Nelms v. Brooks

• Decision Date: 19 May 1913
• Docket Number: 16,013
• Citation: 61 So. 985,105 Miss. 74
• Court: Mississippi Supreme Court
• Parties: T. H. NELMS v. NORA BROOKS ET AL

61 So. 985

105 Miss. 74

T. H. NELMS v. NORA BROOKS ET AL

No. 16,013

Supreme Court of Mississippi

May 19, 1913

APPEAL from the Chancery Court of Carroll County, HON. J. F. MCCOOL Chancellor.

Bill by Nora Brooks against F. H. Nelms and others. From a decree overruling a demurrer, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

F. M Glass, J. T. Brown and Flowers, Alexander & Whitfield for appellant.

This case is a companion case to the case of F. H. Nelms against Mrs. Nora Brooks, numbered 16014 on the docket of this court and we ask that our brief filed this date in that cause be taken as a brief in this case, since both cases present the precise same question of both law and fact, and the same parties are parties to both cases.

McClurg & Conger, for appellees.

The contention on the part of the appellant is, that this bill of complaint is not maintainable because its primary purpose is for partition and accounting and to reach that end it is not permissible to tender an issue devisavit vel non to test the validity of the will as a cloud upon the title to property sought to be divided and which but for the will is certainly in the appellees. That the latter question is settled by probate judgment until direct action on that proposition alone it be shown that it is not the real will of the alleged testator.

There is at least a practical common sense view that answers this contention by appellants counsel, and the record of this case demonstrates it. After the demurrer to the bill had been overruled the vel non issue was tendered, a jury drawn, and a future day set for the trial and the witnesses summoned. But before the trial day this appeal was prosecuted. Suppose the trial had been had and the will sustained? That of course would have ended the case with the partition as well, properly held in abeyance until the determination of that issue. On the other hand had the verdict and judgment been with the complainants, there would have been nothing to do but divide the property among the heirs to it, with the accounting between them as an incident. This would have saved two law suits and large costs, much long delay, inconvenience and annoyance, the very large number of necessary parties being no small factor influencing such course. And where is the real harm in such proceeding? It is convenient, the most inexpensive and withal the quickest and most practical. Not a single legal right could be lost by it.

The distinguished counsel quote and cite many authorities (and this writer has no convenient opportunity of examining their pertinent application here), sustaining their view as a general proposition. Yet, it seems, the reliance is upon the cold proposition that the probating judgment is conclusive and cannot be assailed, not collaterally exactly, but in a bill for partition generally. So, it must be that unless there is in fact a substantial legal or equitable obstruction, the plain, simple plan proposed by the bill ought to be proceeded with. It is respectfully submitted that even if the decree appealed from is reversed or affirmed this court should remand the case so that all parties in interest may be brought in and the case heard on the contest of the will set up in the bill if it should be decided that the two propositions are improperly submitted in the same bill. The court will hardly dismiss the bill but let the appellants...