Keyland v. Keyland

Supreme Court of Alabama

Keyland v. Keyland

101 Ala. 297

DecidedNovember 15, 1893

StatusPublished

This text of 101 Ala. 297 (Keyland v. Keyland) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Keyland v. Keyland, 101 Ala. 297 (Ala. 1893).

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Opinion

McCLELLAN, J.

The probate court, in our opinion, erred in admitting in evidence the paper purporting to [300]*300be the affidavit of William Keyland, deceased, without proof that he made the same. The facts set forth in the paper were, of course, competent for the purpose of showing that William Keyland accepted the legacy under the will of Mrs. Sarah McStraffick on the terms therein specified, that is, that he accepted the bequest of the money he owed the testatrix for life, and thereby charged his estate with the payment of the amount thereof to the children of his marriage with his first wife; and the contents of the affidavit for this purpose stand upon the footing of admissions made by him. But it was necessary to prove in some way that he made these admissions. The paper without the jurat of the notary public would be as efficacious as it is with it. The facts that it is in form an affidavit purporting to be signed by him and to bear the certificate of a notary of subscription and verification, do not, in other words, change its character as a mere written admission, nor add to its dignity or inherent probative force. The paper is not the foundation of a suit, and hence not within the influence of section 2770 of the Code. As admissions ofKeyland, its statements must be proved to have been made by him before they are admissible in evidence. Being written, it was necessary to prove that he signed the Avriting as a predicate for its admission for any purpose. The court should have excluded it, there being no evidence that he signed the paper or admitted the facts it contains. With it out of the case, the judgment of the probate court can not be sustain fed. There was no testimony in the case, except this which was improperly in it, going to show that William Keyland accepted the legacy under Mrs. Mc-Straffick’s will, and hence no evidence that the debt evidenced by the notes ceased to be a debt simply against which statutes of limitations have operated a bar, and that the amount thereof became a trust fund in the hands of Keyland during his life, with remainder over on his death to certain of his children, thus constituting a charge on his estate in their favor.

The judgment of the probate court must, therefore, be reversed, and the cause will be remanded.

Reversed and x*emanded.

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McCLELLAN, J.

The probate court, in our opinion, erred in admitting in evidence the paper purporting to [300]*300be the affidavit of William Keyland, deceased, without proof that he made the same. The facts set forth in the paper were, of course, competent for the purpose of showing that William Keyland accepted the legacy under the will of Mrs. Sarah McStraffick on the terms therein specified, that is, that he accepted the bequest of the money he owed the testatrix for life, and thereby charged his estate with the payment of the amount thereof to the children of his marriage with his first wife; and the contents of the affidavit for this purpose stand upon the footing of admissions made by him. But it was necessary to prove in some way that he made these admissions. The paper without the jurat of the notary public would be as efficacious as it is with it. The facts that it is in form an affidavit purporting to be signed by him and to bear the certificate of a notary of subscription and verification, do not, in other words, change its character as a mere written admission, nor add to its dignity or inherent probative force. The paper is not the foundation of a suit, and hence not within the influence of section 2770 of the Code. As admissions ofKeyland, its statements must be proved to have been made by him before they are admissible in evidence. Being written, it was necessary to prove that he signed the Avriting as a predicate for its admission for any purpose. The court should have excluded it, there being no evidence that he signed the paper or admitted the facts it contains. With it out of the case, the judgment of the probate court can not be sustain fed. There was no testimony in the case, except this which was improperly in it, going to show that William Keyland accepted the legacy under Mrs. Mc-Straffick’s will, and hence no evidence that the debt evidenced by the notes ceased to be a debt simply against which statutes of limitations have operated a bar, and that the amount thereof became a trust fund in the hands of Keyland during his life, with remainder over on his death to certain of his children, thus constituting a charge on his estate in their favor.

The judgment of the probate court must, therefore, be reversed, and the cause will be remanded.

Reversed and x*emanded.

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Bluebook (online)

101 Ala. 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keyland-v-keyland-ala-1893.