Odom v. Odom, 4 Div. 61
| Decision Date | 11 May 1961 |
| Docket Number | 4 Div. 61 |
| Citation | 130 So.2d 10,272 Ala. 164 |
| Parties | William P. ODOM v. Sue Core ODOM. |
| Court | Alabama Supreme Court |
W. G. Hardwick, Dothan, for appellant.
Lee & McInish, Dothan, for appellee.
The question for decision is whether the contest of a will was made within the six months after the admission of a will to probate as provided in § 64, Title 61, Code of 1940.
Dr. William P. Odom filed a contest in the Circuit Court of Houston County, Alabama, in Equity, contesting the purported last will and testament of Dr. J. W. Odom, which was probated on the 25th day of February, 1960, in the Probate Court of Houston County, Alabama.
Sue Core Odom (appellee) demurred to the bill of complaint on the ground that the contest had not been filed within the six months as required by the statute, the contest having been filed on August 26, 1960. The court sustained the demurrer to the bill of complaint and dismissed the bill of complaint. This appeal followed.
Any will contest filed in the circuit court in equity must be filed within the six months after the admission of such will to probate. Section 64, Title 61, Code of 1940; Ex parte Pearson, 241 Ala. 467, 3 So.2d 5. 'Month' within the meaning of the statute means a calendar month. Bartol v. Calvert, 21 Ala. 42; Sovereign Camp, W. O. W. v. Reed, 208 Ala. 457, 94 So. 910; Sims v. Sims, 210 Ala. 465, 98 So. 462; 86 C.J.S. Time § 10, pp. 837-838. A calendar month, according to Webster's New International Dictionary, means "the time from any day of any of the months as adjusted in the calendar to the corresponding day (if any; if not, to the last day) of the next month." Daniel v. Ormand, 26 Ala.App. 441, 442, 163 So. 361 certiorari denied 231 Ala. 10, 163 So. 362.
Furthermore the statute providing for a will contest in an equity court is not one of limitation but creates a new, substantive and independent right which may be exercised within the time prescribed. Smith v. Bryant, 263 Ala. 331, 82 So.2d 411.
The time within which a will contest may be filed in the circuit court, in equity, is computed by excluding the first day and including the last. Section 12, Title 1, Code of 1940.
In the case of Sims v. Sims, 210 Ala. 465, 98 So. 462, this court considered the computation of time with reference to voluntary abandonment as a ground for divorce and affirmed the action of the lower court in overruling the demurrer to the bill of complaint. We quote from that case as follows:
As stated, the will in the present case was probated on February 25, 1960. Applying the statutory method of...
To continue reading
Request your trial
-
Steele v. Sullivan
... ... 61", § 52; Code 1975, § 43-1-70.)\" (Emphasis added.) ... \xC2" ... 61, Code 1940, a predecessor of § 43-8-199, supra); Odom v. Odom, 272 Ala. 164, 130 So.2d 10 (1961); Wachter v ... ...
-
Ex parte Barrows
...or legal holiday, then the period runs until the end of the next day that is not a weekend day or holiday), and Odom v. Odom, 272 Ala. 164, 165, 130 So.2d 10, 10 (1961)(quoting Webster's New International Dictionary for the definition of a calendar month, within the meaning of the statutory......
-
Grice v. Taylor
... ... GRICE et al ... Thomas J. TAYLOR et al ... 1 Div. 25 ... Supreme Court of Alabama ... July 12, 1962 ... See slso Odom v. Odom, 272 Ala. 164, 130 So.2d 10, and cases therein ... ...
-
Shepherd Plumbing & Heating Co. v. Bedford
...lien claim on April 29, 1960, which is within the six months period required by the statute. Section 2, Title 1, Code of 1940; Odom v. Odom, Ala., 130 So.2d 10. We conclude that Hugh Herbertson is entitled to a lien on the property on each of the six lots for the materials furnished and lab......