme Court

29 So. 98

127 Ala. 640

WOODRUFF v. HUNDLEY.

Supreme Court of Alabama

November 28, 1900

Appeal from probate court, Limestone county; James E. Horton, Judge.

Proceedings for the probate of the will of Mary Ann Walton. From a judgment in favor of the proponent allowing the will to be probated, contestor, James W. Woodruff, appeals. Reversed.

The proceedings in this case were had upon a contest over the probate of the will of Mary Ann Walton. The will was propounded for probate by the appellee, John H. Hundley, who in addition to alleging in his petition the due and legal execution of the will by the testatrix, further averred that the appellant, James W. Woodruff, was a nephew of the testatrix, and that the other person next of kin of the testatrix was Mrs. Bettie Hill, the wife of James A. Hill who was a niece of the testatrix. James W. Woodruff contested the probate of the will upon the following grounds: "(3) That said instrument was procured by fraud and undue influence exerted upon said Mary A. Walton, deceased. (4) That said instrument was revoked by said Mary A. Walton by another instrument in writing subsequently executed by said Mary A. Walton in the presence of witnesses as required by law. (5) That at the date of said instrument in writing said Mary A. Walton's physical and mental condition was such as to render her incapable of executing a valid last will and testament. (6) That said instrument in writing was revoked by said Mary A. Walton by tearing the same apart with the intention of revoking it. (7) That the said petitioner, John H. Hundley, is not the person named as executor in the said instrument purporting to be the last will and testament of the said Mary Ann Walton, deceased; neither is he one of the devisees or legatees named therein, or interested in the estate of said decedent." There were demurrers interposed to the several grounds of the contest upon the grounds that they were not sufficient, and were merely the expression of opinion or conclusion of the pleader, and showed no ground for not admitting the will to probate. These demurrers were overruled. There was a motion made by the proponent to strike the seventh ground of contest upon the ground that it does not contain or set forth any valid objection to the probate of the will. This motion was overruled. Upon the trial of the cause, the will, which was offered for probate, was introduced in evidence. The manner of its signature is set forth in the opinion. The will, after providing for legacies and making devises of the property owned by the testatrix in the first 13 items thereof, then contained the following provisions: "Item 14. The balance of my real estate consists of a plantation containing about 600 acres, more or less, known as the 'Oakwood Place,' and upon which is situated the family graveyard. I give and bequeath this land (with the exception of the graveyard, containing four acres) to John Hundley, G. W Mitchell, and James Sloss, in trust to rent the same, and apply the proceeds to such objects of charity and benevolence as the Presbytery of the State of Alabama of the Cumberland Presbyterian Church may indicate or designate; and, should this devise fail, then the said trustees shall apply the proceeds to the maintenance and education of young men preparing for the ministry in the Cumberland Presbyterian church, or in any other Protestant church. Said young men to be selected by said trustees, or any two of them. I add to this legacy the residuum of my estate. Item 15. Out of the rents of Oakwood I will and desire that said graveyard be kept up in its fencing so as to inclose said four acres decently, and to keep the right of way in good condition and repair." Item 17 was as follows: "Item 17. I hereby nominate and appoint John Hundley executor of this, my last will and testament." The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently set forth in the opinion.

Among the charges given by the court at the request of the proponent, to the giving of which to the jury the contestant separately excepted, were the following: (4) "You can only consider the grounds of contest provided by the statute and they are as follows: 'By burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testatrix herself, or by some person in her presence and by her direction, or by some other will in writing, or some other writing subscribed by the testatrix, and attested as provided by law.' The foregoing are the only grounds of contests of wills provided by law, and I therefore charge you that they are the only grounds to which you can look in determining the revocation of the will propounded. You cannot consider whether the proponent is executor or not. This has nothing to do with the validity of the will, or with this case." (5) "A will having been duly executed, evidence to show that the testator entertained thoughts of or contemplated changes, alterations, or revocations thereof cannot affect the validity of such will in its integrity, or in any of its parts. Until there is a change, alteration, or revocation in the mode appointed by law, the legal presumption is that the result of all thought and contemplation of Mary Ann Walton was a determination to adhere to the will as executed." (11) "The word 'witness' opposite the names of subscribing witnesses who are shown to be dead constitutes a sufficient attestation under our law."

After the verdict was rendered by the jury in favor of the proponent, the contestant made the following motion: "Comes the contestant, Jas. W. Woodruff, and moves that the court, in entering up its judgment admitting to probate the paper propounded in this cause as the last will and testament of Mary A. Walton, deceased, omit item 14 and also item 15 of said paper, because the disposition which said items 14 and 15 purport to make are illegal and invalid, and the devise attempted to be made by said items is void from uncertainty, and does not constitute a valid charitable trust." The proponent moved to strike this motion from the file on the ground that the court had no jurisdiction to entertain or decide such motion, and because no such issue as that sought to be set up by said motion was made in the cause. The motion to strike was sustained, and to this ruling the contestant duly excepted. There was judgment in favor of the proponent allowing the will to be probated. The contestant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

R. W. Walker, Milton Humes, and W. T. Sanders, for appellant.

Harris & Eyster, Thos. C. McClellan, and Oscar R. Hundley, for appellee.

TYSON J.

The testatrix, a resident of Alabama, went to a hospital in the city of Nashville, Tenn., for the purpose of having a surgical operation performed. Apprehending that the operation might be fatal, she had a lawyer of that city to prepare the paper propounded for probate as her last will and testament which she signed in his presence, and which he subscribed as a witness in her presence. The paper was left with her with instructions to have at least two other persons subscribe their names as witnesses. There appears upon this paper, in connection with the word "witness" (to the right of it), which word was written by the lawyer who prepared the paper, directly opposite to it, one name, and under that name another name. To the left of these names, and on the line immediately below, the name of E. M. Hussey appears. The first two names were those of the two physicians who were to perform the operation, and were in attendance upon the testatrix, and who are shown to have had knowledge of the preparation of the will. The third was the name of a physician who was an inmate of the hospital at the date of the signing of the instrument and a friend of the testatrix. These three physicians are dead, and there was proof of the genuineness of their signatures, as well as of that of the testatrix. No witness to the paper propounded for probate, except the first, who did not see the others attest it, saw the testatrix sign it. But this is of no moment, as it is not necessary that the witnesses should actually see the testatrix sign her name. An acknowledgment by her to them of her signature to the instrument is sufficient. 2 Greenl. Ev. (16th Ed.) § 676. On this proof of the execution of the instrument the court admitted it in evidence against the objection of the appellant. The point of objection taken is that there was an entire absence of proof that two witnesses subscribed their names as witnesses in the presence of the testatrix. One of the essential requisites to the validity of the instrument as a will is that it must be attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator. Code, § 4263. Unless this requisite of the statute was complied with, the instrument was ineffectual to pass real or personal property. It was not a will at all within the purview of the statute, and cannot be admitted to probate. Proof of this essential requisite is just as necessary in order to probate the paper as a will as was a compliance with the statute necessary to give validity to it. Nor do sections 4276 and 4277 of the Code dispense with the necessity of making this proof. In speaking of section 4276, this court said, in Barnewall v. Murrell, 108 Ala. 381, 18 So. 838: "The statute was intended to prescribe and prescribes a definite rule regulating the admission of that which may be appropriately termed secondary evidence when the primary evidence of the execution of wills is not attainable. The proper construction of its words, and their real sense and meaning, is that, if...