Ex parte Walter

• Decision Date: 20 June 1918
• Docket Number: 3 Div. 364
• Citation: 80 So. 119,202 Ala. 281
• Parties: Ex parte WALTER et al.
• Court: Alabama Supreme Court

80 So. 119

202 Ala. 281

Ex parte WALTER et al.

3 Div. 364

Supreme Court of Alabama

June 20, 1918

Rehearing Denied Nov. 14, 1918

Original petition in the Supreme Court by J.A. Walter and others for writ of mandamus directing the Judge of the Circuit Court of Montgomery County to vacate an order. Writ denied.

Sayre and Somerville, JJ., dissenting.

This is a petition for a writ of mandamus to be directed to the judge of the circuit court of Montgomery, instructing him to vacate an order directing the register to strike from the bill of complaint--mentioned in the petition and record--certain portions thereof.

The petition shows that the petitioners, who are among the heirs at law of one Duncan C. Walter, deceased, filed a bill in the circuit court of Montgomery county, in equity, against Jesse B. Walter, seeking thereby to contest, vacate, and annul an instrument in writing purporting to be the last will and testament of said Duncan C. Walter, dated September 23, 1916 and the probate thereof, wherein the said Jesse B. Walter is named as sole beneficiary.

The bill referred to in the opinion as an exhibit to the petition was filed by the children of T.B. Walter, and against J.B Walter and others, seeking to annul the probate of a will and the cancellation of a deed or deeds.

The bill alleges, in effect: That Duncan C. Walter departed this life in Montgomery county in May, 1917, leaving a large estate of personal and real property valued at $200,000, and certain heirs, brothers and sisters, and complainants who are the children of a brother who died prior to Duncan Walter. That in June, 1917, an instrument purporting to be a will of Duncan C. Walter was admitted to probate in the probate court of Montgomery county, without contest by any one, and Jesse B. Walter was appointed executor thereof. That on January 3 1917, a paper purporting to be a deed of said Duncan C Walter, signed D.C. Walter, was filed in the office of the judge of probate of Montgomery county, conveying or purporting to convey to the defendant Jesse B. Walter, written J.B. Walter, a large amount of real property for a recited consideration of love and affection and $5. The deed and the will, or a copy thereof, are attached to the bill as exhibits.

Complainants are advised and informed that Jesse B. Walter has, or claims to have, an instrument in writing in form a bill of sale or transfer from Duncan C. Walter, deceased, conveying, or purporting to convey, to him all of the personal property which was owned by Duncan Walter, but complainants cannot produce a copy as an exhibit, and ask that Jesse Walter be required to produce or discover the same.

It is averred: That the will, the deeds, and the bill of sale are void and of no effect because (a) they were not the voluntary act of the said Duncan C. Walter, deceased; (b) the said Duncan C. Walter was, at the time the said instruments of writing purport to have been executed, of unsound mind and mentally incapable of executing the same; and (c) at the time said several instruments were signed by the said Duncan C. Walter, if signed by him at all, the said Duncan C. Walter was old, to wit, 78 years of age, sick and diseased, and of feeble mind, and the several instruments were wrongfully procured by the said Jesse B. Walter by the exercise of undue influence over him, the said Duncan C. Walter. That the said several instruments were, each of them, procured by the said Jesse B. Walter pursuant to a deliberately formed plan, scheme, and design on the part of the said Jesse B. Walter, the grantee and beneficiary therein. Here follows prayer as indicated above, and for general relief.

Respondent Jesse B. Walter moved the court to strike from the bill of complaint the allegations in reference to the execution of the deed and the bill of sale, which said motion was granted. The court below directed the register "to strike from the bill, and the prayer of the same, the statements contained therein in reference to the deed and transfer alleged to have been made by D.C. Walter, deceased." To vacate this order, this petition for mandamus was presented.

Steiner, Crum & Weil, Rushton, Williams & Crenshaw, and John R. Tyson, all of Montgomery, for petitioners.

W.A. Gunter and Hill, Hill, Whiting & Thomas, all of Montgomery, for respondents.

GARDNER J.

The bill of complaint filed by the petitioners against respondent Jesse B. Walter has for its primary purpose the contest of the probate of the will of Duncan C. Walter, which was duly admitted to probate in the probate court of Montgomery county without contest.

