Hays v. Bowden

• Decision Date: 18 February 1909
• Citation: 49 So. 122,159 Ala. 600
• Parties: HAYS v. BOWDEN ET AL.
• Court: Alabama Supreme Court

49 So. 122

159 Ala. 600

HAYS v. BOWDEN ET AL.

Supreme Court of Alabama

February 18, 1909

Rehearing Denied April 6, 1909.

Appeal from Chancery Court, Lee County; W. W. Whiteside, Judge.

Bill by Nettie Kate Bowden and another against Sarah Hays and others. From a judgment for plaintiffs, defendant Sarah Hays appeals. Affirmed.

Samford & Duke, Houston & Powell, and George A. Hays, for appellant.

R. B Barnes, for appellees.

MAYFIELD J.

This was a bill filed in the chancery court of Lee county to contest the will of T. T. McCoy, made on June 19, 1905, which was probated in the probate court of Lee county on the 11th day of December, 1905. The bill was filed by Nettie Kate Bowden, a married woman over the age of 18 years, who at the time of the filing of the bill, resided in the state of Georgia, but who was married in the state of Alabama after she had attained the age of 18 years, and by Rosa J. Bealle a married woman under the age of 18 years, who sued by her next friend, Albert H. Bealle. The bill was filed against Sarah Hays (who was formerly Sarah McCoy), the wife of the testator, over 21 years of age and residing in Lee county Ala., and against Millard Frank McCoy, William Tillman McCoy and Theophilus McCoy, minors, residing with their mother, Sarah McCoy, in Lee county; that is to say, the bill was filed by two of the children of the testator against the wife and other children of the testator.

The respondent Sarah McCoy, who subsequently married one Hays (and who will be hereafter referred to as Sarah Hays), demurred to the bill, assigning as grounds, first, that Nettie Kate Bowden was a nonresident and under the age of 21 years; second, that the said Nettie Kate Bowden could not join as a complainant in her own name; third, that she was not a proper party plaintiff; fourth, that the minor children, Millard Frank, William Tillman, and Theophilus McCoy, were not proper parties respondent, because not beneficiaries under the will; fifth, inconsistency of averments in the bill, in that it is averred that the testator was of unsound mind, and, further, that undue influence was exerted upon the testator to make the will; sixth, insufficiency of averment to show testamentary capacity, or to show that the will was procured by fraud or undue influence. Respondent also demurred to that part of the prayer of the bill which asked that the estate of the testator be divided according to the laws of Alabama, and, further, because both complainants were infants and could not maintain the present bill, either in their own name or by next friend. The case was submitted for decree upon demurrer, and, after its being duly argued and considered by the court, it was the order, judgment, and decree of the court that the demurrers were not well taken, and they were therefore overruled, from which judgment and decree this appeal is taken, with a summons and severance, and separate assignments of error by Sarah Hays alone.

We are unable to find any error in the decree of the chancellor overruling these demurrers. The bill was properly filed by these complainants under our statute, and it was also properly filed against the respondents. Though one of the complainants was under 21 years of age, the bill avers that she was married in the state of Alabama after attaining the age of 18 years. Under our statute this had the effect to remove her disabilities of nonage, and her removal to Georgia thereafter could not have the effect to make her a minor again, so far as the laws of Alabama are concerned. Consequently the bill was properly filed by her in her own proper name. The other complainant was a minor, though a married woman under the age of 18 years, and the bill was therefore properly filed in her behalf by her next friend. Section 2476 of the present Code of 1907 (section 17, Code of 1896) provides that infants not having guardians must sue by next friend, and must be defended by a guardian of the appointment of the court. Under section 2531 of the Code of 1896 (section 4499 of the present Code of 1907) the marriage of a woman over the age of 18, or the attainment by a married woman to the age of 18 years, has the effect to remove the disabilities of minority; and section 2527 of the Code of 1896 (section 4493 of the present Code of 1907) provides that a married woman must sue alone, as if she were sole, except as to certain actions, of which this is not one. These statutes are remedial in their nature, and should be construed to effect the purpose...