Wachter v. Davis

• Decision Date: 13 January 1927
• Docket Number: 6 Div. 779
• Citation: 111 So. 917,215 Ala. 659
• Parties: WACHTER v. DAVIS et al.
• Court: Alabama Supreme Court

111 So. 917

215 Ala. 659

WACHTER v. DAVIS et al.

6 Div. 779

Supreme Court of Alabama

January 13, 1927

Rehearing Denied April 14, 1927

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

Bill in equity by Herbert Davis and another, by next friend, Hannah Gillett, against Emma Wachter. From a decree for complainants, respondent appeals. Reversed and rendered.

Theo. J. Lamar, W.A. Weaver, and Hugh A. Locke, all of Birmingham for appellant.

Pinkney Scott, of Bessemer, for appellees.

GARDNER J.

The bill in this case was filed by appellees against appellant for the contest of the will of Charles S. Davis, deceased. Section 10637, Code of 1923. Final decree was rendered in favor of contestants following the verdict of the jury to that effect.

The evidence is presented in this record by bill of exceptions (Ex parte Colvert, 188 Ala. 650, 65 So. 964), and appellees move to dismiss the appeal for want of note of testimony or certificate of the court reporter (sections 6574, 6575). These sections relate to equity suits in which the judge causes the evidence to be taken orally before him in open court. In cases of contest of wills a trial by jury is a matter of right (Ex parte Colvert, supra), and these sections are without application.

We are inclined to the view that under the Colvert Case, supra, and in view of the character of the proceedings, a bill of exceptions properly presents the case. But in no event could this question become the foundation for the dismissal of the appeal, and the motion is denied.

It appears from this record that the bill was filed January 29 1925, and the will was not admitted to probate in the probate court of Jefferson county until March 23, 1925, and the point is taken that the circuit court, in equity, was without jurisdiction. We think the point is well taken. In this state the probate of a will is a matter resting exclusively in the jurisdiction of the probate court. Section 10609, Code of 1923. "Chancery courts have no jurisdiction in this state for the probate or establishment of wills." Kaplan v. Coleman, 180 Ala. 267, 60 So. 885. The right of contest of a will in a court of equity is purely of statutory creation (section 10637, supra), which statute creates a new substantive and independent right, which may be exercised within the time prescribed (Kaplan v. Coleman supra). The foregoing statute expressly provides that such contest is to be instituted "within the twelve months after the admission of such will to probate in this state." (Italics supplied.) The admission of the will to probate in the probate court is therefore a condition precedent to the jurisdiction of the equity court as to such a contest.

By analogy the holding of the court in Kaplan v. Coleman, supra, is, we think, decisive of this question, wherein is the following language here pertinent:

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