In re Last Will of Hollingsworth

Day, J.

1. BILL OF EXECUTIONS: abstract: evidence. I. The proponent filed a motion to strike out all the evidence from the abstract and affirm tbe judgment, 011 ground that tbe evidence is not preserved by any proper bill of exceptions, and tbe abstract does not purport to give an abstract of any proper bill of exceptions. This motion was submitted with the cause. Tbe abstract contains tbe following statement: “Twenty days from tbe 24th day of March, 1881, was given by court and opposite counsel to present and file bill of exceptions; which bill of exceptions embodying and containing all tbe evidence offered and introduced and all tbe proceedings had upon tbe trial, was by tbe judge signed on tbe 7th day of April, 1881, and duly filed with tbe clerk on said day. Tbe foregoing abstract contains all tbe evidence offered or received upon the trial of said cause, as well as tbe rulings of the court and objections and exceptions of counsel.” It does appear that a bill of exceptions was duly signed, and that tbe abstract was made therefrom. The motion is overruled.

2. WILL: undue influence: evidence of. II. Tbe subscribing witnesses to tbe will are Pendleton Hubbard and Pbiletus Parks. Hubbard testified that at the time tbe will was signed no one read it over; that and Parks and Condit were tbe only persons present; that Condit presented the will to decedent, and took it after it was executed, and that tbe will was written by Secoy. Parks testified that at tbe time the will was signed Condit requested all tbe others to go out of tbe room. It is *528 not shown that Condit was in any way related to the decedent, but it does appear that he was in his room most of the time during his last sickness. Condit testified that his own name and that of Amandy Marsh were written in the will by himself at the request of the decedent. The contestant produced several witnesses and proposed to prove by them what the decedent, a short time before his death, said and did with reference to his children and calling for his will; that deceased demanded his will, and Condit stated that he was crazy, and to pay no' attention to him. This testimony was rejected. We think it should have been admitted. The facts that Condit’s name was written in the will by himself and that he took charge of the will immediately upon its execution, and that the will was not read by the subscribing witnesses, nor to the decedent in their presence, are of themselves, to say the least, somewhat suspicious. If Condit refused to produce the will, when requested to do so by the decedent, this fact would have some bearing upon the question whether he procured the devise to himself by fraud or undue influence. The declarations of the decedent also, respecting his children, might show whether the provisions of the will were in accordance with his purposes, and thus bear upon the question of fraud and undue influence

Reversed.