Kaplan v. Coleman

CourtSupreme Court of Alabama
Writing for the CourtSOMERVILLE, J. (after stating the facts as above).
Citation180 Ala. 267,60 So. 885
Decision Date21 December 1912

60 So. 885

180 Ala. 267


Supreme Court of Alabama

December 21, 1912

Rehearing Denied Feb. 6, 1913.

Appeal from Chancery Court, Calhoun County; W. W. Whiteside, Chancellor.

Suit by Robert Kaplan against Thomas W. Coleman and others, as executors of Lewis H. Kaplan, deceased. From a decree for defendants, complainant appeals. Reversed and rendered.

The appeal is prosecuted by Robert Kaplan from a decree of the chancellor's court holding certain pleas good and sufficient for the abatement of his suit, and their sufficiency for that purpose is the sole question presented. Appellant filed his bill of complaint in the Calhoun chancery court against appellees, as executors of the last will of his father, Lewis H. Kaplan, and the several beneficiaries named in the bill are also made parties defendants. The object of the bill is to contest the validity of the will, and the chief prayer is for a decree adjudging that the said pretended will is no will, and that the same is void and of no effect, and that it be annulled. There is also an incidental prayer that the executors be required to account to complainant for all the property belonging to the estate of the deceased, and that they be removed from office and be restrained from further interference with the estate. It appears from the bill that the testator was a resident of Atlanta in the state of Georgia; that he died about March 8, 1910, leaving complainant as his son and only legal heir; that three days before his death said decedent executed an instrument purporting to be his last will and testament; that said will was duly probated in the probate court of Calhoun county on April 2, 1910, and letters testamentary were issued to the respondents Coleman, Shepperd, and Wellborn, who are named as executors in the will; and that these persons have entered into possession of the estate and are assuming to control and administer it. The grounds of contest are: (1) That the will is improperly executed as to attesting witnesses under the laws of Georgia; (2) that it is void for want of testamentary capacity in the testator; (3) that it is void because it was procured by undue influence. The will makes several small personal gifts and provisions, provides an annuity of $50 per month to complainant, to be contingently enlarged to $100, creates a trust for complainant's children contingently, and gives all the rest of the estate in trust for certain charitable institutions in prescribed proportions, including a hospital to be founded by the executors at Anniston, of which they are to be trustees. It is provided that, if any of the several trusts should fail for any reason, the property devoted to its use should be prorated to those remaining, and, if all the others should fail, the whole shall go to Anniston Hospital. The bill attacks each one of these various trusts named in the will, on the grounds that they seek to create perpetuities, or are void for want of properly designated beneficiaries, or for the indefiniteness of their terms, and it contains a general prayer for relief. In abatement of this suit each of the respondents filed a special plea setting up the pendency of a prior suit in the same court and showing that this prior suit was begun by an original bill of complaint filed by said trustees against the said Robert Kaplan and the other beneficiaries named in the will for the purpose of securing a construction of the various provisions of the will and directions as to the proper execution of its several trusts. The plea further states that in the proceeding a decree pro confesso has been taken and entered against Robert Kaplan, the complainant here, which decree still stands against him.

Whitson & Harrison, of Talladega, for appellant.

Knox, Acker, Dixon & Sterne and Willett & Willett, all of Anniston, for appellees.

SOMERVILLE, J. (after stating the facts as above).

This bill is filed by the sole heir at law of the testator to contest and annul the will of the latter, in accordance with the provisions of section 6207 of the Code.

The sufficiency of the pleas in abatement, as filed by the executors of the will, must be tested primarily by a consideration of the object and scope of the pending suit for testamentary construction, and the nature of the remedy given by statute for the contest of wills in chancery.

A plea in abatement because of another suit pending bears a strong analogy to a plea of res judicata, and a fair test of its sufficiency is whether a final judgment or decree in the prior suit would be conclusive between the parties and operate as a bar to the second. Foster v. Napier, 73 Ala. 595, 604. And to be sufficient to abate the second action entirely, a final judgment or decree, when rendered in the first, must be good as a bar to the entire second action. Howell v. Howell, 171 Ala. 502, 54 So. 601.

In this state the jurisdiction of chancery courts to entertain bills for the construction of wills does not, as in most states, depend upon the theory of the equitable control and administration of trusts, and a suit for testamentary construction need not exhibit any necessity, nor any prayer, for any other equitable relief. Whenever the provisions of a will are of doubtful construction [60 So. 887] or of disputable solution, as to which rational minds may well differ, the jurisdiction arises. Cowles v. Pollard, 51 Ala. 445; Carroll v. Richardson, 87 Ala. 605, 6 So. 342. It is not necessary that a dispute shall have actually arisen; it is enough that it may arise, or that mistakes may occur, by reason of doubtful terms.

The bill filed by the executors in this case sufficiently shows a necessity for the construction of this will as a guide to its due and...

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45 cases
  • Segrest v. Segrest, 1190676
    • United States
    • Supreme Court of Alabama
    • December 4, 2020
    ...probate proceeding -- a proceeding not inter parties but in rem. McCann v. Ellis, 172 Ala. 60, 55 So. 303 [(1911)] ; Kaplan v. Coleman, 180 Ala. 267, 60 So. 885 [(1912)] ; Ex parte Walter, 202 Ala. 281, 80 So. 119 [(1918)] ; Newman v. Martin, 210 Ala. 485, 98 So. 465 [(1923)] ; Nesmith v. V......
  • Jemison v. Brasher, 6 Div. 848
    • United States
    • Supreme Court of Alabama
    • February 6, 1919
    ...v. Ashurst, 175 Ala. 667, 672, 57 So. 442; Ralls v. Johnson, 75 So. 926, 930; Pearce v. Pearce, 74 So. 952, 959; Kaplan v. Coleman, 180 Ala. 267, 60 So. 885; Carroll v. Richardson, 87 Ala. 605, 610, 6 So. 342. This, however, is changed by statute (Gen. Acts 1915, p. 738), and the right of r......
  • Segrest v. Segrest, 1190676
    • United States
    • Supreme Court of Alabama
    • December 4, 2020
    ...the probate proceeding -- a proceeding not inter parties but in rem. McCann v. Ellis, 172 Ala. 6, 55 So. 303 [(1911)]; Kaplan v. Coleman, 180 Ala. 267, 60 So. 885 [(1912)]; Ex parte Walter, 202 Ala. 281, 80 So. 119 [(1918)]; Newman v. Martin, 210 Ala. 485, 98 So. 465 [(1923)]; Nesmith v. Vi......
  • First Nat. Bank of Birmingham v. Brown, 6 Div. 828
    • United States
    • Supreme Court of Alabama
    • July 29, 1971
    ...It is to determine the status of the res; that is, whether there is a will or not, and not the rights of the parties. Kaplan v. Coleman, 180 Ala. 267, 60 So. 885; Ex parte Walter, 202 Ala. 281, 283, 80 So. 119; Nesmith v. Vines, 248 Ala. 72, 26 So.2d 265. With such a statement of law, we fi......
  • Request a trial to view additional results

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