In separate paragraphs of the same bill, however, the validity of a certain deed to real estate, and a bill of sale to personal property, executed at different times by the said Duncan C. Walter to respondenat Jesse B. Walter, is attacked. These instruments are likewise sought to be canceled and annulled.

Motion was made to strike from the bill of complaint the averments in reference to the deed and the bill of sale as immaterial and impertinent, and not properly contained in a bill--the primary object of which is to contest a will.

It is conceded that mandamus is the proper remedy, there being no other adequate relief for petitioners if they are entitled to relief. The foregoing is the sole question presented for consideration here.

It is clear and not controverted that a suit to set aside a deed or a bill of sale for fraud or undue influence is a proceeding inter partes, and binding only upon those who are parties to the suit and their privies.

It is contended by counsel for respondents to this petition that a proceeding to contest a will in a court of equity, under the provisions of the statute, is a proceeding in rem, and that the questions for consideration are necessarily confined to that issue; any other matters presented being immaterial, and, therefore, impertinent, and subject to be stricken. This is the theory upon which the trial court proceeded.

In Bromberg v. Bates, 98 Ala. 621, 13 So. 557, it was said that--

"An impertinent fact is one whether true or not, can have no influence in leading to a result."

In Fletcher, Eq.Pl. & Pr. § 117, it is said:

"Impertinence consists of any allegation that is irrelevant to the material issues made or tendered. It involves more than prolixity, and consists in recitals of fact which are entirely immaterial to the issue."

If it be conceded, therefore, that the matters set up in the bill, as to the deed and bill of sale, are wholly immaterial to any issue presented, or that could be presented in the bill, as one to contest the probate of the will, then, we are of the opinion that, under the rule above cited, these averments may, upon motion, be properly stricken as impertinent.

We have said that the bill is clearly one having for its primary purpose the contest of the will, and this, we think, necessarily follows from the consideration of its frame and character; and from the further fact, it appears upon its face the complainants in that bill are entitled to no relief whatever as to the deed and bill of sale, so long as the probate of the will remains undisturbed. The will had been duly admitted to probate, and its probate was a proceeding in rem, binding and conclusive upon the world until set aside as provided by law. Such being the case, therefore, the bill shows upon its face that the complainants are entirely without interest as to the deed and bill of sale, unless the bill to contest the probate of the will is successfully terminated. Their interest as to the deed and bill of sale is entirely contingent upon the result as to the contest of the will. The bill is clearly filed primarily to contest the will of Duncan C. Walter, deceased, in a court of equity, as provided by section 6207 of the Code of 1907.

In McCann v. Ellis, 172 Ala. 60, 55 So. 303, it was held that a proceeding to set aside the probate of a will was a proceeding in rem, to determine exclusively the status of the res, and not the rights of the parties. We take the following pertinent excerpt therefrom:

"It has been uniformly ruled by all English and American cases which we have examined that proceedings to probate or to set aside the probate of wills are proceedings in rem and not in personam; that such proceedings are exclusively to determine the status of the res, and not the rights of the parties. Judgments or decrees as to the status of the res, in proceedings strictly in rem, are conclusive against all the world as to that status; while such judgments as to the rights of parties, whatever may be the point adjudicated, not being as to the status, are only conclusive between the parties or privies to the suit."

Subsequently, in Kaplan v. Coleman, 180 Ala. 267, 60 So. 885, it was said:

"The probate of a will is a judgment in rem. *** Its validity and effect can be contested and vacated only by a seasonable appeal, or by a bill filed under the statute. It determines the status of the res; that is, whether there is a will or not, and not the rights of the parties under the will. *** The contest of a will in chancery is in the nature of a proceeding in rem. If successful, the decree is conclusive that there is no will either in whole or in part as the contest may be framed and the proof may show."

It is conceded by counsel for petitioners that a proceeding to probate a will is a proceeding in rem; but it is insisted that the contest of a will in a court of equity, under the statute, is a proceeding inter partes or in personam. When however, it is considered that the contest of a will in a court of equity under the statute is in fact but an extension of the time of contest, and, in reality, but another form of defense to its probate, the logic of the reasoning...