Appeal from Circuit Court, Madison County; Schuyler
H. Richardson, judge.
The amendment of June 13, 1940, to the bill is as
follows:
"First
by striking Paragraph 1 and adding in lieu thereof the
following:
"
'1. That Virginia K. Hall, departed this life in Coffee
County, Tennessee, on or about the 29th day of March, 1937
leaving assets consisting of real and personal property, both
in Coffee County, Tennessee, and in Madison County, Alabama
and leaving surviving her no issue, having never been
married, and that your Orators are the next of kin and heirs
at law entitled to share in the distribution of her estate
under the laws of the State of Alabama, and under the laws of
the State of Tennessee.'
"Second,
by adding Paragraph 10, which is in words and figures as
follows:
"
'10. At the time of the death of the said Virginia K.
Hall, she owned and had in her possession, a large amount of
valuable personal property, consisting of notes, mortgages,
stocks, bonds, annuities and other evidences of indebtedness,
the exact nature, character and amount of which is unknown to
your orators, and that after the death of the said Virginia
K. Hall, the said Eva M. Proctor did unlawfully and
fraudulently enter into or go into the safe or private boxes
of the said Virginia K. Hall, without notifying any of the
relatives or heirs at law of the said Virginia K. Hall, and
took possession of said personal property and did remove said
personal property from the State of Tennessee, and brought
the same to Madison County, Alabama, and that said personal
property is now in the possession of Francis Esslinger, as
administrator with the will annexed of the estate of Virginia
K. Hall, deceased, and is being administered by the Circuit
Court of Madison County, in Equity; that said personal
property descends to your Orators under the statute of
descent and distribution of the State of Tennessee, and that
the probate of the alleged will of the said Virginia K. Hall
would deprive your Orators of their rights in said personal
property as heirs at law and next of kin of the said Virginia
K.
Hall,
under the laws of the State of Tennessee.'
"Third,
by adding Paragraph 11, which is in words and figures as
follows:
"
'11. That upon the death of Virginia K. Hall, Lula E.
Miller deceased, became the only heir at law and next of kin
of the said Virginia K. Hall, under the statute of descent
and distribution of the State of Alabama, and that since the
death of the said Lula E. Miller, the complainants, Clare M.
O'Neal and Henry Miller are only heirs at law and next of
kin of the said Virginia K. Hall, deceased, under the laws of
descent and distribution of the State of Alabama; and your
Orators aver that the said Clare M. O'Neal and Henry
Miller are persons interested in the will of Virginia K. Hall
and that they have not previously contested the same, and are
now entitled to contest the will of the said Virginia K.
Hall, deceased.'
"Fourth
by adding Paragraph 12 which is in words and figures as
follows:
"
'12. That according to the laws of descent and
distribution of the State of Tennessee, the complainants in
this cause are all the heirs at law and next of kin of the
said Virginia K. Hall, deceased, entitled to share in the
distribution of her estate. A copy of said laws of descent
and distribution of the State of Tennessee is hereunto
attached and marked Exhibit "B" and prayed to be
taken as a part hereof as fully and completely as if set out
herein.'
"Fifth,
by adding Paragraph 13 which is in words and figures as
follows:
"
'13. That after the death of the said Virginia K. Hall,
and before that certain instrument in writing alleged to be
the last will and testament of Virginia K. Hall, deceased,
bearing date of May 26, 1922, was admitted to probate in
common form as the last will and testament of Virginia K.
Hall, deceased, in the Probate Court of Madison County,
Alabama, on the 3rd. day of May, 1937, each of the
Complainants acquired a vested interest in the real and
personal property belonging to the estate of the said
Virginia K. Hall, by an instrument in writing executed by all
the heirs at law and next of kin of the said Virginia K.
Hall, under the laws of the State of Alabama, and under the
laws of the State of Tennessee, being executed by Lula E.
Miller, deceased, and all the other Complainants, being all
the heirs at law and next of kin of Virginia K. Hall,
deceased.'
"And
your Orators aver that they and each of them are persons
interested in the will of Virginia K. Hall, deceased, having
acquired a vested interest therein by an
instrument in writing, executed by Lula E. Miller, as
aforesaid, prior to the probate of said alleged will, and
having not previously contested said will in said Probate
Court are now entitled to contest said will of the said
Virginia K. Hall, deceased, in this cause."
Wm.
