Griffin v. Milligan

• Decision Date: 01 February 1912
• Citation: 58 So. 257,177 Ala. 57
• Parties: GRIFFIN v. MILLIGAN.
• Court: Alabama Supreme Court

58 So. 257

177 Ala. 57

GRIFFIN v. MILLIGAN.

Supreme Court of Alabama

February 1, 1912

Rehearing Denied April 12, 1912.

Appeal from Probate Court, Pike County; A. C. Edmonson, Judge.

Proceeding by Leonard Griffin for the probate of the will of Martha A Motes, deceased, in which Jack O. Milligan filed a petition for contest. From a judgment refusing probate, proponent appeals. Dismissed.

Mayfield J., dissenting.

A. G Seay, of Troy, for appellant.

E. R Brannen, of Troy, for appellee.

SAYRE J.

Ten years after the death of Martha A. Motes, Leonard Griffin propounded and sought to establish an alleged will of said Martha A. Motes, averring that the said will had been lost or destroyed, and that his mother, Matilda A. Motes, who resided at Goshen, in this state, was the only child of deceased. J. O. Milligan filed his petition for contest, averring, in order to show his interest, that, five years after the death of Martha A. Motes, he had purchased a part of the land, disposed of by the alleged will to proponent, from said Matilda A. Motes, who was then in possession claiming to own the same. The court refused to consider Milligan's contest, on the ground that he had no interest in the will. A contest properly framed to show Milligan's interest should have been allowed. Elmore v. Stevens, 57 So. 457. But, proceeding to hear the evidence for the will, the court refused probate. From that decree Griffin appeals, notice of the appeal having been served upon E. R. Brannen, Esq., alone, who seems to have had no connection with the case, except as the attorney for Milligan. Milligan seeks to be relieved of responsibility in the premises by moving specially that his name as appellee be stricken from the record.

"Whenever an application is made to prove a will in this state, at least 10 days' notice must be given to the widow and next of kin, or either of them, residing and being within the state, before such application is heard." Code, § 6193. Section 2855 of the Code authorizes an appeal from any final decree of the court of probate. "Upon an appeal being taken * * * the judge of probate must issue a citation to the adverse party," etc. Section 2881. The probate of a will is in the nature of a proceeding in rem. It assumes the nature of a proceeding inter partes only when there is an intervention of parties litigant, and an actual contest ensues. Dickey v. Vann, 81 Ala. 425, 8 So. 195. There was...