Montgomery v. Foster

• Decision Date: 17 November 1890
• Citation: Montgomery v. Foster, 91 Ala. 613, 8 So. 349 (Ala. 1890)
• Parties: MONTGOMERY v. FOSTER.
• Court: Alabama Supreme Court

8 So. 349

91 Ala. 613

MONTGOMERY v. FOSTER.

Supreme Court of Alabama

November 17, 1890

Appeal from probate court, Calhoun county; E. F. CROOK, Judge.

G C. Ellis, for appellant.

McCLELLAN J.

This appeal is prosecuted from a judgment of the probate court sustaining demurrers to an application filed by the appellant to contest the will of Charner Foster, deceased, which had been propounded for probate in said court. The application as finally amended, passed on, and dismissed, with costs disclosed the fact that the only interest the contestant had in the premises was as a creditor of the testator. This interest, of course, was not and could not be affected in any degree by any testamentary disposition of the property. The rights of the petitioner were precisely the same against the estate of decedent, whether the will was probated or not. In either event, the property attempted to be devised would have been liable to the claim he held against Charner Foster, in like manner, and to the same extent. He had no interest to be jeopardized by establishing the will, and none that would have been conserved by defeating its probate. He was therefore, not a "person interested therein," or one "who, if the testator had died intestate, would have been an heir or distributee of his estate." Code, § 1989.

The demurrer was properly sustained to the...