Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-06-24
SUPREME COURT DEGISIOyS.
Nashville, December Term, 1863
e Thomas al. COidyvelI, Attorney
q GeneriAhand Reporter s5ar.r1s1t

Ii q e. d. q ID a. g. ~
NashyIile, December Term, 1863
Thomas IN. CoIdweII, Attorney
l. GeEersAhand Reporter. ssa1.res-s
~ G. Alexander ct al, VS. VIM c Bealle ct al.
Issue Of deofsdcH yet non. A paper
was propounded as the win of John AL
exander. = Verdict and judgment were
rendered against the proponents.
The paper propornded was witnessed
by A, a. Massey and John G. Jacobs.
Massey was dead at the time of the trial,
and his signature and that of the testator,
were proved. John G. Jacobs, the other
attesting witness, was sworn as witness
upon the trial of the issue. He testified
that he signed his name to the paper pro
pounded, as witness, but that he did not
recollect that John Alexander was pres
ent-did not recollect who requested him
to witness this recollection was that J.
G. Simms, who wrote the viii, requested
him to witness thinks John Alexander
was not present. ai.t 49,
This witness was then asked, with par
ticulars of time and place and cream
stances, whether he did not say on GER
tain occasion, that he had witnessed old
man Alexander's will, and had signed it
in his presence. a.
This question with others of like char
acter was objected to by the contestant,
and the objection was sustained, and the
evidence excluded. This action of the
court is assigned for error.
This witness was contradicted rs to
some material statements by other testi-
mony. 1t was proved that the will was
written for the deceased, and at his re-
quest, by Simms, and that the deceased
delivered it to the custody of friend as
his will. r- .f
There was some testimony tending to
show that the decedent was present at the
time when Massey and Jacobs witnessed
the will; but no witness testified directly
to that fact, and no witness, except ia
cobs, testifies as to what took place at
the time of the execution or attestation.
1t is well settled that if the attesting
witnesses deny the due execution or at
testatiOn of the viii, their testimony may
be contradicted or disproved by other
competent evidence going to show that
the will was in fact well executed and at
tested-Rose VS.. Allen, Coldw., 20;
Jones vs. Arterburr, IL Hum, 81; Red
field on Wills, Pt Up. 238-1; Williams on
Ex'rs, So.
The right of the proponent to discredit
the testimony of an attesting witness, by
proof of previous statements contradict
ing his sworn testimony, has not, that /
am aware of, been adjudicated in this
State.
We do not deem it necessary TO enter |
upon an extended discussion of authori- |
right clear upon principle.
The rule is stated by Mr. Greenlief |
thus: "Where the witness is not one of |
the party's own selection, but is one whom |
the law obliges him to call-such as the |
subscribing witness to deed, or a will, |
or the hke-here he can hardly be con- |
sidered as the witness OF the party calling |
him, and, therefore, as it seems, his
character for truth may be generally i'm
peached." l Green. EY., SAB.
The law requires the proponent to pro- |
duce the attesting witness, if within his
reach and he cannot omit this, though |
he may know that the witness when pro-
duced will depose falsely. But he is not
by the testimony of the wit
ness, and he may contradict his state
ments, and show the real facts in regard
to the execution and attcstation of the
will, by other evidence. As he is COM
PEELED by the rules of law to put this wit
ness upon the stand, and has no option in
the matter, he does not in so offering him
to the court declare that he is worthy of
credit; and as he may show by other evil
dence that the statements of the witness
are false, it is not easy to see why he
should be estopped from showing this by
the natural and effectual method of
proving his previous contradictory state
ments.
Whether the rule goes so far as to al
low the proponent to impeaCh the general
character of the attesting witness, it is not
necessary now to determine: but We arc
satisfied that in producing such a witness
upon the trial, the prepayment does not so
jndorse his testimony, or hold him out as
worthy of credit, as to estop him from
proving that his previous statements con-
tradict his present testimony.
The jury may, in the absence Of direct
testimony infer the due execution of the
will from circumstantial evidence, and
there is evidence in the record tending to
prove the issue for the proponents; its
weight we do not discuss.
The evidence offered By them was ma
terial, and the Court erred in rejecting it.
Judgment reversed and new trial awarded.
GEo. ANDREWS, Judge.
A true copy: j. G. FRAZER, Clerk.