Blacksher Co. v. Northrup

• Decision Date: 29 December 1911
• Citation: 57 So. 743,176 Ala. 190
• Parties: BLACKSHER CO. ET AL. v. NORTHRUP.
• Court: Alabama Supreme Court

57 So. 743

176 Ala. 190

BLACKSHER CO. ET AL. v. NORTHRUP.

Supreme Court of Alabama

December 29, 1911

Rehearing Denied Feb. 15, 1912.

Appeal from Law and Equity Court, Monroe County; H. H. McClelland Special Judge.

Bill by Mary S. Northrup against the Blacksher Company and others to sell lands owned jointly. Decree overruling demurrer to the bill and certain of the respondents appeal. Reversed rendered, and remanded.

McClellan J., dissenting.

As amended, the bill alleges: That Dr. J. W. Shomo died leaving certain heirs named. That at the time of his death he was seised and possessed of a considerable quantity of real estate and personal property, situated in Monroe county Ala., describing the real estate. That said Shomo left a last will and testament, by which he devised and bequeathed said real estate to his daughter, Nellie S. King, and her three children, this complainant and two others named, and certain other property to his other daughter and her children. That the executor therein named filed an instrument in writing purporting to be the last will and testament of said Shomo, and that it was duly propounded and admitted for probate, giving the dates, and the orders as exhibits. It is then alleged: That the one-fourth interest of Nellie S. King in said above-described real estate has passed by mesne conveyances since said will and prior to her death to the Blacksher Company and others named therein, in the following manner: On the 20th day of September, 1900, by deed executed and delivered jointly by Nellie S. King and her husband to G. G. Scott and T. W. Weatherford, and later by deed from Weatherford to Scott for his undivided interest in said land; in March, 1902, by deed from Scott and wife to the Blacksher Company, purporting to convey to the same all of the trees and timber on the lands above described for a consideration, with a time limit that has not yet expired, to remove said trees, which deed purported to convey all the trees and timber, but which conveyed really an undivided one-fourth interest in said trees and timber. That Scott died in April, 1908, leaving a last will and testament, by which he devised all of his right, title, and interest in the soil of the above-described land, and such timber as might not have been cut by the Blacksher Company within the time limited to them, to his wife, Anna S. Scott. That before the filing of this bill the said Anna S. Scott executed and delivered to the children of Dr. Scott and his first wife, Kate (naming them), said above-described land, reserving a life estate therein to herself. It is then alleged that G. G. Scott, Jr., a son of G. G. Scott and his first wife, Kate, died in September, 1909, and that his sister, Kate M. Scott, was appointed administratrix of the estate. It is then alleged that the estates of Nellie King, Kate Scott, and G. G. Scott are solvent, and that G. G. Scott left no heirs at law, except his brothers and sisters. The sixth paragraph sets forth the interest of each in the lands and timber, alleges that it cannot be equitably divided, and prays for a sale of division. The will is made an exhibit to the bill, and is in the ordinary form, with only one witness, and without the usual formula as to the signing and sealing in the presence of the witness, who signs in the presence of the testator, etc. The demurrers were interposed by Charles E. Farish, David S. King, the Blacksher Company, and Anna S. Scott, and are that it affirmatively appears from said amended bill of complaint that the only right asserted by the complainant to an interest in the lands in controversy is based upon said alleged will of J. W. Shomo, and it further appears affirmatively it was attested by but one witness, and that the decree purporting to probate the same recites that there was but one witness. It therefore affirmatively appears that the complainant has no interest in the lands therein described.

Stevens & Lyons and C.J. Torrey, for appellants.

Barnett & Bugg, for appellee.

ANDERSON J.

While impressed with the logic and reasoning of the argument of appellants' counsel, to the effect that the formalities as to the execution of wills as contained in section 6172 of the Code of 1907 apply only to wills which devise real or personal property, and are not essential as to wills appointing an executor or guardian, that a will devising property, though not executed according to the statute, may be invalid as a devise or bequest of property, and yet may be a valid will for other purposes, under the common law, and entitled to probate and proof, and is operative to the extent to which it may be valid as a testamentary document. We do not think the question, however, now open or debatable in this jurisdiction, since the adoption of a complete system of statutes, as far back as the Code of 1852, covering the subject of wills, and providing how they must be executed and proven. Barker v. Bell, 46 Ala. 216.

