58 So. 257 | Ala. | 1912
Ten years after the death of Martha A. Motes, Leonard Griffin propounded and sought to establish an alleged will of said Martha A. Motes, averring that the said will had been lost' or destroyed, and that his mother, Matilda A. Motes, who resided at Goshen, in this state, was the only child of deceased. J. O. Milligan filed his petition for contest averring, in order to show his interest, that, five years after the death of Martha A. Motes, he had purchased a part of the land, disposed of by the alleged will to proponent,'from said Matilda A. Motes, who was then in possession claiming to own the same. The court refused to consider Milligan’s contest, on the ground that he had no interest in the will. A contest properly framed to show Milligan’s interest should have been allowed.—Elmore v. Stevens, 174 Ala. 228, 57 South. 457. But, proceeding to hear the evidence for the will, the court refused probate. From that decree Griffin appeals, notice of the appeal having been served upon E. R. Brannen, Esq., alone, who seems to have had no connection Avith the case, except as the attorney for Milligan. Milligan seeks to be
“Whenever an application is made to prove a Avill in this state, at least 10 days’ notice must be given to the AvidoAv and next of kin, or either of them, residing and being Avithin the state, before snch application is heard.” —Code, § 6198. Section 2855 of the Code authorizes an appeal from any final decree of the court of probate. “Upon an appeal being taken * * * the judge of probate must issue a citation to the adverse party,” etc. —Section 2881. The probate of a will is in the nature of a proceeding in rem. It assumes the nature of a proceeding inter partes only when there is an intervention of parties litigant, and an actual contest ensues.—Dickey v. Vann, 81 Ala. 425, 8 South. 195. There was no contest in this case, and it is entirely clear that Milligan never became a party adversary to the proponent. The court denied his application to be admitted to contest. The statute provides for appeals from final decrees of the court of probate, as we have seen. It also provides (section 2856) specially that appeals from decrees on contests as to the validity of Avills shall be taken within 30 days, but in other respects under the same rules and regulations as govern other appeals. No provision in terms is made for an appeal by a proponent in a case where, Avithout contest, the probate of an alleged will is denied. Perhaps the proponent’s remedy in such case is by an original application to this court calling into exercise its constitutional jurisdiction in the superintendence and control of inferior courts.—Ex parte Buckley, 53 Ala. 42. At any rate, under the statute no appeal can be maintained Avithout an appellee.—Williams v. Harper, 95 Ala. 610, 10 South. 327. It folIoavs that the appeal in this case must be dismissed.
