This is a petition directed to this Court seeking to review a proceeding by the grievance committee of the State Bar before the hoard of commissioners of the State Bar to disbar petitioner from the practice of law in Alabama. The proceeding was begun on June 27, 1950 by filing charges in writing against- petitioner. We shall .hereafter refer to petitioner as defendant.
The proceeding has a legal status and the board of commissioners is vested by, law with the duty to consider the findings ■ or recommendations of the grievance committee and to hear and determine the complaint or charge. The investigation and charges made by the grievance committee are said to be similar to that, of a grand jury. Section 33, Title 46, Code; Lewis v. Gerald,
■Charge No. 1 is based upon an acceptance by defendant of a fee of $1,000, alleged to have been paid him as an attorney on July 26, 1946 by Mrs. Edwards to represent her in breaking or setting aside a will which had been admitted to probate in Mobile County (the' will being that of a deceased uncle Albert Ashenberger), and to conduct an investigation and make report to her in respect to the genuineness of the signature to the will; but that he willfully and deceitfully failed and refused to institute proceedings to break or cancel the same and to conduct and get reports as to the handwriting of testator, and refuses to refund the fee aforesaid. The will is alleged to have been probated March 10, 1937. Mrs. Edwards was the daughter of a sister of testator who was an heir and was living when testator died and when the will was probated.
Charge 2 relates to the same transaction. Charges 3 and 4 are hot insisted on. Charges 5 and 6 relate to a transaction with Leona Williams, which is a matter of minor importance and would not be sufficient to support a conviction and disbarment.
The defendant pleaded the general issue, and the statute of limitations of three years. Section 24, Title 7, Code. That statute provides a limitation of three years for “Proceedings in any court of this state to disbar any attorney, authorized to practice law in this state”.
The commission did not in terms hold that the charges were not barred by limitations, but by a resolution unanimously adopted, found and adjudged him guilty of the charges preferred and by a resolution adopted by eleven for and four against disbarred and excluded him from the practice of law in Alabama.
It is apparent that the board of commissioners as thus set up was acting under the judicial power of the State, as defined in section 139, Constitution. Ex parte Thompson,
The board of commissioners contends that the limitation of section 24, Title 7, is an unconstitutional exercise of the legislative power infringing upon'the judicial power. They cite the case of In re Tracy,
The cases of In re Cooper, supra, and In re Applicants for License to Practice Law, supra, have no reference to disbarment, but approve legislative power to prescribe the minimum requirements for admission. We recognize that theory. The case of In re Evans,
In Ex parte Thompson, supra, we adhered to the principle of the inherent power of the Court, but approved the constitutionality of the legislative proceedings for disbarment by the board of commissioners and its review by this Court. We also held in effect that on such review we are exercising the inherent power of the Court. In the Thompson case, supra, we also referred to the statute of limitations, see
We have never denied the right and power of the legislature to enact laws regulating any proceedings in this Court, even though they relate to matters in which the court is exercising its inherent power, so long as such legislation does not impair unduly an exercise of such powers. Broadway v. State,
We now come to the question of fact in respect to that statute. In response to a letter from defendant, and on July 26, 1946, Mrs. Edwards wrote a letter to defendant in the form of a contract of employment of him by her in the following words:
“San Francisco, Calif.
July 26, 1946.
“M. F. Dozier,
Attorney at Law,
Mobile, Alabama.
“Dear Mr. Dozier:
“I hereby employ you to handle a case for me in the matter of the estate of Albert Ashenberger. It is understood I am to pay you One Thousand ($1,000.00) dollars, and an amount equal to 20% of all monies I recover in this estate in excess *200 of $1,000.00. It being understood and being the meaning of this contract that no deductions are to be made from the amount recovered until I have been reimbursed $1000.00.
“I have heretofore paid you $750.00 of the sum of $1000.00 above mentioned, and I now enclose cashiers check of Crocker First National Bank of San Francisco for $250.00 payable to your order — in settlement of. the balance of $1000.00 due you.
“Ada V. Edwards, Adm.”
This engaged his services for a cash fee of $1,000 then paid, and a contingent fee of twenty percent of recovery to handle a case for her in the matter of said estate. The will had been probated on March 10, 1937, more than eight years previously. Mrs. Edwards was a person not authorized to contest the will after its probate. Allen v. Pugh,
The reprehensible conduct of defendant, if there was any, was in receiving the fee of $1,000 and accepting employment to contest a will by one not authorized to do so, and at a time not allowed by law, and' writing her that it was not too late when he knew it was too late.
