Cain v. Burger

• Decision Date: 21 March 1929
• Docket Number: 6 Div. 209.
• Citation: 219 Ala. 10,121 So. 17
• Parties: CAIN ET AL. v. BURGER ET AL.
• Court: Alabama Supreme Court

121 So. 17

219 Ala. 10

CAIN ET AL. v. BURGER ET AL.

6 Div. 209.

Supreme Court of Alabama

March 21, 1929

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity, contesting a will, by Estelle B. Cain, as administratrix of the estate of George W. Turton, deceased and others, against Jacob Burger and others. From a decree sustaining a demurrer to the bill and dismissing it complainants appeal. Affirmed.

Charles W. Greer and Harsh & Harsh, all of Birmingham, Francis Hare, of Monroeville, and Geo. Earl Hoffman, of Pensacola, Fla., for appellants.

Smyer & Smyer and Ritter, Wynn & Carmichael, all of Birmingham, for appellees.

BOULDIN J.

The will of Sallie Turton Duport, deceased, was duly admitted to probate in the probate court of Jefferson county.

George W. Turton, brother of decedent, was her sole heir and distributee. He did not contest the probate of the will in the probate court. Within twelve months after such probate he died intestate.

After his death and still within twelve months from the date of probate, his personal representative, his widow, and his children joined in filing this bill to contest the will in equity. Code, § 10637.

The trial court held the bill subject to demurrers going to the right of complainants to maintain the suit; further held that it was incapable of amendment, and dismissed it.

If any one or more of the complainants are entitled to contest the will in equity, this ruling was error. Code, § 6645; Bowdoin v. T. S. Faulk & Co., 204 Ala. 280, 85 So. 503.

Our statute granting "any person interested in any will, who has not contested the same" at the time of probate, additional time to contest by bill in equity, dates from early times.

In Knox v. Paull, 95 Ala. 505, 11 So. 156, the question was raised whether this statute was limited to interested parties who were without notice of the probate proceedings or otherwise deprived of opportunity to contest the will in the first instance. In that decision it was noted that a remedy for such irregularity exists under general rules of law, a timely application to set aside the probate. Sowell v. Sowell's Adm'r, 40 Ala. 243.

Touching the purpose of the statute, in Knox v. Paull, supra, it was said: "The application to prove the will usually follows close upon the death of the testator. The application comes on for hearing as soon as the short prescribed terms of notice have expired. It must frequently happen that persons interested in the proceeding are wholly unable, while it is pending, to inform themselves as to the instrument offered for probate, or of the circumstances attending its execution. Facts affecting its validity may be developed afterwards, and the failure to discover them, or to obtain the evidence to prove them, may have been without the fault or any lack of diligence on the part of those interested in making a contest. In view of such contingencies, there is manifest propriety and justice in allowing a reasonable time after a formal and regular probate, for a contest of the validity of the will by one who did not make a contest in the probate court. We have no doubt that this was the intention of the statute."

Following this line of reasoning it has become the established construction that the statutory right to contest in equity is an extension of the right to contest in the probate court, a right unhampered by any question of neglect to contest in the first instance. Kaplan v. Coleman, 180 Ala. 267, 60 So. 885.

The questions now presented are in the main covered and governed by the decision in Allen v. Pugh, 206 Ala. 10, 89 So. 470. That case directly involved the right of contest in equity by a descendant of the next of kin living at the time of the probate proceedings but dying within less than twelve months thereafter. Complainant claimed to be a party "interested in the will" as next of kin of the testator at the time the bill was filed.

Construing this statute in the light of its terms, the former decisions of this court, related statutes, and decisions of other states, that decision, in effect, declares: That the right to contest in equity is limited to those who could have contested in the probate court; that such right or privilege is personal, is not a property right, does not pass by descent, and is not assignable. Persons "interested in the will" are determinable as of the date of the probate proceedings. Only these may contest in equity.

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