
    Wilson v. Bostick.
    
      Contest of Will.
    
    Decided June 13, 1907.
    44 South. 389.)
    1. Wills; Revocation; Second Will. — The execution of a second will is a revocation of the first, under section 42G5, Code 1896.
    2. Same; Evidence; Sufficiency. — One witness is insufficient to show a revocation of a second will by its being burned, torn or can-celled by an other than the testator, under the express terms of 4-265, Code 1896.
    Appeal from Tallapoosa Probate, Court,
    Heard before Hon. G. A. Sorrell.
    Application by G. F. Wilson for probate of a will and contest by M. J. Bostick. From a judgment refusing probate, proponent appeals.
    Affirmed.
    James W. Strother, and Lackey & Bridges, for appellant.
    Something more than mere weakness of mind is necessary to show testamentary incapacity. — Bulger r. Ross, 98 Ala. 267; Berney v. Torrey, 100 Ala. 157; Seheiffcliu r. Heheiffclin, 127 Ala. 14; Garrett v. Heflin, 98 Ala. 618. The insanity or mental defect rendering a testator incompetent must be shown to bo. of a permanent character. — Johnson v. Armstrong, 97 Ala. 731; Murphey r. Heirn, 107 Ala. 424. Where there is no evidence to support the contention of a party to a cause it is error to submit such a question to the jury. — Johnson r. Armstrong, supra; Grane v. The Rtate, 111 Ala. 45; Wisdom r. Recrea, 110 Ala. 418.
    Bulger & Rylance, for appellee.
    The objections to tiie questions propounded to the witness Carlisle, were properly overruled. — Parrinh v. The State} 139 Ala. 42.-Lowe’s testimony was competent. — Barker v. Bell, 49 Ala. 216; s. e. 49 Ala. 392; Woodruff v. Hundley, 127 Ala. 640. Charge 2 was properly given for appellee.— Seheiffelin v. Seheiffelin, 127 Ala. 129; L. & N. R. R. Co. v. Sulliran, 126 Ala. 95; Southern Ry. Co. v. Riddle, 126 Ala. 244. The burning of the. second will could not he proven by the testimony of one Avitness where it Avas burned and destroyed by another than the testator. —Sections 4265-4266, Code 1896. The execution of the second aatII revoked the first will. — Barker v. Bell, supra; Lair r. Law, 83 Ala. 433.
   DOWDELL, J.

Apart from and besides the testimony of the witness Loavo as to the execution of a subsequent will to the one propounded for probate, which Avas admitted over the objection of the proponent, and Avhich action of the. court was excepted to and here assigned as error, there Avas other evidence, by Spinks and Wilson going to prove; a subsequent Avill. Spinks testified that he and IloAve subscribed their names as attesting Avitnesses to the execution of such subsequent Avill. Exceptions were taken to the ruling of the court on ilie admission of Spinks’ e\idence, but there is no. assignment of error as to the ruling. The evidence as to the execution of the subsequent will was Avithout dispute. The execution of the second wi 11 Avas a revocation of the former or first will. — Code of 1896, § 4265; Barker v. Bell, 49 Ala. 284. This Avas one of the grounds of contest of the proposed aatII.

The proponent sought to sIioav that the proposed aat.11 AA'as re-established by the destruction by burning of the second or subsequent Avill. To this end the proponent, testifying; as a Avitness Avithout objection, SAVore that he (Avitness) burn('d the subsequent Avill in the presence of and at tlie request of the testator. He was the only witness that testified to this fact. Section 4265 of the Code of 1886 contains the following provision relative to the revocation of wills: “And when any will is burned, torn, canceled, or obliterated by any other person than the testator, his direction and consent thereto, and the fact of such burning, canceling, tearing, or obliteration, must be proved by at least two witnesses.” The evidence of one witness was insufficient, under the statute, to show a revocation of the second will by the burning of the same by any,person other than the testator himself. On the undisputed evidence the trial court might well have given the general charge requested by the contestant ; and, this being true, the giving of other charges requested, as shown in the record, resulted in no injury of which the proponent can complain.

Our conclusion renders it unnecessary to discuss the question of undue influence or mental incapacity relating to the execution of the will propounded for probate. Finding no reversible error in the record, the decree of the probate court will be affirmed.

Affirmed.

Tyson, O. J., and Haralson and Anderson, JJ., con-cu r.  