Acklen v. Goodman, 77 Ala. 521

Acklen v. Goodman

77 Ala. 521 | Ala. | 1884

STONE, C. J.

The controlling purpose of the present bill is, to set up and establish, as valid, an alleged probate of the will of William Aclde2i, deceased, charged to have been granted June 8, 1872, and to set aside and annul, as improperly granted, a probate of parts of the same will, gi-antedin Deeembei-, 1872. Tlie estate has been administei'ed under the probate ordei'ed and deci-eed in December; and a second purpose of the bill is, to have the estate administered and distributed under the alleged probate of June 8, 1872. In the pi’obate of wills, and in granting letters testamentai’y and of administi'ation, the Probate Court has not only exclusive jui’isdiction, but has all the powe2’s and attributes of a coui’t of general jurisdiction. Eve2’y intendment will be indulged in favor of its rightful exe2’cise of the power, and nothing will be presumed against the regulai’ity or legality of its action, which the record does not affirmatively show to beso. — 2 Brick. Dig. 530, § 83; McGrews v. McGrews, 1 St. & P. 30; Hardy v. Hardy, 26 Ala. 524; Deslonde v. James, 29 Ala. 92; Hall v. Hall, 47 Ala. 290; Goodman v. Winter, 64 Ala. 410; Matthews v. McDade, 72 Ala. 377.

We find no note of testimony in the p2’esent transcript; but the final decree of the chancellor recites, that the “ cause was submitted for decree, on the bill of complaint, answer of defendants, Walter A. Goodman and Corinne A. Goodman, and exhibits, being a transcript from the order of the P2’obate Court of Madison'county, probating the will of William Aciden, deceased, and a copy of said will.” The bill dispensed with sworn answer, and the answe2-s were put in without oath. What is called exhibit “A. A.” to the bill, is in no sense a probate. It is but a copy of the will, with the joint affidavit of Weeden and Binford, desc2’ibing themselves as subscribing witnesses, bearing date June 8, 1872, and testifying to its due execution *523by Acklen, the testator. No order of the court is shown to have been made thereon, nor any action taken upon said affidavits. So, the transcript from the Probate Court has no certificate attached, and we can not know what preceded, or followed it, if any thing. The record is silent on that subject. It bears date December, 1872, relates to the estate of William Acklen, deceased, and recites, “ This day came the parties, by attorneys,” &c. It then proceeds to declare, that certain named parts, or items of said testamentary paper, are proven, established and probated, as the last will and testament of the said William Acklen, and orders that letters testamentary be issued to the executor named.

We infer from some averments in the bill, and-from the argument of counsel, that an effort was made to show there was no notice given of the application to probate the will, and that, on the trial, the infant legatees were not represented by guardian ad litem. It is true that the alleged transcript from the Probate Court, found in this record, fails to show notice, and fails to show there was a guardian ad litem for the infants. It is equally true that it fails to show these preliminary duties were omitted. Under the rule as to intendments declared above, we feel bound to presume on collateral attack, such as this, that every step in the proceedings was regularly taken, which the record does not affirmatively show to have been otherwise. The same rule applies to the alleged absence of a jury, to pronounce on the contest of the will. — Code of 1876, § 2320; Merrill's Heirs v. Morrissett, 76 Ala. 238 ; Jaques v. Horton, 76 Ala. 432.

The averments of the bill, which seek to raise this question, are found in section three. It avers that certain papers and citations are not shown in the Probate Court. This is not the equivalent of an averment that no such papers ever existed. They may have been lost, destroyed, or removed. There is, however, an averment that the minors, residents of the county of Madison, were not made parties to the said proceedings by summons, service, and acceptance and appointment of a guardian ad litem. The answer to this averment is in the following language : “ As to the further allegations of said third paragraph of complainants’ bill, these respondents are not advised, do not know, and can not further answer.” So, the pleadings do not aid the proof, which is otherwise fatally defective.

In what we have said above, we have not inquired whether equity would grant the relief prayed, if the averments and proof were full. We decide nothing on that question. — See Glass v. Glass, 76 Ala. 312. The bill, as framed, is wholly insufficient as a bill simply to bring the administration to a settlement. It does not aver the estate is ready for final settlement.

It is manifest that the chief purpose of this suit rests on the *524postulate, that if Mr. Acklen’s will had been probated in its entirety, Mrs. Goodman and the several children of Theodore Aciden would have taken per capita and equally under its provisions. Without intending to decide this immaterial question, we may be pardoned for expressing grave doubts, if such is its proper interpretation.

The decree of the chancellor is affirmed.