42 Ala. 39 | Ala. | 1868
This proceeding was initiated by a petition to set aside sales of real and personal property of a testate decedent, and the order under which the same were made, and also the order confirming such sales.
1. The correctness of the action of the probate court is maintained upon several grounds. The first is, that the petition itself fails to show that the petitioner is interested in the object of %the petition. The initial sentence of the petition is as follows : “The petition of the Alabama Conference of the Methodist Episcopal Church South, a corporation under the laws of Alabama, respectfully represents,” &e. The allegation of interest is as follows : “Under said will the Alabama Methodist Conference South, meaning and intending thereby your petitioner, the Annual Alabama Conference of the Methodist Church South, is a devisee and legatee of said testator,” &c. Erom these quotations it is perceived that in one part of the petition, the petitioner is called the “Alabama Conference of the Methodist Episcopal Church South,” and in another part, the “Annual Alabama Conference of the Methodist Episcopal Church South.” The petitioner is elsewhere throughout the record, even in the defendant’s demurrer and plea, correctly denominated the “Annual Alabama Conference of the Methodist Episcopal Church South.” We can only get to the conclusion, that the petitioner is not alleged to have an interest in the proceeding by regarding the Alabama Conference of the Methodist Episcopal Church South, as the plaintiff. It is very evident that such designation of the plaintiff at one place in the petition was a clerical error, which was not noticed in the court below, and could have been easily corrected, if it had been observed. Our attention is invited to the fourth assignment of demurrer, as presenting this point of objection to the probate court. The demurrer was overruled. Admitting that the court erred in overruling it, the decree of the court on the merits in favor of the defendant, cannot therefore be affirmed. It would not present the case of a decree right for a different reason from the one stated. Upon sustaining the objection the court would not have rendered a final decree, much less a decree conclusive on the merits, but would have permitted an amendment. The defendant cannot have his decree on the merits sustained
2. The second ground upon which the appellee maintains his right to an affirmance, is that there is an entire omission of evidence of the corporate capacity of the petioner, and of its competency to take the legacy bequeathed. It must be conceded, that the charter is a private act, of which judicial notice cannot be taken, however familiar with it we may be. — Acts ’51-2, p. 289; Drake v. Flewellen, 33 Ala. 106 ; Revised Code, § 2698. It may also be conceded, that the petitioner had no right to a decree without proof of its corporate capacity, if the issues required such proof. The corporate capacity was proved by the parol evidence of John J. Cassady, and this secondary proof was probably sufficient, when received without objection. — Pearson v. Larrington, 32 Ala. 266. The defendant pleaded sis several pleas, and went to trial upon those pleas. Neither one of those pleas controverted the fact alleged in the petition, that the petitioner was incorporated by the laws of Alabama. Nor was this question of the capacity of the petitioner to take the legacy questioned by either of the pleas. The fourth plea says that the petitioner was not a legal legatee under and by virtue of the will. Aside from the fatal objection to this plea, on account of its mere assertion of a legal conclusion, it refers the absence of a capacity as a legal legatee to the will, and not to the want of an
3. We now proceed to consider the question of the validity of the orders of sale, and the sales made after such orders. The orders of sale apply both to real estate and personal property. For the obtainment of greater perspicuity we subdivide the question and examine it first in its relation to realty.
Beversed and remanded.