108 Ala. 366 | Ala. | 1895
Error in the admission of illegal or irrelevant evidence is cured by its subsequent withdrawal, and a positve instruction to the jury to disregard it. — 1 Brick, Dig. 809, § 88. The contestants proposed to withdraw from the jury the evidence which they had on cross-examination elicited from Mitchell, to the introduction of which the proponent had objected, and had reserved an exception to the overruling of the objection, accompanying the proposal with the request for a specific instruction to the-jury to disregard it. The proponent objected, and at his instance, the court overruled the motion and refused the instruction. If the evidence remained before the jury, it was wfith thé consent of the proponent, and he cannot be heard oá error to complain of its original introduction. Errors óf this character, a party induces a cóúrt to commit, or in which he induces a court to persist, when his adversary is seeking" by légál fhethóds’ to correct them, are not a/váilablé ás causes fot a reversal óf á jüd-gméiit' óf á1 decreel'
We are-unable' to' conceive of- any theory Of reasoning, .upon which the evidence of Lowe, that some eighteen
The statute requires instructions to a jury requested by either party to be in writing, and declares that they must be given or refused in the terms in which they are written; and that “it is the duty of the judge to write 'given’ or ‘refused,’ as the case may be, on the document and. sign his name thereto,” &c. — Code, § 2756 ; Pamph. Acts, 1888-89,-p. 90. If'the presiding judge . should refuse on request to' express in. writing the giving or- refusal of' instructions, and the party aggrieved should reserve an exception , the error would be cause of reversal, for. the judge- would have denied, a right the statute .confers, and-, deprived-the.- party-of the opportunity. oh revising in an appellate tribunal the correctness or incorrectness' of .the instructions’.. .But,the mere-iail-ufie..,óf the judge from -inadvertence to endorse the 'instructions, the party complaining not directing attention
The judge of probate deeming an inspection by this court of the original of the instrument propounded for probate, necessary and proper, has .transmitted it in accordance with the 23d Rule of Practice ; and it has been examined with much of care. It consists of seventeen sheets of ordinary legal cap paper, to which a cover of similar paper is attached. The first sheet of the writing commences with the usual, formal declaration, that it is the last will and testament of the testatrix, Mary E. Barnewall. The succeeding paragraph, contains the appointment of the husband of the testatrix as executor, Without bond. The third paragraph, is a gift to the husband for life, of all the estate real and personal of the testatrix. The fourth paragraph which is commenced on the first page, and continued to the second sheet, the reversé page not being written upon, ie a residuary devise and bequest, on the death of her husband, of a'l the estate, .real and personal, of the testatrix, not otherwise disposed of by the instrument, to the Rector, Wardens and Vestry of Christ Church} Mobile, The concluding paragraph of this gift of. the residuum is in this .form' and in these words :
, “The said property to. the Rector, Wardens and Vestry .Christ Church, for said ,Ch,urch( consists of. , ■ ' ■' ..... , ;Feet ón.water front .
..■^.undivded interest .in squares 319-320
•¿Orange- Grove.bounded by.Eqrlé St. Jackson St»-Nó-TOi-lÓS-Commerce Street. . ’
Dwelling house and lot No. 251 Government St.
