Vining v. Hall

Habéis, J., delivered the opinion of the Court: The defendants in error, Charlotte D. Iiall and Elizabeth Dilliard, filed their petition in the Probate Court of Bolivar county, praying the establishment and probate of the will of John L. Harris, deceased, which they allege was destroyed by some of the appellants and heirs-at-law of the said Harris, to the prejudice of the petitioners, who were legatees under the will. The cause was heard in the Probate Court, and a decree rendered establishing the will as a bequest of personal estate, and admitting the same to probate as such. Prom this decree an appeal was prayed, and the cause brought to this court by the appellants for revision. At the October Term, 1861, of this Court, the cause was submitted on brief of counsel, and the decree in the court below reversed on the first and last grounds of error assigned. First, because the Probate Court erred in admitting the deposition of Rice Ballard, taken a second time, without leave of the court, to be read in evidence, after the reading in evidence of his first deposition by the appellees; and second, because, as to some of the defendants below, there was no answer, or pro oonfesso. An application for a reargument was filed and allowed, and the cause is now again submitted for our consideration with the request of counsel on both sides at the bar that the court should consider the cause on its merits. 'Waiving, therefore, the points discussed and decided on the first argument of the cause, we have carefully examined this record in reference to the propriety of the decree in the court below, establishing the will and admitting it to probate on the evidence before us in the bill of exceptions agreed on in the court below by the counsel of the respective parties. It is assigned for error in the second and fifth causes, that this decree is not justified by, and is contrary to, the proof, and that it should have been for the defendants below, and the petition dismissed. [103] Tbe rules of law governing the establishment and probate of wills, which have been lost or destroyed, have regard, first, to the proof of their existence and proper execution; second, to the evidence of their loss or destruction; and third, to the proof of their contents. It seems to be beyond dispute, in the case before us, that the decedent made a wall, duly executed, to pass his personal estate, and that the will was destroyed by some of the parties to this litigation. It is only needful, therefore, to examine what are the rules governing the proof of its contents, in reference to the facts in this case. It is well settled that when the contents of a will, improperly destroyed, are satisfactorily proved by witnesses, they will be established as the will; but the policy of the law requires such contents to be established by the clearest, most conclusive, and satisfactory proof. Such is the language of the court in Rhodes et al. v. Vinson et al., 9 Gill’s R., page 169; and to the same purport see 1 "Williams on Exrs., page 332, 333 and notes; 1 Lomax on Exrs., page 113; 3d Eng. Ecc. R., page 52; Huble v. Clark, 8 Metcalf’s R., page 487; Davis v. Sigourney, and Durfree v. Durfree, page 490, note. In the case of Dams v. Sigo'wrney, cited above, the court says : “ Although an unrevoked will, which is lost or destroyed, may be admitted to probate, upon parol proof of its contents ; but it will not be so admitted, unless the evidence of its whole contents is most clear and satisfactory.” And in the case of Rhodes et al. v. Vinson et al., it is said that the authorities all hold the doctrine on this question that the proof of the entire contents should be .conclusive and satisfactory. We are then to inquire whether the contents of the paper which was destroyed are satisfactorily proved. On this point we think the testimony in this record, instead of being clear, conclusive, and satisfactory, is most contradictory, inconclusive, and unsatisfactory. The whole case w$,s submitted in the court below, as it is here, upon written testimony, the depositions of witnesses, all of equal credit, and all intending to speak the truth, so far as it is possible for us to know. IIow testimony so contradictory in the most material matters can be reconciled, so as to [104] be regarded bere as clear, conclusive, or satisfactory, we are wholly unable to discover. T o illustrate, we will refer to an abstract of the evidence in some particulars. In regard to the manumission of the slave Betsy and her children, and the legacies bequeathed to them, witness Kenney, in stating his recollection of the contents of the will, says — The testator manumitted Betsy and her seven children, and gave her $10,000; to Henry, $10,000 ; to Pussy, $10,000; and to the other five children, $7,500 each. . Ballard, in his first deposition, says, — The testator gave to Betsey, $10,000 ; to her son at school' in Philadelphia, $10,000; to a girl-child of Betsey, $7,500; to another girl-child of Betsey, $7,500; to another girl-cliild of Betsey, $5,000. In his second deposition, this same witness, Ballard, says,— Testator gave to Betsey and two of the children, Henry and Puss, $7,500 each; and to five others, $5,000 each. Young says, — Testator gave to Betsey not more than $10,000, nor less than $5,000; to Henry, $10,000; and to one or two more children of said woman, Betsey, each the sum .of from $2,500 to $5,000. 