It is insisted that defendant may have thought that the period in which a contest in equity could be extended if the contest was- on the ground of fraud in respect to the execution of the will, and would come within the influence of section 42, Title 7 of the Code. The contest in equity is by statute which authorizes it within six months after the admission of the will to probate. The time there expressed is a condition to the right to sue, not a statute of limitations in respect to it. That was expressly so held in Cronheim v. Loveman,
If an attorney accepts a fee from his client and agrees to contest a will in equity, when he knows his client is not a person interested under the statute, section 64, Title 46, Code, and when it cannot be done on account of the expiration of the period prescribed by the statute, all of which is or should have been known to him, he should immediately so advise his client and return the amount of the fee, unless his employment is justified on some other theory.
So that, if there was ground on that account to disbar the attorney, the right then accrued and therefore this proceeding was barred by the statute of limitations.
Counsel for defendant would justify the acceptance of a fee and employment at that late day to seek to prove that the will which was admitted to probate was a forgery, or procured by fraud, or revoked .by a subsequent will, or was probated on perjured testimony.
There is foundation for such a claim as being sufficient to invoke the inherent power of the probate court to revoke the probate of the will and then consider any newly found will or codicil for probate. That principle was declared in our case of Jordan v. Tharp,
In the case of Hardy v. Hardy’s Heirs, supra, an application was made to - the probate court seeking to invoke this inherent power. A later will had been found after the probate of the former. The Court held that the act of 1806, supra supplied the only remedy to meet that situation, and the probate court had no such jurisdiction since the adoption of that act.
*201 The case of Watson v. Turner, supra, referring to the act of 1806, supra, observed : ^
“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.”
The question again came up in Caverno v. Webb,
But we do not so read those cases. The statute providing for contests in equity opens the door on such a contest to any and all grounds of contest as if there had not been a probate of the will. It cuts off the inherent power of the probate court theretofore existing and fully established to revoke the probate decree, probating the will upon a showing of fraud, not in the concoction of the decree, but in the execution of the will or to show that there was a conflicting later will or codicil, and to confer exclusively on a court of equity such power to be exercised only in the time and by the person there stated. Otherwise the judgment probating a will is as conclusive as the judgment in any other court or proceeding. But a judgment probating a will, as any other judgment at law or in equity, was still subject to be set aside for fraud in procuring the judgment sought to be vacated, not now considering a bill of review for newly discovered evidence. Cf. Hogan v. Scott,
We do not wish to imply that a
bill of review
on the ground of newly discovered evidence may not also be maintained subject to the limitation of three years prescribed in Equity Rule 66. Banks v. Long,
Applying that legal status to this defendant, when offered employment by Mrs. Edwards, the inquiry uppermost in his mind evidenced by his correspondence was with the thought that there could be produced evidence to support a bill in the nature of a bill of review for fraud or to invoke, as he thought, the inherent power of the probate court.
It is clear that Justice Bouldin was not satisfied that the Hardy and Watson cases, supra, should be followed in annulling the inherent power of the probate court in that respect. His expression left the legal aspect of it in such condition that it should not be ground to disbar an attorney to accept employment tO’ seek to set aside the probate of a will if evidence could be produced to support it.
Appellant does not seem to have misled Mrs. Edwards as to her rights, as he thought they existed under Justice Boul-din’s opinions in Caverno v. Webb and Jordan v. Tharp, supra, and for such views there was color of right. At the time of his employment much more than three years had elapsed from the date of the probate decree on March 10, 1937. But the three year limit provided for in Equity Rule 66 has application to bills of review, not to bills in that nature for fraud in the concoction of the decree, and with no limit of time specified if the inherent power of the probate court then existed. But three years is one of anagoly .as to a bill in the nature of one of review, subject to extension of time for good cause shown. Urquhart v. McDonald,
There was no more of a continuing duty than exists in respect to the failure to discharge any other duty at a time when it was due to be discharged or to pay money. But the continuance of the duty in that regard does not stop the running of the statute of limitations from the date when it was due to have been performed.
We hold that the proceeding was barred by the statute of limitations, not to say that the facts justified disbarment if it were not barred by limitations.
Reversed and rendered discharging defendant.