31 Ala. 519 | Ala. | 1858
— There is an agreement in this record that the answer of Gondelock to the 5th interrogatory, may be regarded as the answer of Sims; and consequently, the 1st, 2d and 3d assignments of error present but one question. The objection to this answer is, that the subscribing witnesses stated their belief that the testator was of sound mind, and not their opinion that such was the case. In the connection in which this word is used by the witnesses, there is but little difference between the import of the words, belief and opinion. Neither implies actual knowledge; while each expresses a persuasion or probability of the truth of the proposition, based, in this case, on the evidence furnished by the appearance and
In the case of Roberts v. Trawick, 13 Ala. 68, 82, our predecessors said: “"We can not perceive on what principle the witness Whitron was permitted to give evidence of a will executed by the testator some twelve years anterior to the one in controversy, by which, it is said, the testator made an equal division of his property among-his children,” If this decision be adhered to as a precedent, it is decisive of the 4th, 5th and 6th assignments of error, for they all relate to the same question. The argument in this case attacks that decision, and we are asked to review it.
I have duly considered this question; and, while I would prefer to adhere to the above decision, believing as I do that no material injury in practice can grow out of it, my brothers are of a different opinion, and are in favor of overruling it. I do not myself believe it can be sustained, either on principle or authority. In the very paragraph from which the above extract is taken, the following language occurs: “ If a will be made in conformity to a fixed determination, entertained and expressed for years, this, it is held, is strong proof of capacity.” Couch v. Couch, 7 Ala. 519, is referred to as sustaining this proposition, and does sustain it. Now, with all due deference, we submit, is it not equally true, if a will be made which is variant from the testator’s determination, entertained and expressed for years, that this fact is admissible evidence against the capacity of the testator? If the conformity tend to establish the will, does not the non-conformity tend to impair its validity ? Now, what stronger evidence could be offered, either of this determination or its expression, than the incorporation of such intention in a former will ?
The case of Stevens v. Vancleve, 4 Wash. C. C. R. 262, is the only authority cited by our predecessors in support of their ruling in the case of Roberts v. Trawick, supra. In that case, the question was not quite the same as that here presented. Moreover, the court in that case not only excluded the former will, but also the uniform declarations of the testator, which he had made in favor of the devisee under his will. We agree with that court, in holding that each species of this evidence stands on the same principle, and if one is excluded, the other should be. We think, however, that both should he admitted; and this coui’t held in Roberts v. Trawick, supra, that former ■declarations of the testator were admissible.
We think our predecessors fell into error, in not discriminating between the admissibility and the sufficiency of evidence. It is certainly true, that a testator may change his mind: and the fact, of such change will not, per se, avoid his will. He may give his property to a stranger, to the exclusion of his children. These circumstances, however, are proper evidence for the jury, on the issue whether the paper propounded is in fact the will of the supposed testator. — Coleman v. Robertson, 17 Ala. 84; Gilbert v. Gilbert, 22 Ala. 529; and see other authorities on the brief of counsel.
For the error in refusing to receive evidence of the former will, the judgment of the probate court is reversed, and the cause remanded.