Allen v. Pugh

• Decision Date: 10 February 1921
• Docket Number: 2 Div. 722
• Citation: 89 So. 470,206 Ala. 10
• Parties: ALLEN et al. v. PUGH.
• Court: Alabama Supreme Court

89 So. 470

206 Ala. 10

ALLEN et al. v. PUGH.

2 Div. 722

Supreme Court of Alabama

February 10, 1921

Rehearing Denied April 28, 1921

Appeal from Circuit Court, Choctaw County; Ben D. Turner, Judge.

Bill by Earl E. Pugh against Robert Allen and others to contest the will of L.R. Noble. From a decree overruling demurrers to the bill and granting the relief prayed, the respondents appeal. Reversed and rendered.

R.P Roach, of Mobile, Joe D. Lindsey, of Butler, and James J Mayfield, of Montgomery, for appellants.

Stevens McCorvey & McLeod, of Mobile, and Gray & Dansby, of Butler, for appellee.

SOMERVILLE J.

This proceeding is by bill in chancery under section 6207 of the Code to contest the probated will of L.R. Noble. The administrator of the testator, one Hollis, and the several beneficiaries under the alleged will, are the parties respondent.

The respondents make the point that the complaining contestant, Earl E. Pugh, is not a person qualified by the statute to prosecute this contest.

The undisputed facts pertinent to this question are as follows: The testator died in 1911, leaving as surviving next of kin two nephews, Gross Scruggs and Meredith Pugh. In November, 1912, Robert Allen, one of the beneficiaries named in the alleged will, filed his petition for its probate in the probate court of Choctaw county, due notice of which was given by citation to the said nephews, Scruggs and Pugh. Scruggs duly filed a contest of the validity of the will thus propounded, in which Pugh did not join. Pending the contest Scruggs died, and the cause was then revived and prosecuted by and in the name of his son, Joe Scruggs. On final hearing the probate court found against the validity of the will, and denied the petition for its probate and establishment. On petitioner's appeal to the Supreme Court, submitted in February, 1914, this court, on November 7, 1914, reversed the decree of the probate court, and rendered a decree, based on the evidence, directing that court to receive for probate the instrument propounded, and to probate it as the will of L.R. Noble. Pursuant to said decree of this court the said probate court entered an order admitting the will to probate on, to wit, January 11, 1915.

While the appeal was pending in the Supreme Court, viz. after its submission and before its decision, Meredith Pugh died, leaving surviving him Earl E. Pugh, his son and legal heir.

Section 6196 of the Code provides that--

"A will, before the probate thereof, may be contested by any person interested therein, or by any person who, if the testator had died intestate would have been an heir or distributee of his estate. ***"

The settled construction of the phrase "any person interested therein" is that it embraces any person who has an interest in the estate disposed of, which would be conserved by defeating the probate of the will, or jeopardized or impaired by its establishment. Montgomery v. Foster, 91 Ala. 613, 8 So. 349; Elmore v. Stevens, 174 Ala. 228, 57 So. 457; Stephens v. Richardson, 189 Ala. 360, 66 So. 497. As stated in the later case of Braasch v. Worthington, 191 Ala. 210, 213, 67 So. 1003, 1004 (Ann.Cas. 1917C, 903):

"A contestant of a will must have some direct legal or equitable interest in the decedent's estate, in privity with him, whether as heir, purchaser, or beneficiary under another will, which would be destroyed or injuriously affected by the establishment of the contested will."

Meredith Pugh, the father of this complaining contestant, since he was an heir at law of the testator, and would have been a distributee of his estate in case of intestacy, was unquestionably a competent contestant of the will in the probate court. Though he was notified of the filing of the petition for probate, by citation as required by the statute (Code, § 6193), he did not appear and join in the contest, and was not a party to that proceeding either in the probate court or on appeal. Breeding v. Grantland, 135 Ala. 497, 33 So. 544; Blakey v. Blakey, 33 Ala. 611. The probate of a will is defined to be:

"The proof before an officer authorized by law that the instrument offered to be proved or recorded is the last will and testament of the deceased person whose testamentary act it is alleged to be." 2 Bouv.Law Dict. 378.

And in providing for the contest of a will before the probate thereof, we think it is clear that the statute requires the filing of the contest before the examination of the witnesses whose testimony would establish the will, the word "probated" being referable to the proving of the will on the day set therefor, rather than to the mere indorsement of the certificate of probate on the will as evidence of the fact of probate. And where one person has filed a contest, others so entitled must become contestants, if at all, by making themselves parties to the contest pending, since the issue is in rem, and must be single and complete as to all the parties. Rainey v. Ridgway, 148 Ala. 524, 41 So. 632. So, on appeal, persons who were not parties to the proceeding in probate are not concerned (Blakey v. Blakey, 33 Ala. 611), and an appeal cannot be prosecuted by any person in interest who was not a party to the record. Clemens v. Patterson, 38 Ala. 721.

It necessarily results that, after the original decree of the probate court, sustaining the contest and denying the probate of the will, Meredith Pugh was no longer eligible as a contestant in the probate court; and, a fortiori, he was not so eligible after the cause was appealed to and submitted for judgment in the Supreme Court. The appellate proceeding was but a continuation of the original, on the same evidence, leading to a judgment on the merits of the contest. That judgment was conclusive of the issue, and, under the mandate of the court, nothing remained for the probate court to do except to enter a formal certificate of probate, a purely ministerial duty. Leeper v. Taylor, 47 Ala. 221; Puryear v. Beard, 14 Ala. 121, 128. As held in Johnson v. Glasscock, 2 Ala. 519, the issue was not open to further contestation, and the cause could not be remanded to let in additional evidence.

We conclude then that when Meredith Pugh died, i.e., after the submission of the appeal in the Supreme Court, his right to contest the will in the probate court had been effectually lost by its nonassertion, and thereafter he could, if living, have contested only in the chancery court under the provisions of section 6207 of the Code.

The final concrete question therefore is, Did Meredith Pugh's right to contest the will in chancery pass by descent cast to his son and heir, Earl E. Pugh, the sole complaining contestant in this cause?

It is fully settled by our decisions that any person who has acquired an interest in the estate by purchase or descent from an heir or distributee--and, it would seem, from a devisee or legatee--which would be injuriously affected by the establishment of the will, may contest it in the probate court, if such interest was acquired prior to the probate of the will. Rainey v. Ridgway, 148 Ala. 524, 41 So. 632; Henry v. Wert, 42 So. 405; ^[1] Elmore v. Stevens, 174 Ala. 228, 57 So. 457; Stephens v. Richardson, 189 Ala. 360, 66 So. 497. These cases do not expressly hold that a contestant's interest in the estate thus acquired by purchase or descent must have been acquired before the probate of the will, that question not being presented; but in each case his interest had in fact been so acquired, and hence he came within the class of "interested" persons authorized to become contestants under the provisions of section 6196 of the Code, and by extension of that right under section 6207.

It does not appear that this court has ever had occasion to decide or discuss the present question. Section 6207 immediately...