Watson v. Turner

• Decision Date: 26 May 1890
• Citation: 89 Ala. 220,8 So. 20
• Parties: WATSON v. TURNER ET AL.
• Court: Alabama Supreme Court

8 So. 20

89 Ala. 220

WATSON v. TURNER ET AL.

Supreme Court of Alabama

May 26, 1890

Appeal from chancery court, Talladega county; S. K. MCSPADDEN Judge.

Cecil Browne, for appellant.

Knox & Bowie, for appellee.

SOMERVILLE J.

The will of Joesph McReynolds, who died in September, 1864, was probated in the probate court of Talladega county on January 6, 1865. An instrument purporting to be a codicil of the same will was recently presented to the same court to be proved and this paper was also probated in due form on December 6, 1886, more than 20 years, it will be observed, after the probate of the will itself. Some of the interested parties contested the proceeding, but the appellant was not one of these contestants. The present bill is filed by the appellant for the purpose of contesting the validity of this codicil, which, in some of its provisions, makes dispositions of the testator's property essentially different from those made in the will as originally admitted to probate. The jurisdiction invoked is claimed under the following statute: "Any person interested in any will, who has not contested the same under the provisions of this article, [Code 1886, § 1989 et seq.,] may, at any time within five years after the admission of such will to probate in this state, contest the validity of the same by bill in chancery in the district in which such will was probated, or in the district in which a material defendant resides." Code 1886, § 2000. It is further declared (section 2002) that "after the expiration of such five years the validity of the will can only be contested by infants and persons of unsound mind, who are allowed five years from the termination of their respective disabilities; but in no case to exceed twenty years from the probate." This statute has existed in this state since the year 1806, having undergone a change in phraseology, but not in meaning, in passing through our various Codes enacted since that time. Aiken's Dig. 450. Its effect was to confer on courts of equity a jurisdiction which they never before possessed,-the power to set aside a probated will for fraud, forgery, or other ground affecting the validity of the paper. Another purpose was to shorten the time within which a judgment establishing a will could be disturbed, or the validity of the will, as such, assailed; or, as said in Johnston v. Glasscock, 2 Ala. 218, 235, where the statute of 1806 was construed, "to provide a period of limitation much shorter than before was known after which the will admitted to probate ceases to be the subject of controversy, and becomes entirely conclusive on parties interested." Prior to this statute there can be no doubt of the fact that the inherent jurisdiction of probate courts in this country, as of ecclesiastical courts formerly in England, embraced the power to set aside the probate of a will at any time upon the discovery of a posterior will of the testator, and upon proper proof of its execution by the testator. Gaines v. Hennen, 24 How. 553. The rule is commonly asserted to be that the probate of a will either in common or solemn form may be revoked on evidence of fraud in the proof or of a later will. 1 Williams, Ex'rs, 399, 508. Codicils which may have been overlooked are placed upon the same footing as later wills.

A leading case on this subject is Waters v. Stickney, 12 Allen, 1, where many authorities, American and English are ably reviewed by Mr. Justice GRAY. After announcing the general rule that the decrees of probate courts as to matters of probate, and within the authority conferred on them by law, are conclusive in courts of common law, and cannot be set aside by courts of equity, he asserts that such decrees may be revoked for fraud, mistake, or other good cause by the court which granted them. "In the face of the authorities," he says, "it is impossible to deny the power of a court of probate to approve a subsequent will or codicil after admitting to probate an earlier will by a decree the time of appealing from which is past, or to correct errors arising out of fraud or mistake in its own decrees." The decree of the probate court, which had admitted the codicil of a will to probate 14 years after a former decree probating the will itself, was affirmed as free from error. Cases are reported where later wills and codicils have been admitted to probate more than 20, and even as late as 30, years after the death of the testator. Shumway v. Holbrook, 11 Amer. Dec. 153; Rebhan v. Mueller, 2 N.E. Rep. 75, 55 Amer. Rep. 869; Haddock v. Railroad Co., 15 N.E. 495, 4 Amer. St. Rep. 295, note 299. This statute was construed in Hardy v. Hardy, 26 Ala. 524. The decision reached in that case, and the reasoning of the court, establish the...