Cone v. Barganier

• Decision Date: 28 June 1928
• Docket Number: 3 Div. 834
• Citation: 218 Ala. 292,118 So. 342
• Parties: CONE et al. v. BARGANIER et al.
• Court: Alabama Supreme Court

118 So. 342

218 Ala. 292

CONE et al. v. BARGANIER et al.

3 Div. 834

Supreme Court of Alabama

June 28, 1928

Rehearing Denied Nov. 1, 1928

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill by Jack Thorington and another, as executors of the estate of John W. Barganier, deceased, against Ella Barganier, F.E Cone, and others, devisees under the will, in which Ella Barganier filed a cross-bill.From decrees construing the will, setting apart dower and homestead to the widow, and confirming the report of the register on reference to ascertain the accounts of the executors, respondents Cone and others appeal.Affirmed.

C.H Roquemore, of Montgomery, for appellants.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appelleeElla Barganier.

THOMAS J.

Appellant urges here that the probate court acted upon the application for probate of the will of Mr. Barganier without all interested parties being brought before that court.This suggestion is untenable on appeal, without the question was reserved in the lower court and presented for review in the manner recognized by the courts.If appellant desired to duly present the question of parties, he should have moved the probate court to set aside the probate, or there become a party and sued out an appeal.

The probate of a will is in nature a proceeding in rem, and by appropriate procedure and pleadings, by a party in interest, may become inter partes.The probate of a will is conclusive on all parties, or persons in interest, until duly set aside on direct action or attack, and may not be impeached collaterally for an irregularity that may have intervened in the procedure and decree of probate.Hall's Heirs v. Hall,47 Ala. 295.The probate of a will is held to relate back to the death of the testator, and speaks as of that date.Murphree v. Griffis,215 Ala. 98, 109 So. 746, 48 A.L.R. 1032;Pearce v. Pearce,199 Ala. 491, 496, 74 So. 952;Caldwell v. Caldwell,204 Ala. 161, 85 So. 493;Harrison v. Harrison,213 Ala. 418, 105 So. 179;Brizendine v. Amer. Trust & Savings Bank,211 Ala. 694, 101 So. 618.

It is insisted by appellant that the action of the lower court was in error, in directing the personal representative to deliver personal property to the widow under the law and pursuant to her dissent from the will of her deceased husband.This objection is answered in the fact that the motion and objection to such action in the lower court, by appellant and others, to the granting of the widow's petition, was dismissed pursuant to his motion in open court; that is, it was upon appellant's motion to dismiss his objection that said order of dismissal was entered, and the judgment rendered so recites that its order or decree rendered of date of September 11, 1926, on the petition of Ella Barganier"be and is hereby in all things ratified, confirmed, and held in full force and effect."The court heard the evidence on the petition of Mrs. Barganier, ore tenus in open court, and under that pleading and issues of fact presented established and so decreed and ordered the right of said petitioner as the lawful widow of testator or decedent, Barganier.Moreover, the court in that proceeding and in that order and decree followed the analogy to be found in and prescribed for the payment of legacies, and how the same may be compelled of payment by a personal representative, and how payment may be made to a widow who has dissented from the will, to compel payment of her distributive share or interest in the estate of the deceased husband.Section 5975, Code.It may be that, if an appeal had been duly taken from the decree of September 11, 1926, directing the distribution of funds of the estate, it would, as to this action of the court, have been held a final decree.De Graffenreid v. Breitling,192 Ala. 254, 68 So. 265.It is, however, unnecessary to decide this question now.

The further insistence of appellant is that the trial court was in error in the construction given item 3 of the will of testator.This could not affect the rights of the widow who dissented from the will and took under the statute.That construction did not affect directly the executors; the widow by her dissent placed it beyond her power, if such was contained in the will, to rent the plantation to Hall.Her action defeated her right of rental and thereby removed the obstacle to the investing in Hall the storehouse and lot and the dwelling and lot at Cecil, Ala., then used and occupied by Hall.Item 3 is as follows:

"I hereby devise and bequeath to E.O. Hall the storehouse and lot at Cecil, Alabama, being the storehouse and lot now used by him and also the dwelling and lot at Cecil, Alabama, now used and occupied by him, to have and to hold as long as he rents the said Judkins, Sledge and Young plantations from my wife, said Ella Barganier, at the present rental and under the present terms and to own the said property in fee simple at the death of said Ella Barganier, or when she may refuse to rent the said Judkins, Sledge and Young plantations to him."(Italics supplied.)

When the widow dissented from the will, she renounced her right and title thereunder to the Judkins, Sledge, and Young plantations, which had been devised to her by item 2 "for and during the term of her natural life."Thereafter her only interest was that for the assignment of dower, a mere chose in action, "a right lying in action," rather than a legal title (Upshaw v. Upshaw,180 Ala. 204, 60 So. 804;Yarbrough v. Yarbrough,200 Ala. 184, 75 So. 932;Whitehead v. Boutwell,117 So. 623;Bettis v. McNider,137 Ala. 588, 34 So. 813, 97 Am.St.Rep. 59;Reeves v. Brooks,80 Ala. 26); that is to say, after her dissent, it was impossible for her in law and in fact to rent to Hall the places named in the will.After that dissent Ella Barganier was not the owner of the life estate; that intervening estate being removed was the happening of the contingency, stipulated for by the testator, when Hall should become owner of the storehouse, dwelling, and lots on which same respectively stood, in fee simple.This was the correct construction of the lower court, was in accord with that of testamentary instruments and the intention of testator, and was within the law.

The fact that the property was under lease between testator and Hall, at the time of testator's death or probate of his will, did not impose conditions on Hall not contained in the will, as to his duty in the premises and his title to the property, which the will speaks of, on date of the death of testator; yet conditions imposed on his title to the property devised were affected by the dissent that related back to title.

The exceptions of the guardian ad litem, for the minors, to the confirmation of the report of the commissioners setting apart to the widow homestead and dower rights, were withdrawn at the...