The Montgomery advertiser., 1908-08-18
WINN NIEW lH EH Hl M MlH m laIIFl Nl III
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MCBRIDE VS. SULLIVAN. Contest of the probate of will-{Ds-
 cided February 6, 1sos--45 So. Rep
 so2.l
 1. Appeal: record; bill of exceptions; signing-where the record shows that an order extending the time for sign ing the bill of exceptions was made oy the judge, and sets out the order, ana the judge in certifying the record specifically mentions the decree ex. tending the time for signing the Dill of exceptions, the bill of exceptions within twenty days. and because It does not show that the time was extended by the judge in writing.
 A. Witnesses: examinations; re- direct examination; discretion of trial court.-where a witness testified on the cross to the writing of letter shown her. and was examined on re- direct as to 1t, 1t was In the sound dis cretion of the trial court whether it would allow her to be recalled for the purpose of another examination as to that matter.
 3. Will: probate; trial; instructions. "A charge asserting that if any theory consistent with the validity of the will can be suggested which ap- pears to be as probable as the theory on which the contention of its validity is based. the will must be maintained, is erroneous, since the theory adopted must not only be consistent with the validity of the will but also consistent with the evidence
 {. Same; testamentary capacity; de- gree of mental capacity.--A person pos- sesses sufficient testamentary capacity if he has mind enough to know what property he possesses. remembers the name of the beneficiary, his relation ship to such beneficiary, and to under stand what disposition of his property he was making by the will. As a general rule it is not necessary to the validity of will that the testator should have been in possession of his full. unimpaired mental faculties.
 5. Same; insane delusions.--To es- tablish the invalidity of g will on &C., count of insane delusions something more must be shown than that the tes- tator had mistaken notions as to the feelings or intentions of his relatives towards tsstator and his property.
 c. Same; establishment; burden of proof-Where a will is contested for want of testamentary capacity. the bur den Is upon the contestant to show ill., competency at the time the will is made; and when insanity of a fixed and permanent nature is proven, 1t Is pre- stunned to continue. and the burden is shifted to the proponent to show the existence of lucid interval at the time of the execution of the will, and this burden is not carried nor the burden shifted to the contestant by showing that at times he was wholly insane and at others had sufficient mental capaci- ty.
 T. Trial; instructions; duty to re- duest.-If q party to suit deems charge given for his adversary mis- leading. it is his duty to request an explanatory charge.
 8. Bastards; legitimation; marriage of parents: reputed.--The object of sec- tion 3s4, Code 1898. is to enable parents by marrying to clothe their offspring with legitimacy, and a publication of the parentage of the child before mar riage is unnecessary; if the child is regarded by the parents, either before or after marriage. as their child: It IS legitimate, the use of the word re- puted, as applied to the father. being merely to dispense with absolute proof of paternity
 g. Evidence; weight; sufficieney.- A charge requiring proof of an issue by a preponderance of the evidence, Tee quires a too high degree of proof, and is erroneous.
 to Trial: instructions; invading iury.s province.--A charge which sets out certain facts as of themselves rais- ing a strong presumption of the testa- mentary capacity of the testator at the time of the execution of the will. is invasive of the province of the jury and erroneous.
 Appeal from Mobile Probate Court.
 Heard before Hon. Price Williams.
 Reversed and remanded. opinion by Simpson, ].
 Tyson. c. J., and Haralson and An derson, u. concur.
 REYNOLDS v. THE STATE. Murder.-(Decided February 1S. 1903.
 45 South. ss4.) a.
 1. Homicide; manslaughter; ele- ments.--An intent to kill or to do an act of violence from which ordinarily death or great bodily harm will re- suit. is manslaughter in the first de- gree.
 2. Criminal law: capacity to commit crime: infants; presumption.-The law presumes that person under 14 years of age Is not possessed of the requisite guilty Knowledge of the wrongfulness of an act so as to authorize the convic- tion of such person of felony, and such presumption must be rebutted by clear proof of a mischievous discretion or a knowledge of the difference be- tween good and evil
 8. Same; trial; question for jury Whether or not person under 14 years of age possesses the requisite guilty knowledge to authorize a conviction for felony was, under the facts in this case. a question for the jury.
 l. Same; instructions; abstract Where the tendencies of the evidence showed that the killing was the result of an injury Intentionally inflicted, and there was an absence of evidence that ebe killing was the result of an acci- dent a charge as to accidental killing was abstract and properly refused.
 s. Same; instruction; intent.-The e charge asserting that the defendant could not be convicted of murder, or mansIauEhter in the first degree, un- less he intended to kill the decedent, is improper for falling to hypotheslze the want of intent to do an act of vio- lence from which ordinarily death or great bodily harm would result
 6. Same; retreat.-Under the evil denee in this case 1t cannot be assert ed as a matter of law that the doctrine of retreat is inapplicable.
 2. Same; directing verdict.-Where there Is a conflict in evidence on mate rial matters the affirmative charge is not properly given.
 Appeal from Pike Circuit Court.
 Heard before Hon. H. A. Pearce.
 Reversed and remanded. Opinion by Haralson, J.
 Tyson. c. J., Anderson and Denson, JJ.. concur.
 DAVIS & COMPANY V. THOMAS. Dettnue.-(Deeided February IS. 1908.
 45 South. S97. )
 1. Statutes; construction; legisla- tiN1a iptapt In construing a statute