67 So. 1003 | Ala. | 1915
This proceeding is by a bill in chancery under section 6207 of the Code, and joins as
The prayer of the bill is for the removal of the administration of the estate into the chancery court; that the administrator de bonis non be required to file an inventory, and collect assets for distribution; that the will be canceled and set aside, and assets distributed, and for general relief.
The chancellor sustained a demurrer to the bill on the ground of a misjoinder of parties complainant, and the.only meritorious question presented by the appeal is whether or not a legatee under a will is, by virtue of that fact alone, he having no interest in the estate of the decedent, entitled to contest the will. If not, then there is a misjoinder of parties, and the demurrer was properly sustained.
Referring to section 55 of the act of 1806 (Clay’s Digest, § 15, p. 598), which is the original of section 6207 now in force, and which authorizes “any person interested in such will,” to contest in chancery, the court said: “The statute also provides a new mode, by which the heir at law or the next of kin can contest the will.”—Johnston v. Glasscock, 2 Ala. 218.
Again, construing section. 1989, Code of 1876 (now section 6196, Code 1907) , the court denied the petitioner’s right, as a creditor of the decedent’s estate, to contest his will, and said: “This interest, of course, was not, and could not be, affected in-any degree by any testamentary disposition of the property. * * * He had no interest to be jeopardized by establishing the will, and none that would have been conserved by defeating its probate. He was therefore not a 'person interested therein/ or one who, if the testator had died intestate, would have been an heir or distributee of his estate.’ ”—Montgomery v. Foster, 91 Ala. 613, 8 South. 349.
In a later case, where the contesting petitioner was only a creditor of the decedent’s husband, it was correctly ruled, upon the most convincing reasoning, that he was not “interested” in the will, and not entitled to contest it.—Lockard v. Stephenson, 120 Ala. 641, 24 South. 996, 74 Am. St. Rep. 63. But the learned writer of the opinion, discussing who might contest the will, though not named therein, said arguendo : “These persons are those 'who, if the testator had died intestate, would have been an heir or distributee of his estate,' clearly demonstrating that the Legislature construed the words interested therein’ as referring to- and includ
This language was criticized as unnecessary, and was in effect repudiated in the recent case of Elmore v. Stevens, 174 Ala. 228, 57 South. 457, where it was held that the vendee of an heir at law was “interested” in the will in the statutory sense. Prior to the Elmore Ease it had been held that the heir of an heir at law was “interested,” and the court said: “In this case the widow, being the sole heir, owns the identical property which her husband held, which was an interest in the property left by his mother, and the right of contest is based on that interest” (Italics supplied.)—Rainey v. Ridgeway, 148 Ala. 524, 41 South. 632.
See, also, Hays v. Bowdoin, 159 Ala. 600, 604, 49 South. 122.
It is clear, we think, that the phrases “any person interested therein,” in section 6196, and “any person interested in any will,” in section 6207, do not mean simply any person who is named as a beneficiary in the will, but rather any person who has a direct interest in the estate disposed of by the will; in other words, the “interest” intended is not literally an interest in the will itself, but m its operation.
The theory of the complainants is that every legatee or devisee under a will is ipso facto “interested therein” in such sense as to be entitled to contest it. Of the unsoundness of this contention we have not the slightest doubt. The true principle was clearly and vigorously stated in Montgomery v. Foster, 91 Ala. 613, 8 South. 349, as quoted above. A contestant of a will must have some direct legal or equitable interest in the decedent’s estate, in privity with him, whether as heir, purchaser, or beneficiary under another will, which
It may be noted here that the Supreme Court of Mississippi has held that if a contestant, who is an heir as well as legatee under the will takes more under the will than without "it, he has no interest entitling him to contest its validity.—Biles v. Dean (Miss.) 14 South. 536.
Our conclusion is that Ethel, Elizabeth, George, and Mary Forbes, not having any interest in the testator’s estate other than as legatees under the will, have no right to contest it, and are improperly joined as complainants in this case, in so far as the bill contests the validity of the will.
The dictum quoted from the case of Lockard v. Stephenson, supra, and set out in the first headnote of the report of that case, is not in accord with the law, and is disapproved and overruled. It results that the decree of the chancellor must be affirmed.
Affirmed.