Cummings v. McDonnell

ANDERSON, C. J. Whether there was or was not error in permitting the witness Jones to testify that the will had been duly probated, it was, if error, without injury, as the objection made to same was that the record was the best evidence, and which said best evidence was immediately introduced. Moreover, the contestant assigned no grounds of objection to the original will and the written evidence of the attesting witnesses, which had been taken under sections 6188 of the Code of 1907, and which was admissible evidence, under section 6209, upon this contest in the chancery court. It is no doub ; true that [101] upon a contest in the chancery court,-by a party who had not contested the will.in the probate court, the mere fact that the will was probated in the probate court is not conclusive upon the contestant in the chancery court.—Know v. Paull, 95 Ala. 505, 11 South. 156. And the fact of the probation of the will is not even prima facie evidence of the execution of same upon a contest of same in the chancery court.—Johnston v. Glasscock, 2 Ala. 218. But this does not mean that the .proponent cannot make out a prima facie case of the execution of the will by the introduction of the evidence taken in the probate court, under section 6188, and which is expressly authorized upon the contest in chancery by section 6209. Indeed, the opinion in the case of Johnston v. Glasscock, 2 Ala. 218-, recognizes that, this evidence is admissible as a reason for holding that the first probate of the will, in and of itself, is not prima facie evidence of the due execution of the will in the contest in the chancery court. This case does not hold that said evidence is not admissible, and it would contravene the plain letter and meaning of section 6209, if it so held. It may be that the trial court erred in the statement, that the proponent made out a case upon the introduction of the will showing that it was probated, as thffi was not of itself prima facie evidence of the execution of same, but the proponent went further and introduced the evidence of two subscribing witnesses, as taken down under section. 6188, and which was sufficient to make out a prima facie case, even if the execution of the will was contested, bnt which seems not to have been an issue in this case, as the judgment entry shows that the issue made by the contestant was against the validity of the will because of, the mental incapacity of the testator. The execution of same seems not to have been [102] questioned. Moreover, there was no objection or exception to this remark of the court. The .quotation in appellant’s brief is from the case of Barksdale v. Davis, 11 Ala. 628, 22 South. 17, to wit: “Upon the probate of a will in the probate court, whether contested or not, and on contest in chancery, like that now before us, the prime step to be taken on the hearing is for the proponent in the one case, and the contestee in the other, to prove the due execution of the will, in manner and form as required by the statute.” This means that in either event the proponent must prove that the will was executed in manner and form as required by the statute; that is that it was in writing, was signed by the testator, was attested by two-witnesses, etc., but does not mean that the method of establishing the statutory requirements must be by the same kind or character of evidence in the chancery court, as is required and as was pursued in the probate court. To hold that the attesting witnesses would again have to be produced or the same steps taken to prove same as the statute requires in the probating of the will in the probate court would, in effect, emasculate so much of section 6209 as makes the written testimony taken under section 6188 in the probate court admissible evidence in a contest of this character." The execution of the will having been proven in this contest by the recorded evidence of the subscribing witnesses and which said evidence showed that it was in manner and form as required by the statute, the court could have charged affirmatively that the will was duly executed, as there was not only no evidence to the con-trary, but the record affirmatively shows that 'the execution of same was not questioned; the sole issue being whether or not the testator was mentally incapacitated. [103] Therefore there was no error in refusing the contestant’s charges based upon the hypothesis of an invalid execution of the will. There was no reversible error in declining to let the witness Paraham state whether or not the testator referred to any particular. one that would not let him come to see witness. He stated that testator said they would not let him come to see him, the purpose of this evidence being to show the want of free agency, and the person or persons who the testator thought or said were restraining him could add little or no' force to the fact that he was or felt like he was restained. We think that the witness Anderson showed such an acquaintance with the testator as to authorize an opinion by him as a nonexpert of -the sanity o'f the said testator. He was a near neighbor, was 40 years old, had known testator all of his life, frequently talked to him and had business transactions with him. Moreover, as to whether or not a sufficient predicate. was established was largely discretionary with the trial court, and a ruling thereon will not be disturbed by this court unless- there be a palpable abuse of said discretion.—Jones v. State, 181 Ala. 63, 61 South. 440, and cases there cited. Charge 13, requested by contestant, was manifestly bad and was properly refused. It is questionable as to whether or not there is a sufficient insistence in brief of counsel as to error in refusing the contestant’s requested charge 14. It is sufficient to say, however, it was well refused, as it is argumentative and also invades the province of the jury, as it was with them to say what weight they would give the evidence of the respective witnesses.—Higginbotham v. Higginbotham, 106 Ala. 314, 17 South. 147. [104] There was no error in giving the proponent’s charge 15.—Pritchard v. Fowler, 171 Ala. 663, 55 South. 147. The only criticism of charge 28, given for the contestee, is that it is abstract. If this be true, it could have been refused, but giving same was not reversible error. There was no error in giving contestee’s charge 29. Charge 22, given at the request of the contestee, could have well been refused, as it was perhaps argumentative and singled out certain parts of the evidence; but the giving of same was'not reversible error. The question was the mental capacity of the testator when he made the will in 1902, and his action or nonaction in a certain particular four or five years subsequent to making the will did not show mental incapacity when said will was made. Indeed, under the evidence in this case, his failure is not a circumstance tending to show that he was mentally inacapable in 1902. The decree of the chancery court is affirmed. Affirmed. McClellan, Mayfield and Somerville, JJ., concur.