Bowe v. Pierson

• Citation: 89 So. 711,206 Ala. 250
• Decision Date: 02 June 1921
• Docket Number: 6 Div. 187
• Parties: BOWE v. PIERSON et al.
• Court: Supreme Court of Alabama

89 So. 711

206 Ala. 250

BOWE v. PIERSON et al.

6 Div. 187

Supreme Court of Alabama

June 2, 1921

Rehearing Denied June 23, 1921

Appeal from Probate Court, Jefferson County; J.P. Stiles, Judge.

Contest of the probate of the will of Lizzie Howard; Laurena Pierson and others being the proponents, and Richard Bowe, by guardian, and others, being contestants. From a decree admitting the will to probate contestants appeal. Appeal dismissed.

Vassar L. Allen and Willard Drake, both of Birmingham, for appellants.

J.L Drennen, of Birmingham, for appellee.

THOMAS J.

The appeal is from a decree of probate of the will of Lizzie Howard, deceased, on petition of Laurena Pierson and Callie Southerland, of date April 9, 1920.

At the trial, contestants Hattie Hayes and Annie Clark withdrew all specifications except the first and second grounds, and thereupon an issue was made up under the direction of the court, being whether or not the instrument offered for probate was executed by testatrix as her last will and testament, and whether or not at the time of its execution she possessed that mental capacity required by law for the execution of her last will. Upon the trial, a verdict of the jury was returned in favor of proponents, establishing the validity and authorizing the probate of said will; whereupon the decree of the court was rendered on such verdict.

The contest was filed on May 5, 1920; the decree of probate, of date August 17. The motion for new trial by Hattie Hayes and Annie T. Clark (the contestants) and Richard Bowe, a minor by Willard Drake, guardian ad litem, was filed on August 28 and was set for hearing September 11. On that day an order was made passing said hearing to September 22, and the order overruling the motion was duly made on October 5.

The notice of appeal of date November 4 has no date of its filing indorsed thereon. The "order on filing appeal to Supreme Court" was of date November 5, and to the effect that the appeal was taken "on this day," etc.

The cause is submitted on the motion and on merits. In support of the motion to dismiss the appeal counsel for appellee insist that an appeal to the Supreme Court by the party aggrieved from a decree on a contest as to the validity of a will must be "taken within thirty days after the determination of the contest." Code 1907, § 2856; Lanier v. Russell, 74 Ala. 364;

Ex parte Sumlin, 204 Ala. 376, 85 So. 810.

The pertinent parts of the statute are as follows:

"Appeal from the decree of the court of probate, or from the order, judgment, or decree of the judge of probate, may be taken by the party aggrieved to the circuit or Supreme Court, in the cases and within the time hereinafter specified, under the same rules and regulations which govern other appeals:

"(1) From the decree or judgment on a contest as to the validity of a will, to be taken within thirty days after the determination of the contest."

See Griffin v. Milligan, 177 Ala. 57, 58 So. 257.

As to the time of taking the appeal, was it within the 30 days prescribed by statute (Code, § 2856), by the rule of excluding the first and including the last day (Code, § 11; Cochran v. State, 89 So. 278; Rice v. Beavers &amp Co., 196 Ala. 355, 71 So. 659; Caravella v. Bernheim Dist. Co., 13 Ala.App. 458, 460, 69 So. 241)?

The motion for a new trial by Hattie Hayes, Annie Clark, and Richard Bowe, a minor, by guardian ad litem, is predicated on several grounds: That the verdict of the jury was contrary to the weight of the evidence, and for the giving at the request of proponents written charges 1 and 3, and for the refusal to give at the request of contestants written charges 6 and 11. The primary question is: Was the minor respondent to the petition for probate a party aggrieved that may appeal from the adverse decree in question, under Code, §§ 2855, 2856?

A reference to the initial pleading discloses that the will was propounded for probate by Laurena Pierson and Callie Southerland, their petition showing, as next of kin (among others) of testatrix, Annie Clark and Hattie Hayes, each of whom was over the age of 21 years, and Richard Bowe, a minor under the age of 14; that an order was entered setting a day to hear the petition for probate provision for due notice made; that "Willard Drake, county guardian ad litem, and an attorney at law, who is deemed by the court a fit and proper person and who is not related by blood or marriage within the prohibited degree to either the applicant or solicitor or attorney for applicant, or to the judge or clerk of this court, be and he is hereby appointed guardian ad litem for Richard Bowe, a minor under the age of 14 years, to represent and protect his interest upon the hearing of this proceeding; and further that said Willard Drake have notice of his said appointment." This order was followed by an instrument, under the hand of J.P. Stiles, judge of probate, of notice of appointment of the said Willard Drake to act as guardian ad litem for Richard Bowe, a minor, "to represent and protect his interest, upon the application of Laurena Pierson and Callie Southerland to probate will of Lizzie Howard, deceased." His written acceptance on April 9, 1920, of the appointment contained the additional statement that the guardian ad litem did "hereby deny all the allegations contained in said application." Such was the pleading of the minor in the probate court. The contest by Hayes and Clark was not at such time filed, but was of date May 5, 1920.

In subsequent orders of the court are recitals of the appearance of attorneys for petitioners and attorneys for contestants and in the decree probating the will is the recital that--

"The hearing of the application of Laurena Pierson and Callie Southerland, to probate an instrument of writing purporting to be the last will and testament of Lizzie Howard, deceased, and it appearing to the satisfaction of the court that notice of the filing of said application and the time appointed for hearing the same has been given in pursuance of law and in strict accordance with the former order of this court made and entered in the premises on the 9th day of April, 1920; comes now the said Laurena Pierson and Callie Southerland in their own proper person and by the attorney; also comes Annie Clark and Hattie

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