Lockard v. Stephenson

• Decision Date: 10 January 1899
• Citation: Lockard v. Stephenson, 120 Ala. 641, 24 So. 996 (Ala. 1899)
• Parties: LOCKARD ET AL. v. STEPHENSON.
• Court: Alabama Supreme Court

24 So. 996

120 Ala. 641

LOCKARD ET AL. v. STEPHENSON.

Supreme Court of Alabama

January 10, 1899

Appeal from probate court, Pike county; W. J. Hilliard, Judge.

Will contest by M. J. Lockard and others against Myrtle Stephenson. There was a judgment for proponent, and contestants appeal. Affirmed.

R. L Harmon, for appellants.

Hubbard & Hubbard, for appellee.

TYSON J.

The sole devisee and legatee, Myrtle Stephenson, under the last will and testament of her mother, Mary P. Stephenson propounded said instrument for probate in the probate court of Pike county. Appellants filed a contest, seeking to impeach its validity, alleging as their right to do so, in effect, that they have a lien as judgment creditors of J. T Stephenson, the husband of the testatrix, who is wholly insolvent; that, by reason of said will, their debtor is deprived of his distributive share in the property of his wife; that Mary P. Stephenson died seised and possessed of real and personal property, and, but for said will, their debtor's distributive share in said property would be subject to the payment of their debts; and that, therefore they have such an interest as gives them the right to institute the contest. Demurrers sufficiently raising the question of their right to file and prosecute the contest were sustained by the probate court, and from this decree appellants appealed.

Code 1896, § 4287 (Code 1886, § 1989), provides: "A will, before the probate thereof, may be contested by any person interested therein, or by any person, who, if the testator had died intestate, would have been an heir or distributee of his estate by filing," etc. It is very clear that, unless appellants are within that class of persons included in the words "interested therein," they cannot be heard to complain of the probate of the will. The contention of appellants is that the words "interested therein" refer to the estate of testatrix, and include every person having any interest in the property attempted to be devised by the will or otherwise, and are not restricted to those named in the will. In other words, every person who would have had any interest in the property of Mrs. Stephenson should she have died intestate is included in the words above italicized. If the section of the Code above quoted did not contain any other provision conferring the right of contest upon others, who may not be designated in the will, there might be some merit in the contention. But it will be observed that it expressly names that class of persons, though not named in the will, who may contest it. These persons are those "who, if the testator had died intestate, would have been an heir or distributee of his estate"; clearly demonstrating that the legislature construed the words "interested therein" as referring to and including only such persons as took an interest in the estate of testatrix under and by virtue of the provisions of the will.

But conceding for the sake of the argument that these words are susceptible of the construction contended for by appellants as judgment creditors, with a lien, of the husband of Mrs. Stephenson, have they such an interest as will authorize them to institute and maintain this contest? It is fair to presume, and indeed it appears as to one of the appellants, that, when J. T. Stephenson contracted these debts, the testatrix was in life. The property was hers, and she had the absolute right of disposition over it up to the very moment of her death. There was not the semblance of privity between her and her husband's creditors. She could make such disposition of her entire estate, by deed, gift, or will, as she chose. Her husband had only an expectancy, which might or might not ripen into a vested interest or right, dependent upon his surviving her, and her failure to dispose of her property during her life or by will, to take effect at her death. These expectations, while they may have inspired the hopes of his creditors, were not such an estate or interest as they could subject to the satisfaction of their...