Pitts v. Darby

• Citation: 62 So. 523,182 Ala. 370
• Parties: PITTS et al. v. DARBY et al.
• Decision Date: 05 June 1913
• Court: Alabama Supreme Court

62 So. 523

182 Ala. 370

PITTS et al. v. DARBY et al.

Supreme Court of Alabama

June 5, 1913

Appeal from Chancery Court, Lowndes County; L.D. Gardner, Chancellor.

Bill by P.H. Pitts, as administrator with the will annexed, against Jennie E. Darby and others, to determine whether or not the administrator can sell certain lands under the power contained in the will without an order of court, and, if not, to direct a sale of the land for distribution. Decree for respondents and complainants appeal. Affirmed.

The will is that of Alex. F. Brevard, a resident of North Carolina, who devised certain lands to certain heirs who are made parties complainant with the administrator; said lands lying and being situate in Alabama. The will was executed in North Carolina and appears to have no subscribing witnesses; but proof is offered by witnesses who qualified to so testify that the signature is in the handwriting of Alex. F. Brevard. This appears from the certificate of the clerk of the superior court of Lincoln county, N.C., where the will seems to have been admitted to probate. The demurrers raise the proposition cited.

Arthur M. Pitts, of Selma, for appellants.

Partridge & Hobbs, of Selma, for appellees.

McCLELLAN, J.

Since the instrument purporting to be a testamentary disposition of lands in this state owned by Alex. F. Brevard, a resident of North Carolina, was not attested by two witnesses, as required by Code, § 6172, to pass the title to real estate--a fact appearing upon the face of the record authenticated by the superior court of North Carolina, in which the instrument was probated, to the probate court of Lowndes county, Ala., in which the lands lie--the authority of Blacksher Co. v. Northrup, 57 So. 743, 42 L.R.A. (N.S.) 454, requires the affirmance of the decree sustaining the demurrer to the bill, with the result that the lands in this state descend under our statutes of descent and distribution, not affected by the testamentary instrument referred to before.

Affirmed.

DOWDELL, C.J., and SAYRE and SOMERVILLE, JJ., concur.