McCann v. Ellis

• Citation: 172 Ala. 60,55 So. 303
• Parties: MCCANN v. ELLIS ET AL.
• Decision Date: 10 January 1911
• Court: Supreme Court of Alabama

55 So. 303

172 Ala. 60

MCCANN v. ELLIS ET AL.

Supreme Court of Alabama

January 10, 1911

Rehearing Denied April 27, 1911.

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Action by Gretchel McCann against Bessie Ellis and others. From a judgment for defendants, plaintiff appeals. Reversed and rendered.

The following is the agreed statement of facts:

"Both the plaintiff and defendants claim through the same common source of title, viz., Martha Laws, now deceased; the said plaintiff claiming as an heir at law of the said Martha Laws, deceased, and asserting that said Martha Laws died intestate, and the said defendants Bessie Ellis and Joseph Ellis, Jr., claiming under a certain instrument purporting to be the deed of William Laws to them, the said William Laws claiming under a certain instrument, more particularly hereinafter described, purporting to be the last will and testament of said Martha Laws, deceased, and the said Joseph W. Ellis and Adella Ellis claiming possession under the title of their said children, Bessie and Joseph Ellis. On March 19, 1903, Martha Laws, being at that time a resident of Jefferson county, Ala., died without issue leaving her surviving her husband, William Laws, and the following heirs at law, viz.: A sister, Gretchel McCann who is the plaintiff in this suit; a sister, Susan Brennen and Florence Crawson, who is the only child and heir at law of Rhoda Crawson, which said Rhoda Crawson was a sister of said Martha Laws, and died intestate before the death of the said Martha Laws. At the time of the death of the said Martha Laws said Susan Brennen and said Gretchel McCann were each over 21 years of age, and said Florence Crawson was under 21 years of age. Said Martha Laws, at the time of her death, was seised and possessed of all of the real estate which is described in the complaint filed in this cause.

"On the 6th day of May, 1903, a certain paper writing, purporting to be the last will and testament of the said Martha Laws, was probated in the probate court of Jefferson county, Ala., as and for the last will and testament of the said Martha Laws. The said instrument so probated purported to devise to the said William Laws, husband of the said Martha Laws, all of the real property left by the said Martha Laws at her death, including the property described in the complaint. No contest of the alleged will of the said Martha Laws was filed when the said alleged will was filed for probate in the probate court of Jefferson county, Ala.; nor was any contest of said alleged will begun within 18 months thereafter; nor was any contest ever at any time instituted by either the plaintiff herein or the said Susan Brennen. On the 8th day of June, 1904, the said William Laws executed a deed to Bessie Ellis and Joseph Ellis, Jr., two of the defendants in this suit, who were then 8 years and 6 years of age, respectively, purporting to convey to them all of the real property owned by the said Martha Laws at the time of her death, reserving, however, to the said William Laws the use and control of said real estate during his life. The said William Laws, on the 19th day of May, 1905, died. The said Joseph Ellis, Jr., Bessie Ellis, Joseph W. Ellis, and Adella Ellis, the defendants in this suit, took possession of said lands immediately upon the death of said William Laws, and have continuously since said time been, and are now, in the exclusive possession of said lands; the said Bessie Ellis and Joseph Ellis, Jr., claiming title in and to said lands by said deed from said William Laws, the devisee in said paper writing purporting to be the last will and testament of said Martha Laws, deceased, and the said Joseph W. Ellis and Adella Ellis claiming the right to the possession of said land under and by virtue of the said claim of title in said Bessie Ellis and Joseph Ellis, Jr., their minor children.

"On July 12, 1905, Florence Crawson, then being still under 21 years of age, by her next friend, Michael McCann, filed her bill of complaint in the chancery court of Jefferson county, Ala., contesting on various grounds the validity of the instrument hereinbefore mentioned, which was probated as the last will and testament of Martha Laws, and seeking to have the probate of said paper writing vacated and set aside, and also to have canceled and annulled as a cloud on complainant's title to an undivided one-third interest in said lands the said deed from William Laws to Joseph Ellis, Jr., and Bessie Ellis, and such proceedings were thereupon had that afterwards, to wit, on the 11th day of August, 1909, the decree was rendered in said suit, a copy of which said decree is hereto attached and marked 'Exhibit A,' and a copy of the instrument attached to the bill of complaint in said suit and marked 'Exhibit B' thereto, and which is referred to in said decree, and which is a copy of the said deed executed by William Laws to Joseph Ellis, Jr., and Bessie Ellis, and purporting to convey to the said Ellises certain real estate, including the property described in the complaint in this cause, is also hereto attached and marked 'Exhibit B' and made a part hereof. The rental value of said lands described in the complaint is, and has been since the death of said William Laws on May 19, 1905, $5.50 per month."

The decree sufficiently appears from the opinion.

Nathan L. Miller and N. A. Graham, Jr., for appellant.

Tillman, Bradley & Morrow, for appellees.

MAYFIELD J.

This is a statutory action in the nature of ejectment, by appellant against appellees. The trial was had by consent without a jury. It was tried by the judge on an agreed statement of the facts, and judgment rendered thereon by the trial court for the defendants, from which judgment this appeal is prosecuted. The reporter will set out in full the agreed statement of facts.

One question of law only is involved on this appeal, and upon it solely depend the rights of the litigants as to the subject-matter of the suit. That question is: What is the legal effect of a judgment or decree had under section 6207 et seq. of the Code of 1907 , which sets aside and annuls the former probate of the will and declares it not the will of the decedent, and then proceeds to declare and determine the rights of the heirs or devisees to the estate of the decedent; proceedings being had at the suit of only one of the heirs or proposed devisees?

That part of the decree material to this question is as follows:

"Third. That the said paper writing purporting to be the last will and testament of Martha A. Laws, deceased, was never executed by her, as required by the laws of this state, and therefore did not operate as her last will and testament.

"Fourth. That, therefore, the said complainant is entitled to have the probate of said paper writing as the last will and testament of the said Martha A. Laws, deceased, vacated and set aside, so far as the same affects her undivided one-third interest in said lands, so owned by the said Martha A. Laws at her death,

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