Blakey's Heirs v. Blakey's

B. W. WALKEB, J.— 1. When a will is propounded for probate, the proceeding is in rem. The object of the statute which requires that notice of the application shall be given to the widow and next of kin of the testator, is that such persons may, if they choose, make themselves parties to the proceeding. When notified, they have the option to stand by passively, or take an active part on either side. But they cannot be considered parties to the suit, unless they come forward, and, by some affirmative act, engage in the litigation. Hence, when an issue is formed in the probate court, between the proponent and persons contesting the will, the former is deemed the plaintiff, and the latter are considered the defendants. They alone are the parties to the suit. It follows, that the decree in this case is correctly described, as having been — 617 — rendered in a ease in which the proponent was plaintiff, and the contestants defendants; and that the appeal was properly taken in the name of the contestants, without joining the next of kin who had not made themselves parties. The motion to dismiss the appeal is, therefore, overruled.—Code, § 1684; Sawyer v. Dozier, 5 Ired. 97 ; Deslonde v. Darrington, 29 Ala. 92. 2. "We think that the court erred in suppressing the deposition of Margaret Whitman. The only evidence that the commissioner was the brother-in-law of one of the defendants, was the mere identity of name. The deposition was taken in Courtland, Texas, by Nelson H. Rice; and proof that there was a Nelson H. Rice, who had lived in Alabama, and was the brother-in-law of one of the defendants, was not sufficient, without more, to raise the presumption that lie was the person of that name who had taken the deposition. If there had been evidence that the brother-in-law had removed to Texas, or that he was in Courtland at the time when the deposition was taken, the result might have been different.—See Desha, Shepherd & Co. v. Stewart, 6 Ala. 852; Colgin v. Redman, 20 Ala. 650. 3. The witness Snead had formally renounced the executorship, and dismissed the proceeding instituted by him to have the will admitted to probate. Under these circumstances, we see no reason which would render him an incompetent witness to sustain the will, in a subsequent proceeding in which another person was the proponent. The fact that he was liable for costs in the former case, which he had instituted and dismissed, cannot affect his competency in this proceeding.—See Burritt v. Silliman, 3 Kernan, 93; Sawyer v. Dozier, 5 Iredell, 97. 4. It is the settled law of this court, that the declarations and acts of a proponent, who is not the sole legatee, are not admissible in evidence to defeat the probate of the will. If all the other legatees were contesting the will, or consenting to the admission of the testimony, the rule would doubtless be different.—Roberts v. Trawick, 13 Ala. 68 ; Walker v. Jones, 23 Ala. 448; Bunyard v. McElroy, 21 Ala. 311; Taylor v. Nelly, 31 Ala. 73. There was no — 618 — error, therefore, in excluding the various declarations and acts of the proponent, offered in evidence by the contestants. 5. The proponent had the right to rebut the evidence which the contestants had introduced, to show the state of feeling’ between the testator and the proponent, who was the principal legatee; and for this purpose, the testimony of the witness Logan, though entitled to but little weight, was relevant. This witness is shown to have had opportunities for knowing the state of feeling between the testator and his wife; and his testimony comes within the influence of the rale, adopted by this court, that “ when the situation of a witness is such, that if a certain fact had existed, he would probably have known it, his want of knowledge is some evidence, though slight, that it did not exist.—Nelson v. Iverson, 24 Ala. 9; Ward v. Reynolds, 32 Ala. 384. 6. Under the Code, (§ 2302,) it is not a sufficient reason for excluding a witness, that the effect of a judgment in favor of the party who introduces him would be to place him in a state of security. His competency depends upon the question, whether the verdict and judgment would be evidence for him in another suit; and the test whether they would be evidence for him, is the inquiry, would they be evidence against him if adverse to the party introducing him ? In other words, the witness is competent, unless the verdict and judgment would be evidence for or against him in another suit, according as they may be for or against the party calling him.—Harris v. Plant, 30 Ala. 634; Atwood v. Wright, 29 Ala. 346. As a decree, refusing to admit this will to probate, would, as to the witness Moren, be res inter alias acta, and therefore could not in any subsequent suit be evidence against him, he was not incompetent.—Authorities supra; see, also, Coalter v. Bryan, 1 Grattan, 86. 7. The contestants introduced as a witness one Stanley, who, in the course of his testimony, stated, that he had been upon friendly terms with the testator, until within a few years before the death of the latter; that in September, 1853, he (the witness) was sick, and that at that time — 619 — one Dr. Gradick, who was his attending physician, lived in Centreville in Bibb county. The court allowed the proponent to contradict this witness upon the points just mentioned, by proving a declaration, made by him many years before the trial, that he and the testator were not on good terms; and by showing that Dr. Gradick did not live in Centreville at the time stated by Stanley. Construing the bill of exceptions most strongly against the appellant, we must presume that these statements of the witness, which the court permitted to be disproved, were made on his examination in chief, either voluntarily, or in response to questions from the party introducing him. “It is a well-settled rule, that a witness cannot be cross examined, as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him. And if a question, which is collateral or irrelevant to the issue, is put to a witness, his answer cannot be contradicted by the party who asked the question, but it is conclusive against him.”