Jordan v. Ringstaff , 212 Ala. 414 ( 1925 )

In a proceeding to probate an alleged lost will, the burden is on the proponent to establish, to the reasonable satisfaction of the judge or jury trying the facts:

(1) The existence of a will — an instrument in writing, signed by the testator or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator. Code 1923, § 10598.

(2) The loss or destruction of the instrument — no issue of revocation arising.

(3) The contents of the will in substance and effect. Allen v. Scruggs, 190 Ala. 658, 67 So. 301; Skeggs v. Horton, 82 Ala. 352,2 So. 110; Potts v. Coleman, 86 Ala. 94, 5 So. 780; Jaques v. Horton, 76 Ala. 238; Shorter v. Sheppard, 33 Ala. 648; Apperson v. Cottrell, 3 Port. 51, 29 Am. Dec. 239; Price v. Price, 199 Ala. 433, 74 So. 381; McBeth v. McBeth, 11 Ala. 596; Brown v. Welch, 209 Ala. 518, 96 So. 610; Washam v. Beaty,210 Ala. 635, 99 So. 163.

The main issue presented is the existence of a will duly executed vel non. It is purely an issue of fact. This issue was submitted to the judge of probate upon testimony of witnesses examined orally before him. His decision must be accorded all the presumptions of the verdict of a jury. To overturn his judgment we should be clearly convinced that it is wrong and unjust. This rule rests upon the soundest bases of reason and experience.

We have given the record a full and careful consideration with the aid of briefs of counsel. The case is not free from difficulty. A discussion of the evidence here would serve no good purpose.

Taking the evidence from the printed record, even without the aid of the presumptions the law directs, we cannot say our conclusion would differ from that of the trial judge.

We are convinced that proponents have not so clearly met the burden of proof as to warrant us in reversing the trial judge under the rule of law which obtains in such cases.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.