Bruce v. Sierra

57 So. 709, 175 Ala. 517, 1912 Ala. LEXIS 127

• Court: Supreme Court of Alabama
• Decided: February 8, 1912
• Status: Published

Opinions

ANDERSON, J.

Section 6174 of the Code of 1907 provides that a will otherwise regular can be revoked only by the destruction of same, with the intention of revoking it, or “by some other will in writing, or some other writing subscribed by the testator, and attested as prescribed in the first section of this article,” i. e., section 6172. It is therefore plain that the revoking must be executed with all due formality, and the compliance Avith every legal requirement must appear affirmatively as follows: (1) The will must be in writing; (2) it must be signed by the testator, or some one for him; (8) it must be attested by at least two witnesses; (4) the witnesses must subscribe their names in the presence of the testator.

We think there was evidence from which the jury was authorized to find the existence of all of the essential facts tending to show the legal execution of a subsequent will by Mrs. Bruce and a revocation of the one undergoing contest. It is true the witness Inge was not absolutely positive in his testimony, but qualified it with to his belief and the best of his recollection; but this Avas not the mere expression of an opinion in the proper sense of the term. It was the assertion of the existence of facts, qualified by the admission that the recollection of the witness was not clear and distinct, but ■ that he may be ■ mistaken. This qualification, though weakening the force of the testimony, and, in the opinion of the jury, may have deprived it of any value as evidence, did not authorize the rejection of same; it was for the jury alone to determine the weight of same. — Head v. Shaver & Adams, 9 Ala. 791; 1 Greenl. on Ev. § 440 ; A. G. S. R. R. Co. v. Hill, 99 Ala. 520, 9 South. 722, 30 Am. St. Rep. 65; Elliott v. Dyche, 80 Ala. 378.

It has been suggested in brief of appellees’ counsel that Inge did not testify that the will was signed by the witnesses in the presence of the testatrix. This he did not do in exact words; but he stated that Mrs. Bruce executed the will, and that it was “properly attested.” If it was “properly attested,” then it was attested by two witnesses in the presence of the testatrix. Whether the opinion of Inge, who was a lawyer, was or Avas not competent as expert evidence matters not; for the conclusion or opinion of a layman or of a nonexpert was material proof of the proper execution of the will, and, if improperly proven, the opposing party should have objected thereto at the time, and not sit silently by and permit the contestant to prove material facts by conclusions and opinions, and then subsequently move to exclude all of the testimony Avhich made a case for the jury, simply because some one link thereof had been proven by opinions or conclusions, and to which no objection was interposed at the time of deliverance. Had Inge not qualified as an expert, he may have done so upon objection to his opinion upon the proper ground; or, if his testimony was an opinion or conclusion, upon objection thereto, he may have stated the facts or details upon Avhich he based said opinion or conclusion. At any rate, we think all established rules of evidence, as well as fairness, forbid the granting of a general motion to exclude all the evidence, which makes out a case for the jury, simply because some of it, though consisting of material facts, was, perhaps, subject to specific objection, owing to the manner of rendering same, but Avhich said objection was never interposed. The probate court improperly excluded all of the contestants’ evidence, and Avith this evidence before the jury the proponent Avas not entitled to the general charge.

It is true there was no proof of the contents of the second or last will; but the jury could infer from the evidence that the testatrix executed a will subsequent to the one offered for probate, and if this Avas true this last Avill Avas a revocation, under the statute, of the one offered. — Section 6174 of the Code of 1907. . The court, in speaking of this statute as it existed in the Code of 1867, in the case of Barker v. Bell, 49 Ala. 284, said: “The point is made for the proponents that in order to revoke a will, it is not sufficient that the existence of a subsequent will should have been found by the jury; but it must be found different from the former, with the nature of the difference. The proposition is not correct. One of the Avays of revoking a will is by making a subsequent one. — Rev. Code, § 1932.”

Whether this Avas or was not the proper construction of the statute originally, we cannot now decide, as it Avas brought forward in the succeeding Codes as so construed, unchanged up to and included in the Code of 1907. It also received the same construction in the cases of Wilson v. Bostick, 151 Ala. 536, 44 South. 389, and Allen v. Bromberg, 147 Ala. 317, 41 South. 771. “It is an elementary rule of statutory construction that reenacted statutes must receive the known, settled construction which they had received Avhen previously of force; for it must be presumed the Legislature intended the adoption of that construction, or they would have varied the words, adapting them to a different intent. — ■. Sutherland on Stat. Con. § 256. The rule has been of frequent application to the Code, in its construction. Uniformly the Legislature has been presumed to have known the settled construction of statutes, of which there was a substantial re-enactment, and to have intended the adoption of such construction. — BrickelPs Dig. 349, § 2. And to this rule the statute of wills has been subjected; and, in so far as it may be a substantial re-enactment of its predecessor, which was borrowed from the English statute of frauds, the known construction the English statute had received prior to its enactment here has been followed.” — Barnewall v. Murrell, 108 Ala. 366, 18 South. 831.

The case of Knox v. Knox, 95 Ala. 495, 11 South. 125, 36 Am. St. Rep. 235, is in apparent conflict with the authorities, supra, but a careful reading of the opinion will demonstrate that the holding was largely induced by a failure of the bill of exceptions to disclose all the evidence. Moreover, only so much of the will of 1883 as was sought to be established, and which was claimed to have not been revoked by the will of 1889, was that part which purported to be the execution of a power under certain deeds to the testatrix, Mrs. Knox. The court said: “Looking at the two instruments together, we cannot say the one executed in 1883 was not a testamentary exercise of the power authorized by the deeds of trust referred to; and there is certainly nothing in the evidence to show that the power thus exercised Avas subseuently revoked.” For aught that appears, the will of 1883 was a mere devise under the power of the deeds of the trust property, and had no relation to her individual property, and Avas the mere execution of a power under sections 3426 and 3429 of the Code of 1907, and the last will and codicil may have related to her estate not included in the trust estate, and may have specifically preserved the former will, in so far as it was an attempt to execute the. power conferred by the deeds therein referred to in said will of 1883. On the other hand, if this case is in conflict with the other cases construing the statute, it should be overruled as being opposed to the statute as then construed, and which cannot be upheld upon the theory that the readoption of the statute in a subsequent Code Avas a ratification of the changed construction of same, as the statute was not construed or considered in said Knox Oase. It was not referred to, and seems to have entirely escaped the attention of the court. Upon another trial, there will be no impropriety in permitting proof of the extent and value of the testatrix’s estate.

The judgment of the probate court is reversed, and the cause is remanded.

Reversed and remanded.

Doavdell, C. J., and Simpson, McClellan, Sayre, and Somerville, JJ., concur.