—1 Greenl. Ev. § 449, and cases. In Ortez v. Jewett, 23 Ala. 662, this court said: “You cannot question a witness, or allow the other party to question him without objection, about a matter not relevant to the issue, in order to lay a ground for impeaching him, by calling witnesses to disprove what he says.” In that case, a witness had, in the course- of his testimony, and, as it would appear, upon his examination in chief, sworn to a fact irrelevant to the issue, and the defendant offered evidence to disprove this statement. This court held, that it was not permissible to do so. It is true that a different rule was announced in Dozier v. Joyce, 8 Porter, 303 in which, while it was admitted that a witness cannot be cross examined as tó a collateral fact, for the purpose of contradicting and thus impeaching him; yet, it was held that, if the witness voluntarily swears falsely, as to matters not within the issue, he may be impeached by contradicting him-. In that case, it seems to have been considered, that the main reason for the rule, which prevents a cross examination upon immaterial matters for the mere purpose of contradicting the witness, is, that he cannot be presumed to come -prepared to defend — 620 — himself on such collateral questions; and as this reason fails when the testimony is voluntarily given, the rule itself does not in that case apply. The reason referred to is doubtless one of those on which the rule is founded, but it is not the only, or even the chief one. The principal reasons of the rule are. undoubtedly, that but for its enforcement the issues in a cause would be multiplied indefinitely, the real merits of the controversy would be lost sight of in the mass of testimony to immaterial points, the minds of jurors would thus be perplexed and confused, and their attention wearied and distracted, the costs of litigation would be enormously increased, and judicial investigations would become almost interminable. An additional reason is found in the fact, that the evidence not being to points material in the case, witnesses guilty of false swearing could not be punished for perjury. 1 Greenl. Ev. § 448; Bowers v. Leach, 26 Verm. 270. These reasons apply .equally whether the evidence on such collateral matters is brought'out on the examination in chief, or upon cross examination, and whether the witness gives it voluntarily, or in response to questions calling for it. Almost every witness who testifies in court is apt to connect with the material facts stated by him some matters wholly collateral and impertinent; and it would be intolerable to allow all such incidental statements to be taken advantage of for the mere purpose of contradicting and thereby impeaching the witness. If such a practice were sanctioned, every trivial circumstance mentioned by a witness might become the subject of a separate and subordinate issue, which would have nothing whatever to do with the real question to bo 'determined, but would inevitably serve to confuse the jury and prolong the trial. These considerations induce us to prefer the conclusion attained in the case of Ortez v. Jewett, supra, to the rule adopted in Dozier v. Joyce, supra. Stanley’s testimony went mainly to show certain acts and declarations of the testator, in reference to his making a will. The statements that he and the testator were on friendly terms, and that Dr. Gradick lived in Centreville at the time when the witness was sick, appear as purely — 621 — incidental matters, and could not be relied on by the contestants as tending to establish any fact pertinent to the issue. The only purpose which could be subserved by contradicting the witness on these points, would be to discredit him before the jury; and this being the case, we think that the court erred in admitting the evidence offered to disprove the statements referred to. This conclusion is not inconsistent with the ruling of this court in several cases, in which it has decided, that where one party introduces illegal testimony, he cannot complain on error that the court permitted the other party to rebut it; the principle being, that testimony inadmissible in itself becomes competent by the introduction of other evidence to which it may be a reply. In all the cases in which this rule has been asserted, the evidence which was allowed to be rebutted, although inadmissible according to legal principles, was yet of such a character, or had such a relation to the facts in issue, that, if uncontradicted, it would probably exert some influence upon the minds of the jury in reference to the question to be decided by them. The rule has no application, where the facts testified to are not only wholly collateral to the issue, but obviously could not, even if true, exert any influence upon the minds of the jury in making up their verdict. Besides, the right allowed is to introduce evidence simply for the purpose of rebutting illegal testimony, and of thus neutralizing its effect, and not for the purpose of discrediting a witness.—See Havis v. Taylor, 13 Ala. 326; Findley v. Prewitt, 9 Porter, 195; Nelson v. Iverson, 24 Ala. 9; Rogers v. Wilson, Minor, 407; 3 Phill. Ev. (3d ed. 1850) 594; 4 ib. 723. 8. The several charges to the jury, given by the court, seem to be unobjectionable. They are fully sustained by ■the authorities, and are, for the most part, expressed in’ the language employed by this court in the following ■cases: Coleman v. Robertson, 17 Ala. 84; Leverett v. Carlisle, 19 Ala. 80; Gilbert v. Gilbert, 22 Ala. 529; Taylor v. Kelly, 31 Ala. 59; Hughes v. Hughes, 31 Ala. 520; Dunlap v. Robinson, 28 Ala. 100; see, also, 1 Wms. on Ex’rs, 42. — 622 — We have not been able to discover any errors in the record, other than those we have indicated. For the errors pointed out, the decree of the probate court is reversed, and the cause remanded.