82 Ala. 352 | Ala. | 1886
— -This is the second .appeal in ■ this case, reported as Jaques v. Horton, 76 Ala. 238.
The present suit grows out of an attempt to establish and probate an alleged will of one Cantwell, which is charged to have been lost or destroyed. The entire testimony offered to show the contents of the will is oral, and consists of the viva voce examination of one of the subscribing witnesses ; the only witness who professes to have read - the will, or heard it read.' True, there was testimony of other witnesses tending to prove conversations and admissions made by decedent, which, to some extent, corroborated this main witness ; but he alone undertook to describe the will, and its devises and bequests, in detail. It-is contended for appellant, that when, as in the case of a will, the law requires two subscribing witnesses as a condition of its validity, its contents, in case of its loss or destruction, can not be proved by a single witness. The authorities, in - the. absence of statutory requirement, are opposed to this view. See the authorities collected in 1 Redf. on Wills, 348, note 14; Dan v. Brown, 4 Cow. 483; Steele v. Price, 5 B. Monroe, 58; Dickey v. Malechi, 6 Mo. 177; Jaques v. Horton, 76 Ala. 238.
We have, had much difficulty in arriving at a satisfactory solution of this question ; and if it were one of first presentation, we are not prepared to affirm our satisfactory conviction of the soundness of the reasoning on which the rulings of the courts are rested. This question has been several times before the courts, and, notably, in the matter of the will of the renowned Lord St. Leonards — Sir Edward Sugden — in the Court of Appeal in England. The leading opinion was delivered by Coekburn, C. J., and was fully concurred in, in separate opinions, by Jessel, M. R., and by Lords-Jus tices James and Mellish, aud by Baggallay, J. A. It was a great case ; great because the subject was the holograph of Sir Edward Sugden, generally conceded to have been the most learned English jurist of the present century, if not of all centuries; great, by reason of the large estate it disposed of; and greater, because of the illustrious tribunal before which it was heard. The unanimous opinion of that High Court of Justice is epitomized in the following head-note : “ When the contents of a lost will are not completely proved, probate will be granted to the extent to which they are proved.” — Sugden v. Lord. St. Leonards, 1 L. R. Prob. Div. 154. To the same effect are Steele v. Price, 5 B. Monroe, 58; Jackson v. Jackson, 4 Mo. 210; Dickey v. Malechi, 6 Mo. 177; Dickinson v. Stidolph, 11 J. Scott, N. S. 341; Foster v. Foster, 1 Addams, 462.
The testimony was sufficient, as shown by the verdict of the jury, to establish every provision of the will, except the name and identity of a legatee to whom a pecuniary bequest of five hundred dollars was given. Thomas’ testimony seems to be as full that there was such bequest, as it is of the other provisions of the will. The only apparent imperfection in the proof of this item is, that the witness could not remember nor identify the name and person of the legatee of this particular bequest. There is a residuary clause in the will; and it would seem that the testator as clearly and fully intended that the residuary legatee should not have this five hundred dollars, as that the other and proven provisions of the will should take effect. Where shall this five hundred dollars go ? If it be decreed to the residuary legatee, it would seem he would thereby receive five hundred dollars more of the estate than the testator intended he should have; and this, not because the will
Affirmed.