This latter I will to b¿ kept in .perpetuity, never to be sold, never to be called by any qtlier than my father’s name, be the use what it may,
Bonds valued'at
Securities valued at
■ The t’everse page commences : ‘ ‘Pearing there may be a misunderstanding of what I have given different ones, I write here, what I want left in the house, .to go with it as part and parcel thereof;” followed by an enumeration of various articles of personal property, consisting of a library, pictures, and household furniture in different apartments of the dwelling, house, occupying the entire page. The third sheet, consists of gifts of personal property in the dwelling house, to the sister of testatrix, Josephine McCartney; and of a gift to her for. life of Pew 98 in Christ church. The fourth sheet consists of gifts to Virginia E. Mitchell, the Sister of testatrix ; the reverse page being without writing. The fifth sheet contains three paragraphs. The first is a gift of a carriage and horses to Nina E. Mitchell, the sister of testatrix. Several lines intervening on which there is no writing, the second paragraph is a bequest of one thousand dollars to Edward C. Emanuel, the brother of testatrix. The third paragraph is in these words : “The pictures not mentioned to be divided between my two sisters.” The sixth page contains two paragraphs. The first is a gift of described personal property, to Mary B. Mitchell, the niece of testatrix. Several lines without writing intervening, this paragraph is on the last lines of the page : ‘‘I did give to my sister, Josephine McCartney, one sideboard or etajere in the dining room, but this I revoke here, not wishing to scratch it out from her list.” The seventh page consists of two paragraphs ; the first is a gift of described personal property to Effie Murrell, a niece of testatrix, the description commencing, with : Bond face value of--. ’ ’ Several lines intervening, on which there is no writing, is a gift to Mary B. Murrell, a niece of testatrix, of described personal property, the description commencing : “Bond face value of-” The eighth sheet consists of two paragraphs. The'first-is a gift to Isabelle Shields of described personal property-, of Which is a “Bond face value, five hundred dollars ;” the words five hundred dollars, written with pencih The second paragraph, several blank lines intervening, is in these yrords : “The-/
We are induced to this extended description of the the original instrument, because it is insisted that on its face, it is an incomplete, unfinished testamentary paper, intended by the testatrix only' as preliminary, or preparatory to the making of a complete testamentary disposition of her estate; and that it bears internal evidence of alterations or additions made after its alleged execution and attestation, which vitiate it, because, as is said, of the impossibility of detecting and distinguishing them from that which was written at the time of the execution.
The bill of exceptions purports to recite all the evidence which was introduced on the tidal, and it is without conflict. McNeill having died, and Frolichstein being without the State, Wheeler only of the subscribing witnesses wa,s produced. He testified that he knew the testatidx, and witnessed her signature to the instrument propounded for probate. She signed it in his presence, and he signed his name thereto in her presence, in the office of the proponent; he was there at the request of the proponent to witness the signing. Presumed Mc-Neill and Frolichstein were there, but could not remember clearly. On cross-examination he stated : “I do not remember what was said after I got to Mr. Barnewall’s office. I do not remember clearly about Mr. Frolich-stein or Mr. McNeill being there, no more than we all signed together, and I presume they were there. I do not remember clearly about their being there, nor do I remember what Mrs. Barnewall told me relative to the
The proponent testified that the testatrix was his wife. That she came to his office early in April, 1892 ; said she wanted to sign her will, and requested him to call in witnesses. She unrolled the instrument now propounded ; turned over the leaves until she reached the attestation clause, and he pointed out where she should sign, and where the witnesses should sign. He called in as witnesses, Wheeler, McNeill and Frolichstein; and she signed the instrument in their presence, and they signed their names in her presence. At the time of the signing, the papers were fastened together; they were bound together at the top. As she turned over the leaves, the blanks appeared as they are now ; the instrument is in the handwriting of his wife, every part of it. The outside covering was loose, and remained loose until the 23d day of June, 1894, a few days before the death of the testatrix, when he attached it to the instrument with eyelets. Sometime in February or March, 1892, at the request of the testatrix, he gave her legal cap paper on which to write her will. Did not know how many sheets he gave her; he did not give her loose sheets but uniform paper. First read the will on 23d June, 1894, had seen it previously. Saw it in the latter'part of September, 1893, when his wife made a visit to Chicago. Found it lying on his bureau, and opened it to see what it was. Recognized the outside covering which was on it the day it was signed. Read the heading, saw it was tlie will of his wife ; turned to the attestation clause, and that convinced him it was the wiil signed in his office, in his presence. Knew pretty well its contents from what his wife “had spread abroad in the family.”
The genuineness of the signatures of McNeill and Frolichstein was proved.
