Weeks v. McBeth
Supreme Court of Alabama
Error to the Orphans’ Court of Pike. The defendants in error offered for probate a copy of the last will and testament of Walter McBeth, alledging that the original was duly executed by the deceased, in the presence of the witnesses, who attested the same; and that at the time-of the execution of the will, he was of sound mind, and disposing memory. That since the execution of the will, it has been lost or mislaid, so that the original cannot ,be produced.
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Error to the Orphans’ Court of Pike. The defendants in error offered for probate a copy of the last will and testament of Walter McBeth, alledging that the original was duly executed by the deceased, in the presence of the witnesses, who attested the same; and that at the time-of the execution of the will, he was of sound mind, and disposing memory. That since the execution of the will, it has been lost or mislaid, so that the original cannot ,be produced. The plaintiffs in error, contesting said will, against the probate thereof alledged — 1. That said supposed will, was not in fact the last…
1Opinion of the CourtDargan, J.
Although it be shown that a will was once executed, yet if it remained in the possession of the testator, and cannot be found after his death, the presumption of law is, that it was destroyed by him aim animo revocandi. 4 Kent’s Com. 532; 6 Wend. 173; 2 Hagg. 613; McBeth v. McBeth, 11 Ala. 596. This legal presumption may however be rebutted, by showing that the will was destroyed by accident or mistake, or when the testator was insane; and when the point of inquiry is, with what intention the will was destroyed, the declarations of the testator are admissible to show, that it was done by…
2Cases cited2 opinions
- Betts v. Jackson ex dem. BrownCourt for the Trial of Impeachments and Correction of Errors · 1830
- McBeth v. McBethSupreme Court of Alabama · 1847
3Cited by17 opinions
- Hodge v. JoySupreme Court of Alabama · 1921
- Sheehan v. KearneyMississippi Supreme Court · 1903
- Allen v. ScruggsSupreme Court of Alabama · 1914
- In re Valentine's WillWisconsin Supreme Court · 1896
- Bradway v. ThompsonSupreme Court of Arkansas · 1919
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