| Ala. | Jan 15, 1873
— In a contest about the validity of a will, there is no error if the court requires the list of jurors summoned for the trial to be exhausted before resorting to tales-men. When two talesmen are summoned, from whom to supply the place of a rejected juror, both should be drawn before summoning others. A party is not entitled to talesmen until he has passed on each of the jury presented to him for challenge. He has no right to challenge one, then have two tales-men summoned, see how he likes them, challenge another, and repeat the proceeding. This is pure speculation, not even allowed to the accused in jeopardy of his life. Rev. Code, § 4177.
2. The republication of a will is a mixed question of law and fact. But there is enough Of fact in it to make it a sufficient reply to the objection that the testator made a subsequent will, when coupled with the allegation that he destroyed such subsequent will before the republieation. The republication of a will, whether express or constructive, must contain the essential ingredient, that, being in writing, and signed by the testator, he makes it known as such to a competent number of witnesses, whose attestation is made in writing, in the presence of the testator. 1 Jarm. on Wills, 73, 173; Rev. Code, §§ 1930-1933. There are authorities that republieation may be made by parol. But none such exist in our reports. The tendency of our law is towards more stringency in the execution of wills. Once, a will of personalty needed no attestation. The issue to be made up in the Probate Court must be one decisive of the controversy on its merits, and consequently this court will review only such exceptions to the pleadings as are necessary to that end. If it appear from the record that the cause was heard on proper issues, errors in the manner of making up the issues, not calculated to affect the judgment, will not be considered as grounds for reversal.
3. The proponent of a will, as a party, has a constitutional right to be present at the trial. St. Const. Art. I. § 12. He must, therefore, be excepted from the rule separating the witnesses. The chance of the opposite party to interrupt a concerted story is «not equal to the party’s right to testify, and to prosecute or defend his cause.
4. The will of 1867 would have been proper evidence for the proponents to prove that the one propounded, and which revoked the other, had been mutilated by Mrs. Bell, and not by the testator, by exhibiting a motive in the greater interest be
5. The law of the republication of a will, as applicable to this case, is fully and explicitly stated in this same case. Barker v. Bell, 46 Ala. 216" court="Ala." date_filed="1871-06-15" href="https://app.midpage.ai/document/barker-v-bell-6508056?utm_source=webapp" opinion_id="6508056">46 Ala. 216. The will propounded has the. names of the testator and two of the three subscribing witnesses tom off. Such a mutilation must be accounted for. There must be some belief about how it occurred, on the part of the court or jury. The presumption depends upon the circumstances. If it was a revocation, then the will cannot be republished, except by a re-signing, and another written attestation. No extremity of circumstances could prevent the testator from having his name affixed, if he was capable of procuring the indispensable attestation. The due appreciation of what he was doing is inconsistent with a belief on his part that his will need not bear his signature.
6. The point is made for the proponents that, in order to revoke a will it is not sufficient that the existence of a subsequent will should have been found by the jury; but it must be found different from the former, with the nature of the difference. The proposition is not correct. One of-the ways of revoking a will is by making a subsequent one. Rev. Code, § 1932. The making of a subsequent will, and the destruction thereof, does not revive any will previously executed. Ib. § 1933. It is not necessary that the subscribing witness should know anything of the contents of the will. Therefore, unless the existence of the subsequent will, not shown to be a mere codicil, is alone sufficient to revoke the former, its destruction alone would revive it.
If it be conceded that there was a will of later date than the one propounded, the record discloses no proof of a valid republication of the latter. If there was no subsequent will, the mutilation of the other becomes the essence of the controversy. Upon this issue, the credibility of witnesses may be attacked and defended in due form, about which there is no uncertainty.
The judgment is reversed, and the cause remanded.