Stephens v. Richardson

• Decision Date: 07 November 1914
• Docket Number: 83
• Citation: 189 Ala. 360,66 So. 497
• Parties: STEPHENS v. RICHARDSON.
• Court: Alabama Supreme Court

66 So. 497

189 Ala. 360

STEPHENS v. RICHARDSON.

No. 83

Supreme Court of Alabama

November 7, 1914

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Petition by Tommie Richardson, by next friend, against Rosa Toliver Stephens, to contest a will on the ground that it was not genuine, and was never executed by deceased, and that the said probating of said will be vacated and held for naught and that the said paper be rejected and held not to be the will and testament of Hannah Chambliss. Decree for complainant, and respondent appeals. Reversed and remanded.

J Winter Thorington and C.P. McIntyre, both of Montgomery, for appellant.

Tilley & Elmore and H.B. Fuller, all of Montgomery, for appellee.

McCLELLAN J.

This is an appeal from a decree of the city court of Montgomery sitting in equity, adjudging, on contest, the invalidity of the instrument purporting to be the last will and testament of Hannah Chambliss, deceased, an instrument theretofore proved in the probate court of Montgomery county. Provision for contests in equity is made by Code, § 6207. The appellee was the contestant in the court of equity.

Preliminary to the introducing of evidence bearing upon the issues touching the validity of the instrument, the plaintiff proponent as it were, offered to show the absence of such interest in the appellee as would allow him to contest the validity of the paper so proven in the court of probate. Upon full statement and showing of the items and effect of this proffered matter, the court declined to permit its admission for the jury's consideration.

On appeal from a ruling on demurrer to an application to contest the instrument in question in the probate court, this court, after full consideration, in Elmore v. Stevens, 174 Ala. 228, 57 So. 457, held that any one who had an interest to be conserved by defeating a paper's probate as a will or an interest to be jeopardized by its establishment was of those interested in the will (Code, § 6196), and hence could contest its probate. A like effect must now be accorded Code, § 6207, in this respect. So, the inquiry in this connection is, did the appellee have such an interest as that so recently defined?

The contestant (appellee) is the sole surviving heir at law of Hannah Chambliss, so in virtue of being the child of Edith Toliver Richardson, who, upon the death of Hannah Chambliss in 1887 or 1888, was herself the sole surviving heir at law of Hannah Chambliss, being Hannah's granddaughter. Edith died in 1905. Theretofore, after the death of Hannah, Edith had conveyed, with covenants of warranty, all the land described in the paper in question, which paper undertook to only devise certain land to stepchildren of Hannah, to the exclusion of Edith, with the exception of some general directions therein expressed for Edith's habitation thereon in the event of Edith's illness. It is insisted that these conveyances by Edith divested her of any such interest as would or could afford right in her sole heir to contest the alleged will of Hannah; that there was no subject of descent or inheritable right residing in Edith at her death that could or did pass to the appellee, her sole heir at law. Under the stated definition of interest necessary to qualify a person to contest an alleged will, the right of this appellee to contest in this instance is established. The appellee's right to institute this contest is found in the condition annexed to the deed, executed by Edith to B. L. Holt. The deed conveyed a right of way for the construction of a railway, and bears provision for reverter of the land or right conveyed to the grantor, her heirs or assigns, in the event the railway was not constructed or was abandoned. Manifestly, if the alleged will is pronounced invalid, the appellee, as heir of the grantor, Edith, has, under the condition stipulated in the deed, an immediate interest, in the land, that will be conserved by defeating the probate of the alleged will. The court below did not err in refusing to admit in evidence, even on the preliminary issue stated, the matter before described. The matter recited and shown in the proffered matter disclosed, unmistakeably, the right of the appellee to contest the instrument.

Whether error affeapplication to contest the instrument in question in the probate court, this court, after full consideration, in Elmore v. Stevens, 174 Ala. 228, 57 So. 457, held that any one who had an interest to be conserved by defeating a paper's probate as a will or an interest to be jeopardized by its establishment was of those interested in the will (Code, § 6196), and hence could contest its probate. A like effect must now be accorded Code, § 6207, in this respect. So, the inquiry in this connection is, did the appellee have such an interest as that so recently defined?

The contestant (appellee) is the sole surviving heir at law of Hannah Chambliss, so in virtue of being the child of Edith Toliver Richardson, who, upon the death of Hannah Chambliss in 1887 or 1888, was herself the sole surviving heir at law of ...