Lyons v. Campbell

• Decision Date: 31 January 1890
• Citation: 88 Ala. 462,7 So. 250
• Parties: LYONS ET AL. v. CAMPBELL ET AL.
• Court: Alabama Supreme Court

7 So. 250

88 Ala. 462

LYONS ET AL. v. CAMPBELL ET AL.

Supreme Court of Alabama

January 31, 1890

Appeal from chancery court, Madison county.

This was a bill filed by the appellants against the appellees to contest the last will and testament of one Mary P. Rice. The defendants demurred to the bill, original and as amended, on the ground that the complainants sought by said bill to annul certain items of said will, while others should remain as made by the testator; and on the further ground that the complainants did not allege in said bill facts which went to show that there was any undue influence used upon the testator, but only alleged conclusions. The chancellor, upon the submission to him for decree on the demurrers, sustained them, and it is from this decree that the present appeal is prosecuted, and the same is here assigned as error.

E W. Godbey, F. P. Ward and D. D. Shelby, for appellants.

Lawrence Cooper, W. L. Clay, and L. W Day, for respondents.

CLOPTON J.

The statute which prevailed in this state prior to the adoption of the Code of 1852 provided: "Within five years from the time of the first probate of any will, any person interested in such will may, by bill in chancery, contest the validity of the same; and the court of chancery may thereupon direct an issue or issues in fact to be tried by a jury as in other cases, and in all such trials the certificate of the oath of the witnesses, at the time of taking the original probate, shall be admitted as evidence to the jury, to have such weight as they may think it deserves." Clay, Dig. p. 598, § 15. In Johnston v. Glasscock, 2 Ala. 218, this statute was construed, and it was held that it provided a new mode, by which the heir at law or the next of kin can contest the will in such manner that one suit will be conclusive and final; and for this purpose the court of chancery was invested with the jurisdiction, authorized to call in aid the assistance of a jury, as in other cases; which suit in chancery was given in place of the proof in solemn form when the will was of personal property, as practiced by the ecclesiastical courts, and of the action of ejectment in a court of common law, when the will was of real estate. The person claiming under the will stood in the situation of an actor, and was bound to support the will affirmatively. It was said: "It is true that, under the statute we are considering, the heir at law or next of kin is necessarily the complainant; but his condition is such that, after establishing his heirship or kinship, he occupies precisely the same position as the heir at law, when he is the plaintiff in an ejectment, or the next of kin, when he seeks to call in the probate, in common form, of a will. Such being the condition of a complainant under the statute, nothing is necessary in his bill, more than to allege the title, by which he has the right to investigate the probate, and a prayer for relief." This construction of the statute was reaffirmed in Johnston v. Hainesworth, 6 Ala. 443.

The present statute provides: "Any person interested in any will, who has not contested the same under the provisions of this article, may, at any time within five years after the admission of such will to probate in this state, contest the validity of the same by bill in chancery, in the district in which such will was probated or in the district in which a material defendant resides." The chancery court is authorized in such case to direct an issue to be tried by a jury, and on the trial by the jury, or the hearing before the chancellor, the testimony of the witnesses reduced to writing by the judge of probate, when the will is first admitted to probate, is evidence to be considered by the chancellor or jury. Code 1886, §§2000,2001, 1982. These sections were first incorporated in the Code of 1852, at which time the statutes, now constituting sections 1989 to 1999 of the Code of 1886, were adopted, providing for the contest of any will propounded for probate in the probate court, and regulating the proceedings on such contest. Section 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 in the court where it is offered for probate allegations in writing that the will was not duly executed, or of the unsoundness of mind of the testator, or of any other valid objections thereto; and thereupon an issue must be made up, under the direction of the court, between the person making the application as plaintiff, and the person contesting the validity of the will as defendant; and such issues must, on application of either party, be tried by a jury."

By the statute under which Johnston v. Glasscock was decided, the clerk was required, on application for the probate of any will, or for letters of administration, to issue citation, requiring the sheriff to summon the widow or next of kin of the deceased to appear at some return-day in the process named, and show if they have anything to allege against such application; but no detailed proceedings for the contest of a will were provided. The application was the same, whether to probate a will or for letters of administration. And though it is said in Kumpe v. Coons, 63 Ala. 448, in which the will was made after section 1989 was first enacted, that the character of the suit is not changed, if there is no contest in the probate court, and the heirs at law or next of kin resort to the statutory remedy, which is the substitute for proof of the will in solemn form, or for the action of ejectment, if the will is of real estate, we do not understand by this it was intended to assert that it was not necessary that any valid objection should be stated in the bill; and, if it was intended in Johnston v. Glasscock that all that was necessary was to allege the heirship or next of kinship, the rule therein declared must be regarded as is modified by the present statute. A material and controlling change has been made. A decree in the probate court, establishing a will on contestation, is final and conclusive, as against all persons who joined therein. Those only who do not contest in that court can resort to chancery. To contest in the probate court it is necessary to state some valid objection to the will; the same rule applies when the will is contested in chancery. The heir of distributee must not only allege his title, but also some valid ground of objection. It may be, however, in the same general terms as when the contest is inaugurated in the probate court; otherwise he will be permitted to take an advantage by declining the contest in the probate court, and invoking the chancery jurisdiction. This requirement sound equity pleading demands.

But we cannot assent to the proposition, contended for by counsel that a bill is without equity which seeks to have a certain legacy declared invalid, because procured by fraud and undue influence, at the same time...