Mosser v. Mosser's

32 Ala. 551 | Ala. | 1858

STONE, J.

The controlling question in this case hinges on the inquiry, whether the instrument bearing date June 30,1854, is a deed or a will. The bill of exceptions states, in effect, that the property disposed of by that instrument was the separate estate of Mrs. Mosser. This being the case, unless said instrument operated a disability, she had the unquestioned right to dispose of such separate estate by will, whether it was created by contract, or by our statutes. — Wells v. Bransford, 28 Ala. 200; Code, §1989.

[2.] We hold the instrument of June 30, 1854, to be a will, for the following reasons: 1st, said gift was, by its express terms, not to take effect, and said property was not to vest in the children, until her death; 2d, until that event, the property was to be held, owned and enjoyed by her; 3d, Mr. Mosser was, by the terms of the instrument, to be appointed her executor, was directed to keep the property together for two years after her death, ££ until all of ber estate can [could] be wound up, when the said gifts are [were] to be distributed.” These provisions are clearly testamentary; and although there are some clauses in the writing, which, if they stood alone, would stamp its character as a deed, yet, when the entire instrument is considered, we think we carry out the intentions of the parties by pronouncing it a testamentary paper. — Habergham v. Vincent, 2 Vesey, Jr., 204; Allison v. Allison, 4 Hawks, 141, argument of counsel; Walker v. Jones, 23 Ala. 448; 1 Jar. on Wills, 11, 12; Elmore v. Mustin, 28 Ala. 309.

The instrument of June, 1854, being a will, it results that it was revocable. The will of January 25, 1855, if valid, expressly revoked the former one.

[3.] If Mrs. Mosser was of sound, disposing mind and memory, she had a clear right to dispose of her property as she pleased. If the disposition was even “unnatural and inequitable,” that would not, per se, destroy the validity of the will. The demurrer was piroperly sustained. — See principles settled in Gilbert v. Gilbert, 22 Ala. 529.

[4.] As a general rule, facts only can be given in evidence to a jury. Dangerous illness, or that a particular person was at the point of death, cannot be proved by genera] report in the village. — 1 Greenl. Ev. § 124; Corley v. The State, 28 Ala. 22.

[5.] We might, for the purposes of this case, concede that Mr. Cato was interested to establish this will. Interest in the event of a suit does not disqualify a witness, “unless the verdict and judgment would be evidence for him in another suit.” — Code, §2302.

[6.] The last charge asked, was correctly refused. Such “ mistaken notion,” as therein supposed, cannot have the effect of avoiding a will. — See Gilbert v. Gilbert, supra; 1 Jar. on Wills, (2 Am. ed.) 58-9.

The other rulings of the court were free from error, under the construction we have placed on the instrument of June, 1854.

Judgment of the probate court affirmed.