'Wilson says, — The woman Betsey and several of her children were provided for in sums varying from $1,000 to $5,000. Prom this testimony we think it would be difficult to decide what were the specific dispositions of testator’s will in relation to Betsey and her children, or even how many of her children were provided for. The proof on this subject is certainly not clear, conclusive, and satisfactory. Again, as to the disposition of certain bank or other “ stock ” or “ stocks,” in Louisiana. Witness Kenney says,' — The will gave to Hr. Harris “ the Louisiana Bam]& stock.” In his deposition, as well as by other testimony, it appears that this witness drafted the will, the contents of which he is introduced to prove. It further appears from his deposition, that, on the next morning after the execution of the will, he took a memorandum thereof in his field-book, he being a surveyor or engineer, from which he says he copies the “ foregoing items of the will.” But when the field105 book is examined, as it appears in tbis record, it is there said, “Louisiana stock -to Dr. Harris of New Orleans— brother.” Witness Ballard (in his first deposition) says — Testator gave to his brother, Dr. Han-is,“ all his Louisiana STOCKS.” Witness is confident the will said Louisiana STOCKS, not “ Bank stocks.” . In his second deposition, this same witness says of this will— I think it commenced by bequeathing to Dr. Harris “ dll of Ms Louisiana stockL Young says — The bequest was of “ Bank stocks in Louisiana.” Wilson says — It was “ his Louisiana Bank stock.” Hubbard says — ■“ Certain Bank stocks; ” don’t recollect whether all or a part in New Orleans. From this record we cannot say whether the testator intended to dispose of his “ Louisiana Bank stock ” or his “ Louisiana stock ” or “ stocks,” or even what stock he owned in Louisiana. Again, in relation to his “ Indian Point plantation and all upon it”— Witness Kenney says — “ To Mrs. Moore (niece), the Indian Point plantation and all upon it.” “ To Mrs. Dilliard and Mrs. Hall, fifty thousand dollars equally (sisters).” “ Recollects that in bequeathing the Louisiana Bank stock to Doctor Harris he willed that the $50,000 to be paid to his two sisters, should be paid out of that fund.” In his statement of the contents of this will furnished to Dilliard as a memorandum of what he would prove, this same witness says — “ Mr. Harris bequeathed to his two sisters, Mrs. O. D. Had and Mrs. Elizabeth Dilliard, his Indian Point plantation, with all that was on it.” In his field-book memorandum, nothing is said of the payment of the $50;000 legacy out of the stocks. Witness Ballard, in his first deposition, says — “ The will then gave to his two sisters his Indian Point plantation and all thereon to be shared equally between them.” But in his second deposition, after making the same statement, he adds — “But about this L may be mistaken..” He next mentions the bequest to two nieces, and then says — “ I think he [106] then named a Mrs. Moore, but do not remember what was the bequest to her.” "Witness Young says — “ The next legacy that I recollect particularly about, was that he gave his Indian Point plantation, in the State of Mississippi, and all on it, to a Mrs. Moore, his niece, of Huntsville, Alabamaand adds, “ There were other legacies left to others, the names of whom and the amounts I do not recollect.” Witness Hubbard says — “Also Mrs. Moore of Huntsville, Alabama, was bequeathed the Indian Point plantation and all thereon, and to two other ladies each about the sum of $20,000 or $25,000.” Witness Wilson says — “ After the servants were provided for, he mentioned his two sisters by name, Mrs. Charlotte Hall and Mrs. Elizabeth Dilliard, and gave them a plantation (the name of which -witness cannot recollect) and all that was on it, negroes and all, to be equally divided between his sisters.” On cross-examination, he says “ that he does not remember that Mrs. Moore’s name was mentioned in said will or any legacy left her.” This Indian Point plantation, with the property upon it, from what appears in this record, probably constituted a large portion of the testator’s estate, and yet the evidence is contradictory and wholly irreconcilable as to whether the testator gave this large property to his niece, Mrs. Moore, or to his two sisters, Mrs. Hall and Mrs. Hilliard. It will be observed that the decree of the court below, adopted for the most part the testimony of the witness Kenney, who drew the will. It appears from this record, that his testimony consists of three versions of this will: first, the memorandum thereof in his field-book, made by him the morning after the execution of the will; second, the statement of what he would prove, furnished to Hilliard about two months thereafter; and third, his deposition taken about two years after the execution of the will. The testimony of this witness,,as thus exhibited in the record, is not only uncertain and unreliable, from defect of memory, but contradictory in most material and important [107] dispositions of the will it is introduced to establish. No two of the versions agree with themselves, nor is any one of them sustained by the other evidence in the cause. Without following further the contradictions and uncertainties appealing in the evidence before ns, as to what were the contents of the will sought to be established, we think it manifest that the decree founded on it cannot be upheld under the rules of law to which we have adverted, except in so far as jt establishes the revoking clause, about which there is no serious conflict in the testimony before us. It is the inclination of courts everywhere in this country, to apply with the greatest strictness, to cases of wills, the rules applicable to the proof of the contents of lost instruments. As the basis of judicial action we have seen that such proof, in the case of wills, must be clear, ' conclusive, satisfactory. In view of the facts .of this case, we deem it unnecessary to discuss or decide the question discussed in the briefs of counsel, as to the probate of so much or such parts of a will as are satisfactorily proven, or whether the whole contents of the will must be established, or what are the exceptions to that rule. The case before us only presents the question of the establishment of the revocation clause, which is clearly proven. The case of Hainston v. Hainston, 30 Miss., page 27, and authorities there cited, clearly settle our duty in this respect, holding that a will duly executed according to the statutes, though prevented from taking effect in consequence of some matter dehors the will, as the incapacity of the person to whom the disposition is made to take, is a revocation of a former will. The will attempted to be established in this case having been attested by only two witnesses, the clause of revocation contained therein under our statute can only affect personalty, disposed of under prior wills. Let the decree be reversed, and a decree entered here in accordance with this opinion.