Pool's Heirs v. Pool's

35 Ala. 12 | Ala. | 1859

STONE, J.

The counsel for appellant have not pressed upon our consideration any questions save those raised by the refusal of the probate court to give the charges numbered 12 to 15, inclusive. Under these circumstances, we propose to make but brief allusion to the questions not pressed in argument.

The questions raised on the introduction of evidence, were all ruled adversely to the appellant, when this case was before this court, at June term, 1858. — See 33 Ala. 145.

What amounts to undue influence, which will set aside a will, has been frequently asserted, and must be regarded as settled in this State. — See Taylor v. Kelly, 31 Ala. 59, and authorities therein cited. Under the rule thus settled, the probate court rightly refused to give the charges numbered 1, 2, 3, 7, 8, 10.

[2.] Charges 4, 5 and 6 were abstract, and were rightly refused on that ground, if no other. — Shep. Dig. 458.

[3.] Charge number 9 is incorrect as a legal proposition. Undue influence is a mixed question; or rather, a conclusion of law from facts in proof.

[4.] Charge number 11 was correctly refused, under the principles declared in Stubbs v. Houston, 33 Ala. 555. Although the testimony, as to the signing by the witnesses in the presence of the testator, may not have been affirmative, and may not have excluded all doubt of such presence; still, that proof was a proper subject of consideration by the jury; and in such case, it cannot be asserted, as matter of law, that the jury must find against the execution of the will.

[5.] The remaining charges may be considered together. They severally question the right of a testator to direct his slaves to be carried beyond the limits of this State, that such slaves may there enjoy their freedom. Against this right it is urged, that it is opposed to the legislative policy of Alabama that slaves should be emancipated— have their value as property destroyed. We have not been able to find any statute, or legislative policy, which prohibits the removal of slaves from Alabama. We have, for many years, had statutes which prohibit, except in a particular way, the emancipation of slaves; and we have a legislative policy against the increase and residence, in this State, of free • persons of color. — Code, §§ 2044-47. Under these statutes, all attempts at testamentary emancipation, to take effect within the State of Alabama, have been declared void. — See Evans v. Kittrell, 33 Ala. 449, and authorities cited. The attempt, however, which is manifest in Mr. Pool’s will, rests on a very different principle.

In Atwood v. Beck, 21 Ala. 590, the question we are considering underwent a very full consideration by this court. The principal authorities bearing on the question were carefully examined, and this court arrived at the conclusion that, “ as between master and slave, aside from all statutory prohibition, the right of manumission exists, and is deducible, not only from the absolute ownership of the master in his slave as a chattel, but from analogous rules applicable to slavery as it has obtained in every civilized country.”

The case of Atwood v. Beck was decided seven years ago. It was followed in the case of Abercrombie v. Abercrombie, 27 Ala. 489. See, also, Tannis v. St. Cyre, 21 Ala. 449. Under these circumstances, even if we doubted its correctness as an original proposition, we would not feel at liberty to depart from it.

We have announced these conclusions, because we have been invited to their consideration by a full discussion of the question. We might have contented ourselves with the announcement, that there are at least some unobjectionable clauses in the will, which justified its probate. See Powell v. Powell, 80 Ala. 697; Taylor v. Kelly, supra.

The judgment of the probate court is affirmed.