Opinion
3 Div. 107.
May 10, 1934. Rehearing Denied May 31, 1934.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Ball Ball, of Montgomery, for appellants.
Ballard Ballard, of Montgomery, for appellee.
The decree on the contest of the will recites: "The court has heard the case without a jury on the issue between the proponent and the contestants that the will of the deceased was not duly executed, and has heard the testimony orally," etc. The will was admitted to probate.
The evidence of the subscribing witnesses has been considered at length, and the court is of the opinion that the will of W. A. Graves, deceased, was executed as required by the statute (section 10598, Code), as construed and applied by this court (Reynolds et al. v. Massey et al., 219 Ala. 265, 270, 122 So. 29; Green et al. v. Davis [Ala. Sup.] 153 So. 240 ); and this is shown by the evidence, giving a due regard to the burden of proof of the due execution being upon the proponent (Reynolds et al. v. Massey et al., supra; Massey et al. v. Reynolds et al., 213 Ala. 178, 104 So. 494; Elston v. Price, 210 Ala. 579, 98 So. 573).
Ante, p. 162.
The testimony of the subscribing witnesses, while it has its infirmities, tends to show that the will was signed by testator in the presence of the subscribing witnesses with the fountain pen of the witness Harris; that the same pen was used by the subscribing witnesses in affixing their signatures to the will as such, at the same time and place; and this testimony is corroborated by the signatures as they appear on the original will which we have before us.
The judgment of the circuit court is therefore affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.