John K. Mitchell, a nephew of the testatrix, testified, that he saw the paper propounded, in the possession of the testatrix, in the latter part of March or early in April, 1892, before its signing and attestation. That she produced it from her writing desk, at her own house, rolled as the instrument was on the trial, and said that she wished him “to look at that will and see whether certain clauses in it are right.” Taking the paper from her
The present statute relating to wills, and to their execution and attestation, declares that except in certain specified cases, no will is effectual to pass real or personal property, “unless the same is in writing, signed by the testator or by some person in his presence and by his direction, and attested by at least two witnesses, who must subscribe their names' thereto in the presence of the testator.” — Code, § 1966. The predecessor of the statute, borrowed from the English Statute of Frauds, 29 Charles 2, c. 3, § 5, related exclusively to devises of real estate, and authorizing persons of the age of twenty-one years, to devise real estate by last will and testament in writing;” provided, that such last will and testament is signed by the testator or testatrix, or by some person in his or her presence, and by his or her direction, and attested by three or more respectable witnesses, subscribing their names thereto in the presence of such de-visor.” — Clay’g Dig. 596, § 1. By the common law, wills of personal property were valid and operative,
It is an elementary rule of statutory construction, that reenacted statutes must receive the known, settled construction which they had received when previously of force ; for it must be presumed the legislature intended the adoption of that construction, or they would have varied the words, adapting them to a different intent. Sutherland Stat. Con., § 256. The rule has been of frequent application to the Code; in its construction, uniformly, the legislature has been presumed to have known the settled construction of statutes, of which there was a substantial reenactment, and to have intended the adoption of - such construction. — 1 Brick. Dig. 349, § 2. And to this rule, the statute of wills has been subjected; and in so far as it may be, a substantial reenactment of its predecessor, which was borrowed from the English Statute of Frauds, the known construction the English statute had received prior to its enactment here, has been followed. — Armstrong v. Armstrong, 29 Ala. 538 ; Bailey v. Bailey, 35 Ala. 687. The rule is founded in reason; when words have a known signification, when
It has long been settled, that a will may be written on several sheets of paper, as expressed in Schouler on Wills, § 284, “incorporated together in sense as one instrument.” In 1 Williams on Executors, 130, it is said by the author : “No provision is contained in the act as to wills written on several sheets, and, therefore, in this respect also, the decisions on the statute of frauds appear to be authorities ; and they have established, that if a will is written on several, or separate sheets, and the last alone be attested, the whole will is well executed, provided the whole be in the room, and although a part may not have been seen by the witnesses ; and that it is a question for the jury, whether all the papers constituting the will were in the room; and further, that the presumption is in the affirmative.” In Bond v. Sewell, 3 Burrows, 1773, the testator had written his will on t'wo separate sheets of paper, and a codicil on a third. All the sheets were shown to one of the witnesses ; the two other witnesses never saw the first sheet, and it was not upon the table at the time of their attestation. Lord Mansfield held, that the jury ought to have been instructed to presume that the first sheet was in the room at the time of the attestation. In Wikoff’s Appeal, 15 Penn. St. 290, it was said by Gibson, C. J.: “It is a rudimental principle, that a will maybe made on distinct papers, as was held in the Earl of Essex case, cited 1 Shower, 169. It is sufficient that they are connectedby their internal sense, by coherence or adaptation of parts.” The rule was applied b}^ the Supreme Court of Tennessee, in Gass v. Gass, 3 Hump. 278 ; and by the Supreme Court of Massachusetts, in Ela v. Edwards, 16 Gray, 99. We are not aware of any authorities in disputation of the rule ; it is but an extension to the section of the statute of frauds relating to wills, of the rule applied to other sec
The instrument, so far as it is depositive and testamentary, terminates on the last sheet, to which is affixed the-signature of the testatrix, and the attestation of the witnesses. If due execution is shown ; due execution including the signing by the testatrix and the attestation of the witnesses, the signature and attestation would, suffice for all the sheets composing the instrument though they were loose and detached. It is but' one signature, and one attestation, the statute contemplates ; and when the signature and attestation are found in the usual, natural place, they must be treated as unmeaning, vain and futile, or referred to all the sheets containing writing, which by their own internal sense, coherency and consistency, make the instrument in its entirety. Shouler on Wills, §§ 314-5, 337 ; 15 Jarman on Wills, 79; Martin v. Hamlin, 4 Strohb, 188 ; Ela v-Edwards, 16 Gray 91 ; Wikoff’s Appeal, 15 Penn. St. 281.
