Venable v. Venable

| Ala. | Jan 20, 1910

SIMPSON, J.

— The appellant propounded a paper, purporting to be the will of TV. R. Venable, for probate. The appellee contested the same, and the matter was submitted to a jury according to law. The verdict of the jury was against the validity of the will, and decree was entered in accordance with the verdict. A motion for a new trial was overruled.

It is settled, according to the statute and practice in this state, that the action of the probate court, in overruling a motion for a new trial, is not revisable in this court. — Code 3907, § 2846; Beatty v. Hobson, 133 Ala. 270" court="Ala." date_filed="1901-11-15" href="https://app.midpage.ai/document/beatty-v-hobson-6519481?utm_source=webapp" opinion_id="6519481">133 Ala. 270, 31 South. 946. Section 2865 of the Code of 1907 does not override this prinicple. The jury having rendered its verdict, the probate court could not have rendered any other decree than that which was rendered. Hence the assignments going to the correctness of the verdict, or the action of the court on motion for a new trial, cannot be considered.

The three witnesses whose names were signed to the paper testified to the execution of the will, but evidence was introduced by the contestant tending to impeach the credibility of said witnesses. Hence the matter of their credibility, and as to whether the will was the act of the deceased, or a forgery, were for the jury to determine.

The witness N. B. Campbell testified that he was bookkeeper for the First National Bank for 10 or 12 years; that his duty was to keep the accounts of customers, charge the checks and enter the deposits; that in that position he became familiar with the signature of W. R. Venable; that, while he had not seen said Venable write, yet those checks were charged to his account and paid, and most of them were afterwards returned to Venable; that he knew what the bank always accepted as his signature; that he was familiar with the card that was accepted when the account was opened, and that was given him to go by; that he had been handling this signature for five years or more. This testimony qualified the witness to testify as to the genuineness of the signature, and the fact that, on cross examination, he stated that, for the purpose of refreshing his memory, after he had expressed the opinion that the signature to the paper was not that of Venable, he had examined the checks and other papers, did not render him incompetent to testify. — Johnson v. State, 35 Ala. 370" court="Ala." date_filed="1860-01-15" href="https://app.midpage.ai/document/johnson-v-state-6506638?utm_source=webapp" opinion_id="6506638">35 Ala. 370; Gibson v. Trowbridge Furniture Co., 96 Ala. 357" court="Ala." date_filed="1892-11-15" href="https://app.midpage.ai/document/gibson-v-trowbridge-furniture-co-6514814?utm_source=webapp" opinion_id="6514814">96 Ala. 357, 11 South. 365; Nelms v. State, 91 Ala. 97" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/nelms-v-state-6514088?utm_source=webapp" opinion_id="6514088">91 Ala. 97, 9 South. 193; 17 Cyc. 159, 160, 161.

It is next insisted that Charge No. 2 given at the request of the contestant is erroneous, because it requires that the will, to be valid, must have been attested by three witnesses, in place of two, as required by the statute. The court had just charged the jury that two attesting witnesses were sufficient to the validity of the will. The testimony of all the witnesses for the proponent was that the will was executed in the presence of the three witnesses named in the charge, and so that it was either executed in their presence and attested by them, or not attested at all. Charges must be construed with reference to the testimony. — Carter v. Chambers, 79 Ala. 223" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/carter-v-chambers-6512357?utm_source=webapp" opinion_id="6512357">79 Ala. 223; McDonald v. Montgomery Street Ry., 110 Ala. 161" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/mcdonald-v-montgomery-street-railway-6516550?utm_source=webapp" opinion_id="6516550">110 Ala. 161, 178, 20 South. 317. The most that can be said in criticism of the charge is that it may have been misleading. It could have been corrected by an explanatory charge. There was no error in giving it.

There was no error in giving charge No. 7 at the request of the contestant. There was evidence tending to impeach the testimony of the witness J. B. Lewis, and the charge asserts a correct principle of laAV.

Charge 8 asserts a correct principle of law, and Avas properly given. It would be hypercritical to hold that, because the paper propounded is mentioned in the charge as a “avíII,” it is contradictory in asserting that the paper is already proved to be the will of the decedent, and still has to be proved.

There was no reversible error in the giving of charge 10. It may be argumentatiA’C or misleading, but does not call for further criticism.

Charge 11 asserts a correct principle of laAV. It does not authorize the capricious rejection of testimony, nor does it assert that if there is evidence tending to impeach, etc., but if the general reputation of the witness has been impeached; that is, if the evidence justifies the finding that his character is such that he is unAvorthy of belief, in other words, successfully impeached. — Smith v. State, 118 Ala. 117" court="Ala." date_filed="1897-11-15" href="https://app.midpage.ai/document/smith-v-state-6517551?utm_source=webapp" opinion_id="6517551">118 Ala. 117, 24 South. 55.

There was no error in giving charge 13.

There was no error.in giving charge No. 16, at the request of the contestant. The proponent had introduced, without objection, testimony as to statements made by the deceased subsequent to the supposed execution of the will, with the evident purpose of showing that he recognized said will. This being the case, the contestant had a right to meet said testimony by proof of other statements made by the intestate tending to show that he had not made any will at all, and necessarily to have the same considered by the jury.

There was no error in giving charge 17, on request of the contestant. — Griffin v. Working Women’s Ass’n, 151 Ala. 597, 44 South. 605.

As to the cross-appeal the matter of taxing the estate with costs is largely in the discretion of the court, and this court will not disturb his ruling in this case.

The decree of the court is affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.