A will has been defined to be "an instrument by which a person makes a disposition of his property, to take effect after his decease, and which is in its own nature ambulatory and revocable during his life." 1 Jar. on Wills, § 1. This definition has been approved and adopted in the cases of Rice v. Rice, 68 Ala. 216, and Daniel v. Hill, 52 Ala. 436.

In other words, there must be some disposition of property by the testator in order for the paper to amount to a will, and it must be executed as required by the statute. Therefore section 6172, in requiring that wills to be effective to pass real or personal property, except nuncupative ones, must be in writing, signed by the testator or some person in his presence, and by his direction, and attested by at least two witnesses, who must subscribe their names thereto in the presence of the testator, covers all wills, as there is no such thing as a will under our laws which does not dispose of property. As was said by this court through Tyson, J., in the case of Woodruff v. Hundley, 127 Ala. 640, 29 So. 98, 85 Am. St. Rep. 145: "One of the essential requirements to the validity of the instrument as a will is that it must be attested by at least two witnesses who must subscribe their names thereto in the presence of the testator. Code 1896, § 4263. Unless this requisite of the statute was complied with, the instrument was ineffectual to pass real or personal property. It was not a will at all within the purview of the statute, and cannot be admitted to probate. Proof of this essential requisite is just as necessary in order to probate the paper as a will as was a compliance with the statute necessary to give validity to it."

True, our statute authorizes testamentary executors and guardians, but that means that they should be named by a will, such a will as is defined by our court and which has been executed in compliance with the statute, and authorizes the issue of letters only after the will has been admitted to probate. Section 2507 of the Code of 1907. There are cases to the effect that there can be a will appointing an executor, but making no general disposition of the property, and that it can be proved as such. Mulholland v. Gillan, 25 R.I. 87, 54 A. 928, 1 Ann. Cas. 366, and cases there cited. Whether such a rule can prevail in our state we need not determine, but it could be doubtless upheld as a will for the reason that it is a special disposition of the property to the executor for administration purposes. It gives him the legal title to the personalty and the right to control or sue for the realty and to be operative and valid should be executed and proven as required by our statute. The paper in question was attested by but one witness, and was not therefore a will, and should not have been admitted to probate.

So the remaining question is, Was the decree of the probate court so admitting same conclusive as against a collateral attack? While the decree of the probate court declares the instrument in question to be proven and admitted it to probate, it shows upon its face that it was not a will under the laws of this state. The decree affirmatively shows upon its face, and in fact recites, that it was attested by but one witness W. A Shomo, "the only witness." If this was true, and we must consider all of the recitals of the decree, then the instrument offered was a nullity as a will. It did not purport to be a will, and gave the probate court no jurisdiction. The probate court may be a court of general jurisdiction in matters pertaining to the estates of decedents, but its general jurisdiction in probating wills must be confined to instruments which purport to be wills. It cannot be resorted to for the purpose of making something out of nothing. It has jurisdiction to probate wills, but not to convert something that the law says is not a will into a will, and thus nullify, or, in effect, amend or repeal, our statutes. The proceeding to probate a will is in rem, and, in order for the court to acquire jurisdiction and to proceed to a final decree, there must be a res, not a blank piece of paper or a paper which makes no attempt to, and does not in fact, purport to be a will. Of course, if a paper which purports to be a will is presented and is declared proven, and the decree does not show upon its face that it contravenes the law or public policy, the decree will be binding on the world upon collateral attack, and the paper thus probated becomes the last will and testament of the decedent, and governs the descent and distribution of his property. On the other hand, a decree which upon its face contravenes the law or public policy is coram non judice. The decree in question bespeaks its own impotency. It is void upon its face, and is subject to collateral attack. Black on Judgments, § 246. Our c...