Summary
In Gilliland v. Dobbs, 234 Ala. 364, 369, 174 So. 784, 788, the Chief Justice applied this principle to wills, saying: "* * * The apparent weight of authority, to the effect that such declarations are admissible on the issue of forgery of the will, where the issue is raised by other substantial evidence and proof of the declarations is therefore corroborative of other testimony. It seems that our court is committed to and inclined to follow the last-mentioned rule and to which we must now adhere.
Summary of this case from Slagle v. HalseyOpinion
7 Div. 390.
May 6, 1937. Rehearing Denied June 17, 1937.
Isbell Beck, of Fort Payne, for appellant.
Evidence that hotel register showed that decedent registered at the hotel on dates stated was contrary to the best evidence rule. Powell v. Pickett, 219 Ala. 18, 121 So. 23; Denson v. Kirkpatrick D. Co., 225 Ala. 473, 144 So. 86; King-Store Co., v. Thomas, 24 Ala. App. 324, 325, 134 So. 822. Evidence with respect to the physical condition of decedent was inadmissible. Burney v. Torrey, 100 Ala. 157, 14 So. 685, 46 Am.St.Rep. 33; Woodward Iron Co. v. Spencer, 194 Ala. 285, 69 So. 902; Huey v. Dykes, 203 Ala. 231, 82 So. 481. Witness should not have been permitted to state as a conclusion whether or not decedent signed the will. Birmingham S. R. Co. v. Vanderford, 217 Ala. 342, 116 So. 334; Laster v. Blackwell, 128 Ala. 143, 30 So. 663; Reeves v. State, 96 Ala. 33, 11 So. 296; Briggs v. Birmingham Ry., L. P. Co., 194 Ala. 273, 69 So. 926. The color of decedent's hair was irrelevant to any issue involved. Tennessee Coal Iron R. Co. v. Kelly, 163 Ala. 348, 50 So. 1008. Testimony as to whether or not testatrix was capable of making a will was competent. Shirley v. Ezell, 180 Ala. 352, 60 So. 905. Declarations of the testatrix subsequent to the execution of the will denying same are incompetent. Woodruff v. Hundley, 127 Ala. 640, 655, 29 So. 98, 85 Am.St.Rep. 145; Venable v. Venable, 165 Ala. 621, 51 So. 833; 68 C.J. 1004. Proponent was due the affirmative charge. Reynolds v. Massey, 219 Ala. 265, 122 So. 29. Having made out a prima facie case the burden was then upon contestant to overcome it. Baker v. Eastis, 215 Ala. 402, 403, 110 So. 705; Graves v. Graves, 228 Ala. 642, 154 So. 788.
F. F. Windham, of Tuscaloosa, and C. A. Wolfes, of Fort Payne, for appellee.
The best evidence rule does not apply to matters purely collateral to the main issue; hence evidence as to what the hotel register showed was admissible. Stearns v. Edmonds, 189 Ala. 487, 66 So. 714; Foxworth v. Brown, 120 Ala. 59, 24 So. 1; Howell v. Carden, 99 Ala. 100, 10 So. 640. An assignment of error not argued separately in brief but jointly with others having no merit will not be considered. Cairnes v. Hillman Drug Co., 214 Ala. 545, 108 So. 362; Ogburn v. Montague, 229 Ala. 78, 155 So. 636. One who has corresponded with a party, sending letters by mail and receiving replies, may testify to his handwriting. Campbell v. Woodstock Iron Co., 83 Ala. 351, 3 So. 369. Where brief merely repeats assignments of error, nothing is thereby presented for review. Boswell v. Land, 217 Ala. 39, 114 So. 470; Ala. G. S. R. Co. v. Clark, 221 Ala. 616, 130 So. 318. Relevancy of evidence will be determined from the whole evidence, as it may become relevant by that subsequently introduced. Nations v. Harris, 214 Ala. 339, 108 So. 29. No exceptions to overruling of motion for new trial being shown by the bill of exceptions, such ruling is not reviewable, even if such ruling is revisable in a will contest. Venable v. Venable, 165 Ala. 621, 51 So. 833; Jones v. Pritchett, 232 Ala. 611, 169 So. 224. Evidence on the controlling issues being in direct conflict, the verdict sustained by the trial court will not be disturbed. Southern Ins. Co. v. Wilson, 214 Ala. 373; 108 So. 5. Evidence of declarations of testatrix to the effect that she had made no will was admissible. Lewis v. Martin, 210 Ala. 401, 98 So. 635.
The appeal in this case was to the Court of Appeals and decided by said court and is before us upon certiorari. This case involves the probation and contest of a will and incidentally the title to land and is not within the jurisdiction of the Court of Appeals. Under the statute (Code 1928, § 7320), however, it should be automatically transferred to this court and we will therefore consider it as if submitted to this court originally.
It is sufficient to say that we agree with and adopt the opinion of Samford, J. (which is set out by the reporter), except so much as deals with the proof of the declarations or denials of the testatrix, Mrs. Dobbs, before her death and after the date of the purported will, that she had not made a will, and which seems to be the only point upon which the Court of Appeals deemed reversible error.
True, as stated in the opinion of Samford, J., the authorities are not harmonious as to the admissibility of the declarations of the testator in a contest of his purported will. Some hold they are not admissible unless part of the res gestæ, some only when the will is contested upon the ground of the incapacity of the testator but not upon the execution or forgery of the will. There is still another line, and the apparent weight of authority, to the effect that such declarations are admissible on the issue of forgery of the will, where the issue is raised by other substantial evidence and proof of the declarations is therefore corroborative of other testimony. It seems that our court is committed to and inclined to follow the last mentioned rule and to which we must now adhere. Alexander v. Alexander, 214 Ala. 291, 107 So. 835; Seale v. Chambliss, 35 Ala. 19.
For a full discussion of this question and the authorities pro and con, we refer to the elaborate note in the case of Brooks v. Creger, 62 A.L.R. 690-698.
The case of Woodroof v. Hundley, 133 Ala. 395, 32 So. 570; Woodruff v. Hundley, 127 Ala. 640, 29 So. 98, 85 Am.St.Rep. 145; is not in conflict with the present holding. There the declarations excluded tended to show a revocation of the will and the court held that such evidence was not proper as no act of revocation had been shown.
Finding no reversible error in the rulings of the trial court, the judgment of the county court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.
I neither concur in, nor dissent from, the decision in this case, on its merits.
It is my view that we have no jurisdiction to entertain the appeal; and that the same should be by us transferred to the Supreme Court. Code 1928, §§ 7309 and 7320.
I therefore dissent.