35 Ala. 169 | Ala. | 1859
1. Admitting all the facts which the evidence offered by the plaintiffs tended to establish, there was no suit pending when the promise sued on was made. True, the defendants had propounded the will for probate, notices had been served upon the plaintiffs, and they had employed counsel to contest the will; but they had not, in the only mode authorized by law, made themselves parties to the proceeding, and could not have been held responsible for the costs. Unless they came forward, and became parties in the manner provided bylaw, the proceeding was simply in rent, and not a suit inter partes. — Code, § 1634; Blakey’s Heirs v. Blakey’s Distributees, 33 Ala. 611.
3. Por the purpose of rebutting the evidence of a consideration for the promise, introduced by the plaintiffs, the defendants had the -right to show, if they could, that the provisions of the will were just and reasonable, consonant with the state of the testator’s family relations, and such as afforded no well-founded cause of complaint. This, if proved, would be a circumstance conducing, in some degree, to establish the capacity of the testator, and the absence of fraud or undue influence in the execution of the will. Such testimony was, therefore, pertinent to the inquiry, whether the plaintiffs had any reasonable ground for their controversy with the defendants; or, in other words, whether there was any contest or dispute, of which the issue might fairly be considered by both parties as doubtful. — Parsons’ Contr. 364. Por these reasons, it was proper that the will itself should be before the jury, together with proof of the value of the different legacies and devises contained in it, and of the’ amount and value o'f the advancements made by the testator in his life-time to any of his children. There was no error in allowing the defendants, for the purpose here mentioned, to prove the value of the slaves given by the testator in his life-time to the plaintiff Elizabeth, and the amounts received by his grand-children under his will.
4. ’We must construe the charges of the court in connection with the evidence, and apply then to the contract which, as the record informs us, the proof tended to establish. This contract was, that “ defendants would pay to
The case is still plainer with regard to the amounts received by the children of Mrs. Allen, by her first husband,
Eor the errors indicated, the judgment is reversed, and the canse remanded.