All the sheets of the instrument, as produced, are bound and fastened together. If the evidence was not clear and undisputed, that they were so bound and fastened at the time of the signing and attestation, a just and legal presumption would arise, that at that time, such was the fact and such the condition of the instrument. — Shouler on Wills, § 284, 1 Jarman on Wills, 79-84 ; Rees v. Rees, L. R. 3 P. & D. 84. In this case, Sir J. Hennen, considering what presumption arises from the plight and condition in which a testamentary paper is found after the death of the testator, observed : ‘ ‘If any theory consistent with the validity of the will can be suggested, which appears to the court to be as probable
The next inquiry, is, whether due execution — the signing of the instrument by the testatrix, and the attestation by the subscribing witnesses, is shown by the requisite degree of evidence. The burden of proving these facts rested on the proponent. The rule of the comm'on law prevailing in this State, as declared in Bowling v. Bowling, 8 Ala. 538, was, that on a contest in the court of probate of the validity of a will purporting to pass lands, the proponent was bound to call all the subscribing witnesses. But if any of these witnesses had become incompetent, or were dead, or without the State and of consequence without the jurisdiction of the court, the proponent was relieved from the duty of calling them; and could satisfy the burden resting upon him in. this respect by making proof of their handwriting. Since, the statute as we have seen, requires that wills of personal, or of real and personal property, must be in writing and executed with the same formalities. And the statute has provided, that all wills in writing, must be proved by one or more of the subscribing witnesses ; or if they be dead, insane, or out of the State, or have become incompetent since their attestation, then by proof of the handwriting of the testator, and of one of the subscribing
Wheeler, the subscribing witness produced, proves that the instrument was signed by the testatrix in his presence, and that in her presence he subscribed his name to the attestation clause. It may be, he is not distinct in his recollection of the presence of McNeill and Frohlichstein, or of their attestation and subscribing. It is not of their presence, attestation and subscribing, the statute contemplates he shall testify, but of the presence of the testatrix, and her signature, and of his attestation and subscribing in her presence.— Woodcock v. McDonald, 30 Ala. 411; Hoffman v. Hoffman, 26 Ala. 535 ; Moore v. Spier, 80 Ala. 129. If his evidence be capable of the construction, that he does not affirm that the instrument propounded is that which he attested and Subscribed, the identity is fully proved by the proponent, who was present at the execution. It is undoubted' Jaw, that any deficiency in the evidence of subscribing 'Witnesses as to the- due- execution or identity of thé instr.ü-' meht,’ may be supplied by the- evidence of other'wit-■ nesses. If this was not true, the validity of wills .would • often depend’, not upon the' existence of "facts rendering
. The statute does not require that a testator should inform the subscribing witnesses, that the instrument they are subscribing is his will, or give them anv information of its contents. — 1 Jarman on Wills, 80 ; 2 Green. Ev. 675 ; Leverett v. Carlisle, 19 Ala. 80 ; Garrett v. Heflin, 98 Ala. 617. Whether the testatrix made to the subscribing witnesses any declaration, or gave them any notice or information that the instrument was her will, is not material to, the validity and operation of the instrument, Or to the sufficiency of its due execution. The evidence was full and complete as to the due execution of the instrument; due execution including as we have said the signing by the testatrix, and the attestation and subscribing by the witnesses.
