Hall's Heirs v. Hall's Executors

38 Ala. 131

• Court: Supreme Court of Alabama
• Decided: June 15, 1861
• Status: Published

Opinion

R. W. WALKER, J.

By the will in cohtroversy, ¡a legacy of .two hundred dollars was given -to ;the witness Browne. After the will had been admitted to probate in •the probate court, but before the bill in "this case was filed, the executors voluntarily paid Browne hisdegacy, and took from him a receipt iniull therefor. >In this state of the case, '•Browne’s deposition was taken by the defendants ; the complainants in filing their cross-interrogatories objecting to-the competency of the witness, “.on..the ground that he was interested in the result of the suit, and that the'verdict ancl judgment would be evidence for .him .in another suit”. At the December term, 1859, the defendants obtained leave to re-examine ihe witness on the same interrogatories. This order was -.doubtless obtained with the view of restoring his competency, if ho should be deemed incompetent, and then retaking his deposition. It was then agreed by the complainants, that the defendants might do whatever could be legally done to restore the competency of the witness and that if the witness was rendered competent, his deposition already taken should-“for all purposes be taken and treated as if taken after. such restoration of his competency.” Thereupon, Robinson & Jones, the solicitors for the defendants, with the consent and approbation of the witness, repaid the said two hundred dollars, with interest, to the executors, in discharge of any claim they might have on Browne, and released Browne, the executors, and the estate of Hall, from all liability to repay or account for the money. Browne approved and adopted the payment, and released the executors -from any claim on account of said legacy ;. and the executors accepted the payment, and released Browne from all liability to pay back or refund the money paid to,-him. as legatee.

"We will not’-in quire whether Browne was a competent .witness, without the repayment of the legacy which the executors -had-voluntarily paid over to- him ; for, however that may be, we entertain-no doubt, that the repayment of the-money and the execution of the releases, as above stated, removed all objection to Ms competency, founded on the fact that be was a legatee. — Robinson v. Tipton, 31 Ala. 609.

[2.] The objection which is made here to so much of the testimony of Browne as relates to the identity of the will, cannot prevail, even if we concede that it does not come too late. The point of the objection!is, that the testimony of the subscribing witnesses-does--not sufficiently identify the will offered for probate, as the one which was attested by them ; and that this deficiency in their testimony cannot be supplied by evidence aliunde. Without stopping to inquire whether there was, in fact, any such deficiency in the evidence of the subscribing witnesses as is alleged, it is enough to-say, that no error was committed in allowing any defect in the testimony on that point to be supplied, by the evidence ¡of the witness who wrote the will, and who was present when it was signed-and attested. The law makes two-subscribing witnesses indispensable to the formal execution.-of a will; but it by-no means follows, that the testimony of these witnesses is the only evidence by which the due execution of-the will can be established. On* the contrary»*, it ¡is - laid down as undoubted law, that if, from forgetfulness, the subscribing witnesses should fail to prove the formal execution of the will, other evidence is admissible to -supply the deficiency-; or, if the subscribing witnesses-all swear that-the will-was not duly executed» they may be contradicted, and the will supported by other witnesses,. or by circumstances. — Rowe v. Joliffe, 1 Bl.Rep. 365; Jackson v. Christman, 5 Wend. 277; Bell v. Clark, 9 Ired. 242; 1 Jarm. Wills, [ed. 1855,) 224.

.As is- usual -in contests of this- .character, there is some .conflict in (--the evidence-.; more, however, in matters of ■ opinion, than of fact. Without attempting a discussion of The mass of testimony to be found -in this record, it is enough to say that, in our opinion,--the-,will is sustained by a decided preponderance of evidence. ..Three attending ¡.physicians, the two subscribing witnesses, -the writer .of the will, and a large number -of other witnesses, prove the capacity of the-testator. On the other side, the-wit-messes to prove -incapacity are not so numerous, and, in .-general, their evidence.-is much less pointed and satisfactory.

[3-4.] The charges that the will was procured by undue i influence, and executed under an insane delusion, are not ■: supported by the evidence. -To make out a charge of un- • •due influence, the contestant must show that an influence ’-was exerted upon the mind of the testator, which was equivalent to moral coercion, and constrained him to do -that which was against his will, but which, from fear, the ..desire of peace,.or some other feeling than affection, he was .unable to resist.- — Gilbert v. Gilbert, 22 Ala. 529 ; Taylor v. Kelly, 31 Ala. 59, And to establish insane delusion, the .contestant must do something more than simply show “ a ..mistaken notion” on -the part of the testator, as to the eciings or intentions ohbis relatives, in¡ reference to him or his property. — Mosser v. Mosser, 32 Ala.

[5.] The question of The validity of any particular provision or bequest of the wifli, is not. now before us. If the provision for the emancipation of the slaves be admitted to <be void, that would not defeat The probate of the will, which contains other bequests,- the validity of which is not questioned.

[6.] Wo have no hesitation -in -saying, that the act of January"-25, 1860, “to amend the law in relation to the , emancipation of slaves,” (Acts'’59-60, p. 28,) has no application to will, which bad been admitted to probate before its passage.

Decree affirmed.