Nunn v. Lynch

Hilu, C. J. This is a contest between the heirs at law of Sallie A. Becton and the devisees of John W. Becton over a tract of land in Woodruff County. Each side claims from Sallie A. Becton as the common source of title; the appellants under the statute of descents and distributions, and the appellees 'under two wills, the first that of Sallie A. Becton, which, it is claimed, devised all of her property to John W. Becton, her husband, and the second, which is undisputed, in which John W. Becton devised to the appellees. The determination of the case turns upon the alleged will of Sallie A. Becton. The record of the probate court shows that a will of Sallie A. Becton was probated, but does not show its contents. The will was not recorded, and was not produced, having been lost, and the evidence is parol to establish its terms and contents. The statutory requirements for the execution and probate of wills were almost entirely disregarded, and the utmost which can be said of the record evidence is that Sallie A. Becton made a will. The witnesses claiming knowledge of the contents of the will vary widely as to its contents, and therefore it is impossible to determine what was the last will of Sallie A. Becton. The Maryland court aptly said: “The policy of the law has thrown around last wills and testaments as many, if not more, shields to protect them from frauds, impositions and undue influence than any mode of conveyance known to the law. Can there be a doubt that in cases like the present, where the object is to establish the contents of a paper which has been destroyed, as and for a last will, that policy does require the contents of such paper to be established by the clearest, the most conclusive and satisfactory proof? We think not.” Rhodes v. Vinson, 52 Am. Dec. 685. Applying this salutary standard to the evidence here, it falls short of convincing, especially as no two of the witnesses give substantially the same evidence as to vital questions. Therefore the case is reversed and remanded, with instructions to enter a decree in acordance herewith.