Knox v. Paull

• Citation: 95 Ala. 505,11 So. 156
• Parties: KNOX ET AL. v. PAULL ET AL.
• Decision Date: 19 May 1892
• Court: Alabama Supreme Court

11 So. 156

95 Ala. 505

KNOX ET AL. v. PAULL ET AL.

Supreme Court of Alabama

May 19, 1892

Appeal from chancery court, Montgomery county; JOHN A. FOSTER Chancellor.

Bill to contest a will by W. C. Paull and Mary Grace Smith against William Knox and others, executors. Decree for plaintiffs. Defendants appeal. Affirmed.

The first plea was, in effect, that the complainants had notice of the former contest in the probate court, having been summoned to the proceedings of probate; that they participated in such contest as witnesses for the contestant Edward N. Knox, and that they abstained deliberately from appearing nominally as defendants in said contest proceedings, under advice of their counsel, who was the same attorney who then, as now, represents them. The plea avers that the complainants in this suit refused to be contestants of the will in the probate proceedings for the purpose of taking the chance of a new contest in chancery, and that they are bound by the decision in that case in favor of proponents. The second plea, averring substantially the same facts, showed, in addition thereto, the details of the proceedings in another case, which was had for the purpose of a partition of the property over which the testatrix had the power of disposition, wherein the complainants availed themselves of the contest of the will of Edward Knox. Upon the submission of the cause on these pleas the chancellor decreed that each plea was insufficient to defeat complainants in obtaining the relief prayed for in the bill. The defendants now prosecute this appeal, and assign as error the decree of the chancellor declaring the pleas insufficient.

Semple & Gunter and H. C. Thompkins, for appellants.

Chas. Wilkinson, for appellees.

WALKER J.

At the common law the probate of a will by which real estate was devised was without effect upon the title to that species of property. Indeed, so far as real estate was concerned, there was no such thing as the probate of a will in the sense in which the term was used in reference to wills of personal property. The latter class of wills could be probated either in common form or in solemn form. A probate in common form was permitted without notice to parties in interest, and without affording them an opportunity to contest. They were not required to abide by the result of such a summary proceeding if they chose to demand that the will be proved in solemn form, which involved a citation to all persons interested in the estate, so as to bind them by the decree rendered. Schouler, Ex'rs & Adm'rs, § 65 et seq.; Woerner, Adm'n, § 215 et seq. These common-law methods and distinctions are obsolete, as our statutes have established an entirely new system of probating and contesting wills of both real and personal property. A will, whether of real or personal property, must now be proved in the probate court, before any legal rights can be asserted under it; and it may be contested in that court before it has been admitted to probate. Code, §§ 1976, 1989. When it has once been probated in that court in the mode prescribed by the statute, it cannot be contested except by bill in chancery by a person interested therein who has not already contested it. Code, § 2000. It has been said that the provision for contest by bill in chancery stands in the place of, and is the substitute for, the proof in solemn form, as practiced in the ecclesiastical courts, when the will was of personal property; and of the action of ejectment at common law, when the will was of real estate. Lyons v. Campbell, 88 Ala. 462, 7 South. Rep. 250; Kumpe v. Coons, 63 Ala. 448; Johnson v. Glasscock, 2 Ala. 218.

It is not to be understood from this statement that the contest by bill in chancery is merely the old proof in solemn form in a new dress, or that the admission of the will to probate in the mode prescribed by the statute amounts only to the old proof in common form. The attempt to trace resemblances between the methods of proving and contesting wills under the statute and under the system which it supersedes, suggests certain analogies, which are apt to mislead, as the proceedings under the two systems are widely dissimilar in important particulars. The statute does not contemplate any such ex parte proceeding as the old proof in common form. Notice to the widow and next of kin of the decedent and an opportunity for them to contest, are required whenever a will is offered for probate. Code, §§ 1987-1989. These requirements give an original probate under the statute features similar to those of the old proof in solemn form. But the effect of the probate is not the same. A proceeding for the probate of a will, whether at common law or under the statute, is in the nature of a proceeding in rem, so that a judgment admitting the instrument to probate as the last will and testament of the decedent, until it is avoided in some mode prescribed by law, establishes, as against the whole world, the instrument as the law of descent and distributions governing the particular estate, unless it contravenes some rule of law or of public policy; and the judgment giving this operation to the instrument cannot be collaterally impeached for irregularities which may have intervened in the proceedings after the jurisdiction of the court attached. Deslonde v. Darrington, 29 Ala. 92; Hall v. Hall, 47 Ala. 290; Brock v. Frank, 51 Ala. 85; Jordan v. Thompson, 67 Ala. 469. When the will is admitted to probate without notice to a party who is entitled to notice, the failure to give such notice is a mere irregularity, which will authorize the setting aside of the probate on proper application. Sowell v. Sowell, 40 Ala. 243. The proof in solemn form was conclusive as a judgment inter partes upon all persons interested in the estate who were summoned to see the proceedings. Modern Prob. Wills, 391. The same conclusive effect upon the widow or next of kin is not, as a result of the service of the statutory notice upon them, given to the judgment admitting the instrument to probate. It has long been settled that the proceeding under the statute for the probate of a will does not assume the form of, and is not, a suit inter partes...