Murphree v. Griffis

• Decision Date: 14 October 1926
• Docket Number: 7 Div. 651
• Citation: 109 So. 746,215 Ala. 98
• Parties: MURPHREE et al. v. GRIFFIS.
• Court: Alabama Supreme Court

109 So. 746

215 Ala. 98

MURPHREE et al. v. GRIFFIS.

7 Div. 651

Supreme Court of Alabama

October 14, 1926

Appeal from Circuit Court, Calhoun County; R.B. Carr, Judge.

Action in ejectment by J.C. Murphree and others against M. Griffis. From a judgment for defendant, plaintiffs appeal. Affirmed.

Harvey A. Emerson, of Anniston, for appellants.

Knox Acker, Sterne & Liles, of Anniston, for appellee.

MILLER J.

This is an action of ejectment brought by J.G. Murphree and others the heirs at law of D.M. Murphree, deceased, against M Griffis, to recover possession of certain land particularly described in the complaint. The cause was tried, on plea of general issue, by a jury; a verdict was returned in favor of the defendant; and, from a judgment thereon by the court, this appeal is prosecuted by the plaintiffs.

It is admitted that D.M. Murphree is the common source of title of the parties. He died about September 1, 1910, in possession of this land, owning and using it as a homestead, leaving a widow and no children, and the plaintiffs are his heirs at law. He left a last will and testament, dated the 29th of August, 1903, which was duly executed and attested. By this will he devised this land in fee, which was all that he owned, to his wife, Ellen Murphree. She was, the sole devisee of all of his estate. His widow, after his death, married J.A. Bramlett, and they by warranty deed sold and conveyed this land to the defendant in 1912, and a description of the land was corrected by deed from the said vendors to this vendee in 1915. It is admitted that this will and petition for its probate were filed in the probate court of Calhoun county, Ala., in October, 1910, but no decree of the court admitting it to probate on the petition is shown by the minutes of the court; "that on a petition filed in 1925 the will was duly admitted to probate on August 19, 1925," by the probate court of Calhoun county, Ala., and due notice was given the heirs of decedent of the petition to probate this will, which was filed in 1925, and no notice was given the heirs of petition filed in 1910, which attempted to probate this will.

The widow of the decedent died in February, 1922, and this suit was commenced on February 24, 1923. The decedent, at the time of his death, was a resident citizen of Calhoun county, Ala.

The court gave the general affirmative charge with hypothesis, which was in writing, in favor of the defendant; and refused a similar charge in favor of the plaintiffs, which was in writing and requested by them. These are assigned as errors.

This is a contest over the legal title to the homestead of the decedent, between the plaintiffs, claiming it as his heirs at law, and the defendant, a vendee of the widow of the decedent, who was his sole devisee in his will.

Under the facts, which are without dispute, the parties in their briefs practically agree, and correctly so, that the record presents only one question, whether the probate of the will, after the death of the devisee and after she sold the land and after this suit was commenced, relates back to the death of the testator, so as to intercept the descent of this land to the plaintiffs, the heirs of D.M. Murphree, deceased, the testator.

It is true, this court in Desribes v. Wilmer, 69 Ala. 25, 44 Am.Rep. 501, correctly wrote:

"An instrument, testamentary in its character, cannot be recognized as valid in any forum until it has been admitted to probate."

It was quoted with approval in Sheridan v. Schimpf, 120 Ala. 479, 24 So. 940. And again in Inge v. Johnston, 110 Ala. 650, 20 So. 757, this court stated:

"That the will, without proof of its having been probated in the court of probate, vested no title in the plaintiffs to the land sued for,"

--which was approved in Self v. Self, 212 Ala. 512, headnote 12, 103 So. 591. These declarations by this court are not inconsistent with the holdings in the following cases: Whorton v. Moragne, 62 Ala. 201, 207, in which this court said:

"At the common law, the authority and duty of an administrator extended only to personal assets. Lands descended immediately on the death of the ancestor to the heir, who was invested with the title and all its incidents. The title of an executor, if there was no devise of the lands to him, and no power over them conferred by the will of the testator, was also confined to the personal assets. Lands devised passed immediately on the death of the testator to the devisee."

This court again, in Hall's Heirs v. Hall, 47 Ala. 290, 297, wrote:

"On the death of the testator, James M. Hall, the title to said house and lot vested immediately, by virtue of his will, in his widow as devisee; and, on her death, descended to her heirs at law."

This court in Goodman v. Winter, 64 Ala. 429, 38 Am.Rep. 13, wrote:

"That there was a partition in 1842, before probate of the will in this state, is not a disputed fact. The interest of a devisee vests immediately on the death of the testator. No estate can or ought to intervene between that of the testator and the devisee. Some period of time must elapse between the death of the testator and the probate, when probate is essential as evidence of the title of the devisee--of the due execution and validity of the will. Then

...