Smith v. Chism
| Decision Date | 31 March 1955 |
| Docket Number | 6 Div. 729 |
| Citation | 79 So.2d 45,262 Ala. 417 |
| Parties | Curtis SMITH v. Willie Hendison CHISM. |
| Court | Alabama Supreme Court |
A. H. Nichols, Ensley, and J. L. Drennen, Birmingham, for appellant.
G. Ernest Jones, Fred Blanton, Beddow & Jones, Birmingham, for appellee.
Sallie W. Davis died in Birmingham on or about December 17, 1953, leaving a will wherein she left all of her property with the exception of a piece of furniture, to her adopted son, Jerre Lawrence Davis, a minor.
In the said will Sallie W. Davis expressed the desire that Curtis Smith be appointed executor without bond and that he also be appointed guardian of Jerre Lawrence Davis during his minority.
On December 28, 1953, a verified petition was filed in the probate court of Jefferson County signed by Willie Hendison Chism, bearing the caption: 'Petition of: Willie Hendison Chism, Route 1, Box 14, Birmingham, Alabama,' and containing the following averments: 'Your petitioner further avers that he is the step-father of Sallie W. Davis, married to the mother of Sallie W. Davis, who is now living and that he together with his wife, are the custodians of said Jerre Lawrence Davis and that he files this petition in order to protect the rights and interests of said Jerre Lawrence Davis, and as the next friend of said Jerre Lawrence Davis.' This petition sought the probation of said will and also sought to have someone other than Curtis Smith appointed executor on the ground that he had interests so adverse to those of the creditors and of Jerre Lawrence Davis as to render him incompetent to serve in that capacity. The instrument propounded for probate was surrendered to the probate court at the time this petition was filed.
Thereafter, on January 31, 1954, Curtis Smith filed his petition seeking to propound the same instrument for probate and he also filed on that date a plea in abatement wherein he challenged the jurisdiction of the probate court of Jefferson County to entertain the petition signed and verified by Chism on the ground that Chism was not such a person as is authorized by § 33, Title 61, Code 1940, to prove the will. Section 33, Title 61, supra, reads: 'Upon the death of a testator, any executor, devisee, or legatee named in the will, or any person interested in the estate, or who has custody of such will may have the will proved before the proper probate court.'
Chism thereupon, with permission of the court, amended the petition filed on December 28, 1953, so as to make the caption read: 'Petition of Jerre Lawrence Davis, an infant under fourteen years of age, acting by and through his custodian and next friend, Willie Hendison Chism, Route 1, Box 14, Birmingham, Alabama.'
On the same day, January 21, 1954, the probate court ordered that the 4th day of February, 1954, be set as the day for hearing the petition filed by Curtis Smith and the hearing on the amended petition signed and verified by Chism.
On the day set, a hearing was held and the probate court took the matter under advisement and rendered a decree on March 4, 1954, overruling the plea in abatement filed by Curtis Smith and in effect ordering that on the petition of Willie Hendison Chism, as next friend of Jerre Lawrence Davis, a minor, the written instrument surrendered to the court by Chism on December 28, 1953, be admitted to probate as the last will and testament of Sallie W. Davis. No express reference is made in the decree to Smith's petition or to the prayer of the so-called Chism petition seeking to have...
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Segrest v. Segrest
...from any final decree of the probate court, or from any final judgment, order or decree of the probate judge....’); Smith v. Chism, 262 Ala. 417, 419, 79 So. 2d 45, 47 (1955) (citing the essentially identical predecessor statute to § 12–22–20 and noting that an order admitting a will to pro......
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Smith v. Rice
...seeking to have someone other than Smith appointer to administer the estate. That decree was the basis of the appeal in Smith v. Chism, 262 Ala. 417, 79 So.2d 45. We are not concerned here with any question about the probate of the On March 4, 1954, Smith filed a petition to have himself ap......
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Harper v. Taylor (Ex parte Taylor)
...from any final decree of the probate court, or from any final judgment, order or decree of the probate judge...."); Smith v. Chism, 262 Ala. 417, 419, 79 So.2d 45, 47 (1955) (citing the essentially identical predecessor statute to § 12–22–20 and noting that an order admitting a will to prob......
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