Elmore v. Stevens

• Decision Date: 30 January 1912
• Parties: ELMORE v. STEVENS.
• Court: Alabama Supreme Court

57 So. 457

174 Ala. 228

ELMORE v. STEVENS.

Supreme Court of Alabama

January 30, 1912

Appeal from Probate Court, Montgomery County; J. B. Gaston, Judge.

Application by Belle P. Elmore against Rose Tolliver Stevens to contest a will. From a judgment upon a demurrer sustained to the application, petitioner appeals. Affirmed.

Simpson and Anderson, JJ., dissenting; McClellan, J., dissenting in part.

Ludlow Elmore, for appellant.

J Winter Thorington, for appellee.

SAYRE J.

This case comes here on appeal from a judgment of the probate court sustaining a demurrer to appellant's application to contest the probate of an alleged will which had been propounded for probate as the last will and testament of Hannah Chambless, deceased. Appellant sought to contest on the ground, among others, that the paper writing propounded as a will was a forgery. The facts going to show contestant's interest are these: Hannah Chambless died in 1891. Appellant in her petition to be admitted to contest avers that she purchased certain real estate from Edith Tolliver Richardson in 1902, and that said Edith Tolliver Richardson was the only heir at law of Hannah Chambless. The petition for probate, which was filed in 1911, avers Edie Tolliver, Rosa Tolliver, Willie George Tolliver, and Kate Tolliver to have been the testator's next of kin and devisees under her will, all of whom have departed this life without children or descendants of children save proponent who is the sole heir at law of Rosa Tolliver. The petition for contest avers that "petitioner's interest will be injuriously affected by the allowance of said alleged or pretended will."

Appellant's theory of her right to contest is that her purchase from the sole heir at law of realty which the will purported to vest in devisees, other than her vendor, gave her such an interest in the will as authorized her to contest under the statute which permits a will, before probate, to be contested by "any person interested therein." Code 1907, § 6196. We would be ready to concede the correctness of appellant's position if the averments of her petition for contest sustained the statement of facts to be found in the brief. We are of opinion that one who in good faith after the death of the owner acquires an interest in property from persons standing in the relation of heirs to the decedent which interest is subsequently about to be divested by the probate of a will purporting to divert the property from the path of descent it would take under the statute, may contest the will. It seems to us, as at present advised, that, if the propounded will was in law and fact no will, such a purchaser ought to be allowed to show the fact, for he can have relief in no other way, since the probate of the will is conclusive proof of its due execution. The decision in Lockard v Stephenson, 120 Ala. 641, 24 So. 996, 74 Am. St. Rep 63, does not interfere with this conclusion. The point of the decision in that case was that a creditor of one who would have inherited property, if there had been no will, could not contest. If the language of the opinion went beyond the necessities of the case, there is nothing to indicate that the court had in mind such a case as that here presented. A purchaser claiming through a person who, if the testator had died intestate, would have been an heir or distributee, is as clearly interested in the will as his vendor would have been had he not disposed of his ostensible interest. In the earlier case of Montgomery v. Foster, 91 Ala. 613, 8 So. 349, the court used language which had effect to define those interested in a will as including those having an interest to be conserved by defeating its probate...