Conoly v. Gayle, 61 Ala. 116

Conoly v. Gayle

61 Ala. 116 | Ala. | 1878

MANNING, J.

1. Though very inartificially written, the instrument proved can have effect and operation as a will, if (as the jury have found) Mrs. Gayle executed it and procured the subscribing witnesses to attest it, as her will. It is not vitiated by the irrelevant recitals in it.

2. The law of this State requires no more than two subscribing witnesses to a will, of either real or personal property, and this instrument having been attested by two persons who had no interest in Mrs. Gayle’s estate, either as heir, distributee, legatee, devisee or otherwise, the fact that a third person who did stand in such relations, also signed it as a witness, can not impair its validity.

3. The instrument alleged to be the will of Mrs. Gayle, if operative as such, gives her property to all her children equally. One of these, Bebecca, was offered as a witness at the trial, and contestant “ objected to the competency of this *123witness on the ground that she is .... a legatee or devisee under the will propounded for probate, and interested in the establishment” of it, which objection was overruled. By section 3058 (2704) of the Code of 1876, it is enacted that “ in other than criminal cases there must be no exclusion of any witness because he is a party, or interested in the issue tried, — except that neither party shall be allowed to testify against the other, as to any transaction with or statement by any deceased person, whose estate is interested in the result of the suit,” &c. This exception does not disqualify the witness from testifying about other matters than such statements or declarations; and for this reason, the objection to her testifying at all, was properly' overruled.— O’Neal v. Reynolds, 42 Ala. 197.

4. After giving some other testimony, this witness was asked: “ Do you know anything of a paper written by or at the request of Mary L. Gayle in her life-time, purporting to be her will ?” And it was stated by counsel when the question was asked, that he would prove the loss of the original will; and he asked leave for convenience sake to examine the witness now as to its contents, subject to the decision of the court, upon the proof of loss, to be made by other witnesses. Upon this statement of counsel and “ for convenience in conducting the trial,” (as the bill of exceptions recites), the court allowed the question to be asked. Contestant objected to the question, and excepted to the ruling of the court. The assignment of error upon this, relates not to the competency of the witness to testify, but solely to the order in which the evidence should be admitted, contestant insisting that the loss of the paper should be established, before testimony was given of its contents. A similar exception for the same reason, was subsequently taken to the testimony of Miss Adria Gill, afterwards Mrs. Tice.

In regard to the general rule on this subject, there can be-no doubt. And in the cases of alleged lost wills, it should seldom be departed from. The loss of the instrument ought except in rare instances, to be proved before evidence is received of the contents. But such matters are within the control of the presiding judge. Beasons may exist which would justify him in allowing a suspension of the rule for a particular occasion; and his action in doing so, is not subject to reversal here.

5. To the question as to the condition of her mother’s mind, put to the witness, Bebecca, no response appears to have been made; and no legal proposition can be raised for *124■discussion here, upon an objection to an unanswered interrogatory.

6. When Anna M. Gayle, the proponent in this case, was offered as witness in it, the contestant objected to her competency to testify: 1st. Because “ she was proponent of the alleged lost will.” 2d. Because she was not a subscribing witness to it; and 3d. Because she was interested as devisee or legatee in the establishment of it. The objection was overruled and contestant excepted.

As we hape before seen, the statute makes a party or person interested, competent to testify in their own behalf— except in relation to “ statements by or transactions with the deceased,” &c. The objection was not to evidence from witness, of such statements or transactions, (she gave no such evidence) but to her being a witness at all. There was no error in overruling that objection.

7. When a person dying, leaves an instrument duly executed as a will, and intended to operate as such, — and it is afterwards lost or destroyed, it is only by other evidence oral or written that proof of it can be made. Evidence of the execution and loss being made in this case, objections to the admission of the letter written by testatrix in which she speaks of having made her will and of those present when she did so, and to oral testimony of its contents, can not be sustained.

8. Upon cross-examination, proponent was shown a certified copy of a bill in chancery she had filed, and of her affidavit verifying it, and asked if she did not swear thereto knowing that the bill contained an averment that her mother, Mary L. Gayle, died intestate. She answered that she did. This copy of the bill was by “ expressed agreement and understanding with proponent,” to be read in evidence; but contestant’s counsel declined to permit this to be done, till the case was closed on proponent’s part. Thereupon the court, upon motion of the latter, required the bill to be read then; which was done accordingly, against the objection and exception of contestant. And the cross-examination being finished, proponent first, and the solicitor who wrote the bill afterwards, explained as witnesses, the reasons why they, respectively, believed, when the bill was prepared, that Mrs. Gayle had died intestate.

A defendant may, upon cross-examination, prove by his adversary’s witness the signature to a document he intends afterwards to introduce, and withhold it until plaintiff’s evidence is in. But in this case contestant went further. To *125his interrogatories containing the inquiries, proponent testified that she had sworn — not merely to the truth of a bill the contents of which were not made known to the jury, but that she swore to it knowing that it contained an averment, that she, whose alleged will, the witness was then endeavoring to establish, had died without leaving a will. And this answer was made upon a prior agreement that the copy of the bill should be put in evidence; so, of course, that it might be seen under what circumstances and in what terms, the averment was made. ¥e think the court did not err in requiring the bill to be then read.

9. The object of introducing this evidence was to create in the minds of the jury distrust of the testimony of proponent. The other portions of the chancery record, composed in part of the answer of contestant, Conoly, the agreement of counsel and the decree of the court, were wholly irrelevant for that purpose, and to the issues — then to be tried by the jury —to-wit: whether Mrs. Gayle had left a will or not, and what its terms were, if she did. The introduction of all this record could only have confused the jury. There was no error in excluding such documents.

10. Nor was there any error in refusing to admit the record of the proceedings in bankruptcy against Reese D. Gayle. As purchaser of his interest in lands of Mrs. Gayle’s estate, Conoly had already been permitted to intervene, as contestant, and it was only to entitle him to take this position that the record from the bankruptcy court could be of any use.

We find no error in the rulings of the judge of probate upon any point that is presented for our consideration by the exceptions and assignments of error.

Let the judgment of the Probate Court be affirmed.