The next inquiry which is presented is, whether the instrument is not to be taken as an unfinished and incomplete testamentary paper, to the validity of which, extrinsic evidence that the testatrix intended it to take effect,-as it now stands,' is essential. The argument in support -of the affirmative of this inquiry is drawn principally, Af not exclusively, from the rules applied to papers operating, or intended to operate as testamentary dispositions of personal property; when the common law prevailed,.and such dispositions .were valid, though not signed by'the testator, or attested, by. witnesses... .The case of Boling v. Boling, 22 Ala. 826, occurring before the present statute became operative on which there is now much of reliance in support of the argument of the appellees, is an example. The effort was to obtain pro
The instrument was written by the testatrix- It bears internal evidence, as we have said, that it was the result
While this is admitted to be true of all testamentary papers, which do not bear upon their face evidence of being unfinished and incomplete, it is vigorously argued, that it is not true, and cannot be true of a paper like the present, which, it is said, contains “unnecessary and unreasonable blank spaces, sufficient to enable it to be changed and added to after execution, in such manner that the additions will not be distinguishable from t'he original text, and indeed so written for that purpose.” The argument overlooks the true inquiry, which is not as to the completeness of the paper, but as to the finality of the intent 'and purpose of the testatrix, manifested by the observance of the formalities of execution required by the statute. The rule is well settled that a will is not invalid by reason of having blank spaces left in the body of it. — 1 Jarman, 18 ; Harris v. Pou, 39 Md. 535. In Croemby v. Gibbons, 1 Robertson Ecc. 745, the subject was considered under the present English statute which requires that a will shall be 'signed at the foot or end thereof’ by the testator, a requirement not made by our statute, though it is the fact in relation to the present instrument. The court said:. “The statute directs that a will shall be signed “at.the foot or end thereof.” In this respect the statute has been carried into effect in the present instance to the letter, as well as in the spirit. The object is to prevent a space being left between the foot or end of the will and the signature of the testator, so as to admit of additions being made after execution. In regard however to blank spaces in the body of the will, the statute is silent. Were- I to intro--du.ce that,- asa circumstance to work a-nullity to- the will, I should have occasion to consider what would constitute a blank space, and. in some instances that might be an exceedingly nice question Here the blanks
The blank spaces in the body of this instrument, are readily accounted for, if account was necessary, or now within the scope of legitimate inquiry. The instrument is composed of numerous paragraphs, obviously written not continuously, but at different times in the process of its composition, until its completion. Until its completion, it was deliberative and reflective, not expressive of the final thought and will of the testatrix. When the gift of the residuum to the Church was first written, the thought of the testatrix may have been that she would describe all the real estate of which the residuum consisted; as it may have been that she would declare the value of the bonds and securities of which it consisted. But when the writing was completed, it must have occui’red to her that as she had made no specific gift or devise of real estate,' all her real estate would fall into the residuum, and that of consequence the filling of the blank was useless ; as all would pass without or with an accurate description of it. And so in reference to the bonds and securities of which she had made but a single bequest to- another; it must have occurred to her that-
There is much discussion rather of the possibility, than of the existence of alterations or additions to the instrument, made after execution,, and not distinguishable from, the text as it existed- at. the. .time'of'.execution. We have not discovered on an inspection of the instrument, any indication of such alterations or additions..' If they -exist, they would not- vitiate- the instrument-;
The questions we have decided, are all which it is probable will arise on another trial, rendering unnecessary any extended consideration of the instructions given, or refused, to which exceptions were reserved. According to the views, we have expressed, the instructions given at the instance of the contestants, numbered two, three, four, five, and six,' are erroneous and should have been refused. The first instruction given at the instance of the contestants, is erroneous in one respect. If it had asserted that on the proponent, rested the burden of proving the facts on which the jurisdiction of the court depended, i. e., in this particular case, the testamentary age of the testatrix, her death, and her inhabitancy of the county of Mobile at the time of her death; and further, the due execution of the instrument, it would have been free from objection. But the instruction proceeds to assert in most general terms, that on the proponent rested the burden of proving every fact essential to the validity of the will. Testamentary capacity, sanity, is of the essence of the validity of 'every testamentary disposition. Yet, when testamentary age and due execution are shown, it is presumed, and the burden of proving its absence is cast upon whoever may affirm it. — Stubbs v. Houston, 33 Ala. 555. Without this explanation, the immediate tendency of the instruction was'to_ mislead the jury.
The testamentary age of the testatrix and lier inhabi-tancy of the county of Mobile at the time of her death, the facts on which the jurisdiction to take probate of the will depended, were not matters of controversy;they were shown affirmatively. It would have been of consequence the duty of court below to have given the general affirmative instruction requested by the proponent, if that instruction had not referred to the jury the determination of the purely legal question of what facts were necessary to establish the signing and attestation of the will. — Riley v. Riley, 36 Ala. 495. Several of the special instructions requested by the proponent, and re
The decree of the court of probate is reversed, and the cause remanded for further proceedings in conformity to this opinion.
Reversed and remanded.