Hall v. Proctor

• Court: Alabama Supreme Court
• Writing for the Court: BOULDIN, Justice.
• Citation: Hall v. Proctor, 242 Ala. 636, 7 So.2d 764 (Ala. 1942)
• Decision Date: 16 April 1942
• Docket Number: 8 Div. 122.
• Parties: HALL et al. v. PROCTOR et al.

7 So.2d 764

242 Ala. 636

HALL et al. v. PROCTOR et al.

8 Div. 122.

Supreme Court of Alabama

April 16, 1942

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...