45 So. 902 | Ala. | 1908
This is an appeal by .the contestant, in a proceeding in the probate court to admit to probate the will of Joseph Hastings, deceased. The point is made by the appellee that, as the bill of exceptions was not signed Avithin 20 days and the hill of exceptions does not shoAv that the time was extended by the judge in Avriting, it cannot be considered. This point is not well taken, as the record states that the order extending the time was made by the judge, and sets out the order, as made, extending the time until May 2, 1907, and the certificate of the judge to the correctness of the record
The first assignment of error insisted on by the appellant is No. 8, to the action of the court in sustaining the objection to the question to the witness McBride as to whether she addressed the letter to Hastings as she always spoke to him, and, if not, why. This witness had been examined in chief, and on cross-examination had been asked if a letter shown to her was written by her, which she answered in the affirmative, after which she was further examined on redirect examination, and she had also testified as to what she usually called Hastings; and on the next day she was recalled, when this question was propounded to her. The letter does not appear in the record. It rested within the discretion of the court as to whether any further examination should be permitted on that subject.
The court erred in giving charge No. 1, on the request of the proponent. The charge authorizes the jury to adopt any theory which may be suggested, whether supported by the evidence or not. The jury cannot travel beyond the evidence, in order to determine what is probable. The theory should be, not only consistent with the validity of the will, but consistent with the evidence. The jury cannot supply “missing links in the testimony by mere conjecture.” — Smith, Poley & Co. v. Jernigan. 83 Ala. 256, 259, 3 South. 515. The charge also invades the province of the jury".
Charge No. 2, given at the request of the proponent, states a correct principle of law. — Taylor v. Kelly, 31 Ala. 59, 68 Am. Dec. 150; Stubbs v. Houston, 33 Ala. 555, 566; O’Donnell v. Rodiger. 76 Ala. 223, 52 Am. Rep. 322; Kramer v. Weinert, 81 Ala. 414, 416, 1 South. 26; Burney v. Torrey, 100 Ala. 157, 14 South. 685, 46 Am.
There was no error in the giving of charge No. 4, at the request of the proponent. In the outset the burden is upon the contestant to show incompetency at the time of the making of the will and it is true that, when he has proven insanity of a permanent and fixed nature, it is presumed to continue, and the burden would be upon the proponent to show the existence of a lucid interval at the time of the execution of the will; but the burden is not shifted by showing merely that he “was at times wholly insane, * * * but, at other times, had sufficient mental capacity.” — Saxton and Wife v. Whitaker’s Ex’r, 30 Ala. 237; O’Donnell v. Rodiger, 76 Ala. 223, 227, 228, 52 Am. Rep. 322; Eastis v. Montgomery, 95 Ala. 486, 490, 494, 11 South. 204, 36 Am. St. Rep. 227; Johnson v. Armstrong, 97 Ala. 731, 736, 12 South. 72 ;Murphree v. Senn et al., 107 Ala. 424, 428, 18 South. 264. If the con
The court erred in giving, at the request of the proponent, charge No. 8. The whole object of the enactment of section 364 of the Code of 1896 was to enable parents to repair the wrong they had done, by marrying and thus clothing their offspring with legitimacy. There could have been no intention to require them to publish their shame before marriage, so as to make their child legitimate by marriage. The use of the word “reputed” was intended merely to dispense with absolute proof of paternity, so that, if the child is “regarded,” “deemed,” “considered,” or “held in thought,” by the parents themselves, as their child, either before or after marriage, it is legitimate. This is shown by their treatment of the child after marriage, as well as before. It is a matter that concerns only the child and themselves, and it could make no difference, in effectuating their intentions, whether or not, before their marriage, the public had been made aware of the paternity of the child, so that it could be said to have been “imputed,” in the sense of being generally considered by the public, as their child.
Charge No. 9 was also improperly given. In addition to what has been said, the requirment of “preponderance of the evidence” has been frequently condemned by this court. — Southern Railway Co. v. Riddle, 126 Ala. 244, 28 South. 422.
Charge No. 10, given at the request of the proponent, was an invasion of the province of the jury, and should have been refused. — Carter v. State, 33 Ala. 429; Fra-ziers Ex’r v. Praytor, 36 Ala. 692, 695; Crosby v. City Council of Montgomery, 108 Ala. 499, 508, 38 South. 723; Higginbotham v. Higginbotham, 106 Ala. 315, 318,
The decree of the court is reversed, and the cause remanded.
