18 Colo. App. 330 | Colo. Ct. App. | 1903
. ' A paper purporting to be the last will and testament of Caroline M. Rice, deceased, dated the 21st day of August, 1896, together with a codicil, asserted to be her act, dated the 17th day of August, 1899, was offered for probate in the county court by the appellees, who were named in the instruments as executors of the will. The appellants, Edward C. Rice, a son of the decedent, and Caroline E. Rice, his wife, who alleged herself to be a devisee under another will’ of Caroline M. Rice, made, as averred, later than the will presented, and before the codicil, appeared and objected to the admission of the will and codicil to probate, on the grounds that at the time of the execution of the writing purporting to be a codicil she was of unsound mind, and incapable of understanding its contents, and that the will and codicil which were offered had been revoked by the other alleged will; and asked that probate of the instruments presented be refused, that proof be taken of the contents of this supposed will, and that it be admitted to probate as the last will and testament of the decedent. What the judgment of the county court was we are not ad^ vised; but an appeal from it was prosecuted-by-the losing parties to the district court, where' upon 'a trial before a jury, the will and codicil offéréd by the appellees, were sustained and ordered 'to be admitted to probate. " ■■ '
The abstract furnished us by the contestants gives us none of the evidence introduced,’ except'á portion, or, possibly, the whole, of the cross-examina
“The proponents first introduced the subscribing witnesses to the will dated August 26, 1896, and the codicil thereto dated August 17, 1899, which will and codicil were offered for probate in this cause by proponents as the last will and testament of Caroline M. Rice, deceased. Said subscribing witnesses gave evidence tending to prove the execution of said will and codicil in the manner required by the statute, and tending to prove that at the time of the execution of said will and codicil respectively, the said testatrix was of sound mind and memory. Thereupon the said will and codicil were offered in evidence.”
In the cross-examination referred to, counsel for the contestants, after exhibiting to the witness, Caroline E. Rice, certain letters which she identified as having been written by her, sought to prove by her portions of their contents. In the course of her examination upon one of the letters, her counsel made the following objection: “I object; if the gentleman is going to introduce that letter in evidence, he should do so and let the witness see it and refresh her memory as to what she said.” This objection was intended to apply to the same course of examination upon each of the letters. The objection was overruled, and the letters themselves were never introduced. Under a ruling of this court in Rose v. Otis, 5 Colo. App. 472, the letters themselves were the best evidence of their contents, and upon proper objection, the testimony should have been excluded. But we think the objection which was made, was insufla
Contestants’ counsel sought by motion, after the cross-examination was concluded, to compel the proponents to introduce the letters; but his motion was denied. We know of no rule by which a party may be forced to introduce evidence. If counsel desired the letters in evidence they were there, and he could have offered them himself.
Complaint is made of certain of the instructions. The exception to the instructions is as follows: “To the giving of which instructions, Nos. 1 to 9 inclusive, and each of them, contestants by their counsel then
Affirmed.