33 Ala. 555 | Ala. | 1859
the question of the onus of proof as to testamentary capacity, the authorities are conflicting: many of them holding, that it is for the proponent of a will to prove the sanity of the testator,
The prima-facie intendment in favor of testamentary capacity, when an issue for the contestation of a will is made up, is consistent with the presumption, generally made, that men are sane ; and is required by the principle enunciated in the recent decision of this court in Saxon v. Whitaker, supra; and is the only rule which can harmonize with the law allowing the admission of a will to probate upon proof of handwriting, when the attesting witnesses are dead, insane, or out of the State, or have became incompetent since the attestation. We decide, therefore, that it was not incumbent upon the proponent to affirm the testator’s sanity in making up the issue; and that there was error in the instruction to the jury, that the onus of proof as to the question of sanity was upon the proponent.
But one of the charges assumes the position, that • although the mortgage may not, per se, revoke the will; yet it did have that effect, if it was made to the sole beneficiary under the will, and such beneficiary procured it because he believed the will to be invalid, and the testator executed the mortgage for the same reason, intending that it should revoke and be substituted for the will. This charge does not present any of the cases of revocation mentioned in article 1, chap. 2, title 4, part 3 of the Code. Excepting the cases provided for in that article, section 1613 of the Code prohibits the revocation of a will, unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator himself, or some person in his presence, or by his direction, or by some other will in writing, or some other writing of the testator, subscribed and attested according to the requisitions of the section prescribing the mode of
In Taylor v. Kelly, 31 Ala. 59, we said, if the testatrix “had memory and mind enough to recollect the property she was about to bequeath, and the persons to whom she wished to will it, and the manner in which she wished it to be disposed of, and to know and understand the business she was engaged in, she had, in contemplation of
There may be a competency to make a will, without such capacity as would enable a man to transact the ordinary business of life. Feebleness of intellect, or the childishness and fretfulness of old age, not amounting to mental unsoundness, might make one unfit for the active business transactions of life, which would require prompt action upon newly presented subjects, with combinations to which the mind was unaccustomed; and yet there might be a full capacity to make a will. The rule which would make a capacity for the management and transaction of business generally the standard of testamentary capacity, is repudiated in Kinne v. Kinne, 9 Conn. 102, and Harrison v. Rowan, 3 Wash. C. C. R. 586.
Our argument does not interfere with the decision in McElroy v. McElroy, 5 Ala. 81, which seems to analogize the capacity to make a will with that which is necessary to make a contract; for it is conceivable, that one might have a sound mind, and be competent to make a contract, and yet be unfitted for engagement in the active duties of the business world. Certainly, an incapacity to transact the ordinary business of life would afford ground for an argument to the jury, but it cannot, consistently with reason or law, be made the standard of testamentary competency.
We think the points decided will cover the points likely to arise upon another trial, and we therefore decline to pass upon the other questions presented.
The judgment of the court below is reversed, and the cause remanded.
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