Russell Wright, of Hartsville, Tenn., and Ed. D. Johnston and
Geo. P. Cooper, both of Huntsville, for appellants.
Lanier,
Price, Shaver & Lanier, Griffin & Ford, W.F.
Esslinger, and Francis Esslinger, all of Huntsville, and Roy
L. Mitchell, of Tullahoma, Tenn., for appellees.
BOULDIN, Justice.
The
original bill, filed in March 1937, sought to contest the
will of Virginia K. Hall, deceased, after probate, in the
Probate Court of Madison County. Our statute reads: "Any
person interested in any will, who has not contested the same
under the provisions of this article, may, at any time
within the six months after the admission of such will to
probate in this state, contest the validity of the same by
bill in equity in the circuit court in the county in which
such will was probated." Code of 1940, Title 61, § 64.
The
litigation down to the final decree of March 17, 1941,
sustaining demurrers to the bill as last amended and
dismissing the bill, has been directed to one question: Does
the bill as amended disclose that complainants are parties
entitled to contest under above statute?
The
cause was here on former appeal from a decree dismissing the
bill for want of prosecution. The decree was reversed and
cause remanded for reasons stated in the opinion. Hall et
al. v. Proctor et al. 239 Ala. 211, 194 So. 675, 676. As
a background for the later proceedings now for review we
quote at some length from that opinion:
"A
further ground of the motion to dismiss the appeal is that
this is now a moot case, and no relief can be had, if
reversed and remanded. This insistence is based on these
facts: The bill is to contest a will in equity after due
probate in the Probate Court.
"By
the amended bill complainants claim as heirs and distributees
of decedent; but further discloses they are collateral next
of kin, viz: One an aunt of the testatrix, the others first
and second cousins.
"The
point is made that in such case, the aunt alone is the next
of kin, and the cousins not heirs or distributees under our
statutes of descent and distribution.
"This
is a correct legal proposition. The aunt is nearer of kin
than cousins under our statutory rule. Code, § 7368 [Code
1940, Tit. 16, § 4]. These cousins cannot take by
representation. There is no representation among collateral
kin beyond the descendants of brothers and sisters of
decedent. Code, § 7367 [Code 1940, Tit. 16, § 3]; Danzey
v. State, 126 Ala. 15, 28 So. 697.
"It
further appears that the aunt, one of contestants, died
during the pendency of the suit. Her right of contest was
personal; it died with her, and was not subject to revivor.
No effort was made so to do. Ex parte Liddon, 225 Ala. 683,
145 So. 144; Allen et al. v. Pugh, 206 Ala. 10, 89
So. 470.
"But
the bill alleges the decedent was a resident of the State of
Tennessee at the time of her death. The will purports to
dispose of personalty, and also real estate situated in
Tennessee. The laws of the State of Tennessee are not
disclosed by the record, either the laws of descent and
distribution, or the laws touching the probative effect of
the record of probate in Alabama.
"So,
it does not affirmatively appear that these cousins of
decedent would not take as heirs, or distributees, or both,
if there be no will. We are not dealing with the showing, in
pleading and proof, required in the further progress of the
cause. We are merely saying, it does not conclusively appear
the case has become moot."
When the cause was remanded, the bill was dismissed
as to complainant, Lula E. Miller, on motion of respondents.
Thereupon,
demurrers were interposed to the bill, as thus amended,
raising in numerous ways the question of proper parties
complainants.
The
pertinent averments of the bill at that stage appeared in
Section [1] of the original bill, and paragraph 9, added by
amendment, which read:
"1.
That Virginia K. Hall, late a resident citizen of the County
of Coffee, State of Tennessee, departed this life in said
County and State, on or about the 29th day of March, 1937
leaving assets consisting of real and personal property both
in the County of Coffee, State of Tennessee, and in the
County of Madison, State of Alabama, and leaving surviving
her, no issue, having never been married, and that your
orators are the next of kin and heirs at law entitled to
share in the distribution of her said estate."
"9.
The complainant, Millard F. Hall is a first cousin, the
complainant, Eva Chapman, a second cousin, the complainant,
Betty Reese, a first cousin, Alfred R. Dalton, a second
cousin, Gladys D. Stafford, a second cousin, Irby Dalton a
second cousin, Mrs. Joe D. Hankins a second cousin, Annie L.
English, a second cousin, Mildred Key Clark a third cousin
and Edward Key a third cousin of Virginia K. Hall, deceased;
"Lula...
