Hughes v. Hughes'

STONE, J.

— There is an agreement in this record that the answer of Gondelock to the 5th interrogatory, may be regarded as the answer of Sims; and consequently, the 1st, 2d and 3d assignments of error present but one question. The objection to this answer is, that the subscribing witnesses stated their belief that the testator was of sound mind, and not their opinion that such was the case. In the connection in which this word is used by the witnesses, there is but little difference between the import of the words, belief and opinion. Neither implies actual knowledge; while each expresses a persuasion or probability of the truth of the proposition, based, in this case, on the evidence furnished by the appearance and *524manner of the testator; corroborated, probably, by a previous knowledge of him. Mr. Greenleaf seems to use the-words convertíbly. — 1 Greenl. Ev. § 440. This objection was rightly overruled.

2. The 4th, 5th and 6th assignments may be considered together. They present the question of the admissibility of a former will of the testator, as evidence for the contesting party, on the trial of the issue devisavit vel non.

In the case of Roberts v. Trawick, 13 Ala. 68, 82, our predecessors said: “"We can not perceive on what principle the witness Whitron was permitted to give evidence of a will executed by the testator some twelve years anterior to the one in controversy, by which, it is said, the testator made an equal division of his property among-his children,” If this decision be adhered to as a precedent, it is decisive of the 4th, 5th and 6th assignments of error, for they all relate to the same question. The argument in this case attacks that decision, and we are asked to review it.

I have duly considered this question; and, while I would prefer to adhere to the above decision, believing as I do that no material injury in practice can grow out of it, my brothers are of a different opinion, and are in favor of overruling it. I do not myself believe it can be sustained, either on principle or authority. In the very paragraph from which the above extract is taken, the following language occurs: “ If a will be made in conformity to a fixed determination, entertained and expressed for years, this, it is held, is strong proof of capacity.” Couch v. Couch, 7 Ala. 519, is referred to as sustaining this proposition, and does sustain it. Now, with all due deference, we submit, is it not equally true, if a will be made which is variant from the testator’s determination, entertained and expressed for years, that this fact is admissible evidence against the capacity of the testator? If the conformity tend to establish the will, does not the non-conformity tend to impair its validity ? Now, what stronger evidence could be offered, either of this determination or its expression, than the incorporation of such intention in a former will ?

*525We have found uo authorities which fully sustain this principle in Roberts v. Trawick, while the following adjudged cases hold such evidence admissible: Irish v. Smith, 8 Serg. & Rawle, 573; Love v. Johnston, 12 Ired. 355; Marsh v. Tyrrell, 2 Hagg. 84; Mynn v. Robinson, 2 Hagg. 169; Dodge v. Meech, 1 Hagg. 612.

The case of Stevens v. Vancleve, 4 Wash. C. C. R. 262, is the only authority cited by our predecessors in support of their ruling in the case of Roberts v. Trawick, supra. In that case, the question was not quite the same as that here presented. Moreover, the court in that case not only excluded the former will, but also the uniform declarations of the testator, which he had made in favor of the devisee under his will. We agree with that court, in holding that each species of this evidence stands on the same principle, and if one is excluded, the other should be. We think, however, that both should he admitted; and this coui’t held in Roberts v. Trawick, supra, that former ■declarations of the testator were admissible.

We think our predecessors fell into error, in not discriminating between the admissibility and the sufficiency of evidence. It is certainly true, that a testator may change his mind: and the fact, of such change will not, per se, avoid his will. He may give his property to a stranger, to the exclusion of his children. These circumstances, however, are proper evidence for the jury, on the issue whether the paper propounded is in fact the will of the supposed testator. — Coleman v. Robertson, 17 Ala. 84; Gilbert v. Gilbert, 22 Ala. 529; and see other authorities on the brief of counsel.

3. We think the evidence of the execution of a former ■will was, prima fade, sufficient to let it go before the jury. Whether it in fact was executed, would have been a question for them, under appropriate instructions. After-its admission in evidence, the sufficiency of the proof should have been determined by the jury. — See 2 Cow. & Hill’s Notes to Phil. Ev. (ed. of 1839,) pp. 1303, 1304; Ross v. Gould, 5 Greenl. 204; Pigott v. Holloway, 1 Binney, 436.

4. There was certainly no error in excluding that portion of the deposition of Nelly Evans which was objected *526to. It assumed to detail a conversation between herself and other persons, relative to the testator. She did not testify that the information which she gave during that conversation was true, nor could she testify as to the truth of opinions advanced by others. All persons are legally accountable for their acts, and such acts may be the subject of proof. They can not be held accountable for the opinions which others may express of their conduct.

4. The charge of the court, to which exception was taken, is in substance the same as that considered in the case of Coleman v. Robertson, 17 Ala. 84. In that case, the charge was held to be free from error, and we do not feel at liberty to depart from the precedent then established. If the charge was calculated to mislead, — and we are inclined to think it was, — it was the duty of the party who-thought himself injuriously affected by it, to ask explanatory charges. — Partridge v. Forsyth, 29 Ala. 200, and authorities cited. But, while an unequal distribution of property among children will not, as matter of law, avoid a will; yet it is a circumstance which the jury should weigh in pronouncing on the issue devisavit vel non.

For the error in refusing to receive evidence of the former will, the judgment of the probate court is reversed, and the cause remanded.