| Ala. | Jun 15, 1855
It is settled in this State, that when a will has been admitted to probate, without notice to those who are entitled to it, the Probate Court is authorized to set aside the probate, on their petition. — Roy v. Segrist, 19 Ala. 810" court="Ala." date_filed="1851-06-15" href="https://app.midpage.ai/document/roy-v-segrist-6504647?utm_source=webapp" opinion_id="6504647">19 Ala. 810, and cases therein cited.
If, on such petition, the Probate Court not only sets aside the probate, which had been allowed without notice to those entitled to it, but holds “ the pretended will to be null and void”, and grants letters of administration on the estate of the decedent; and an appeal is taken from this decree to the Supreme Court, by the man to whom ail the property of the decedent was given by the provisions of the will; and on such appeal the decree is affirmed, — he is thereby barred from prosecuting a petition afterwards filed in the Probate Court,
The petition of the appellee is not an application for the Removal of the administrator, under sections 1896,1691,1698 and 1699 of the Code. It does not state any of the causes for his removal specified in any of those sections. It prays that the letters of administration be set aside. This prayer could be granted, if the will were “ again admitted to probate”, but not on any other ground shown in the petition. And as the petitioner has no right to have the will again admitted to probate, if the first plea of the appellant is true and remains unanswered, he has not disclosed any right to have the letters of administration set aside.
The matter set forth in the first plea constitutes (prima facie, at least) a bar to the right asserted in the petition of the appellee. The court below erred in sustaining the demurrer to that plea. And as this may be decisive of the case, we reverse the decree for that error, and remand the cause, without deciding the other questions not embraced by what we have above declared.