Breeding v. Grantland

• Decision Date: 03 February 1903
• Citation: 135 Ala. 497,33 So. 544
• Parties: BREEDING ET AL. v. GRANTLAND.
• Court: Alabama Supreme Court

33 So. 544

135 Ala. 497

BREEDING ET AL. v. GRANTLAND.

Supreme Court of Alabama

February 3, 1903

Appeal from chancery court, Morgan county; Wm. H. Simpson Chancellor.

Suit by Samuel E. Grantland against Millard W. Breeding and others. From a decree overruling a motion to strike demurrers to defendants' plea from the files, and from a decree sustaining demurrers to the plea, defendants appeal. Affirmed.

Russell & Lynne, for appellants.

S. T Wert, Saml. Blackwell, and Arthur Fite, for appellee.

McCLELLAN C.J.

The bill in this case was filed by appellee to invalidate the last will and testament of William Breeding, deceased. A plea was interposed by appellants, averring that the will had been regularly admitted to probate in the probate court of Morgan county, after a contest of said probate by James Breeding, a brother of the testator, and an uncle of appellee. The plea further avers "that, during the hearing or trial of said contest, complainant was examined as a witness in the behalf of said contestant; that complainant aided and abetted said James Breeding in the inauguration and prosecution of said contest, and, while not marked as a contestant on the record was a contestant in fact, for that he paid a part or portion of the funds or fees for the employment of attorneys to institute and prosecute said contest (he paying the attorneys the amount ascertained and determined to be his pro rata part), and he zealously aided in said contest; that the solicitors now representing the complainant are the same that were employed to, and did, contest said will before the probate court." Appellee demurred to the sufficiency of the plea, and thereupon appellants moved to strike the demurrers from the file upon the ground that the plea should be set down for hearing upon its sufficiency, and not demurred to. The motion to strike the demurrers was overruled. The cause was then submitted upon the demurrers the demurrers sustained, and the plea held insufficient. The appeal is prosecuted from both decrees.

Section 427 of the Code, authorizing "appeals from certain interlocutory decrees," does not provide for an appeal from the decree overruling the motion to strike the demurrers. We are therefore confined to the consideration of the propriety of the decree sustaining the demurrers and holding the plea insufficient.

The proper practice to test the sufficiency of a plea in a court of equity is to set it down for hearing upon its sufficiency, or by motion to strike, and not by demurrer. "The effect, however, is the same, and furnishes no ground for a reversal." Freeman v. Pullen, 119 Ala. 235, 24 So. 57.

The plea avers that appellee was not a contestant of record upon the contest of the probate of the will in the probate court and for this reason it was bad. In the case of Donegan v. Wade, 70 Ala. 501, where a will provided that the interest of any child "who resists the probate" of the will, "or petitions to break or set it aside," should be forfeited and go to those who had not "opposed it," we held that a child, who, without making himself a party to the contest instituted by another devisee, actively interfered in behalf of the contestant, contributing to the...