Wittick v. Traun

31 Ala. 203

• Court: Supreme Court of Alabama
• Decided: June 15, 1857
• Status: Published

Opinion

WALKER, J.

— It is clear upon reason and authority, that the declarations of Henry Traun are not made admissible evidence to establish the will by the fact that he was the administrator. It is not shown that Henry Traun, the appellee and administrator of the estate, whose declarations were offered in evidence, was the same person with Philip Henry Traun, to whom the greater portion of the estate is bequeathed by the alleged will, and who is therein appointed executor. But, conceding that the two names designate the same person, still the admissibility of the testimony doesnot follow. The declarations of an executor are not admissible for the purpose of impeaching a will; still less would they be admissible for the purpose of establishing it. But, upon the concession made for the sake of the argument, Henry Traun is not only administrator, and appointed executor, but he is the legatee and devisee of the greater part of the estate. This last fact makes his declarations clearly inadmissible for the purpose of establishing the will. It is a plain case of the largest beneficiary under a will maldng evidence by his declarations to establish the will.

It does not appear from the bill of exceptions, that ifenry Traun, in the absence of the will, would take any part of the estate, as the heir or distributee of the decedent ; nor are any facts alleged, from which we can ascertain that he would be either the heir or distributee. The fact stated in the putative will, that Philip Henry Traun is the nephew of the decedent, does not show that he is the heir or distributee. He may have been the nephew, and yet there may have been other persons who, under our statute of descent and distribution, would take before him.

The authorities in reference to the different legal propositions asserted in this opinion are cited upon the briefs.

The decree of the court below is affirmed.

StoNe, J., not sitting.