47 Ala. 290 | Ala. | 1872
In this State, the probate courts have original, 'general, and unlimited jurisdiction of the probate of wills, whether of real or personal estate. — Rev. Code, §§ 790, 1939, 1944; Gray’s Admr’s v. Cruse, 36 Ala. 559. When a will is propounded and filed in the proper probate court, the court thereby acquires jurisdiction of the probate of such will. The common-law rule does not prevail here, which makes the validity of wills of real estate cognizable only in the common-law courts, and in the ordinary forms of suits, where the verdict and judgment are conclusive only on parties and privies as in other cases. — 2 Gr. Ev. § 672.
A proceeding for the probate of a will is in the nature of a proceeding in rem, and, until set aside or reversed, is conclusive on all persons, and can not be collaterally impeached for irregularities which may have intervened in the proceedings after the jurisdiction of the court attached. Deslonde & James v. Darrington, 29 Ala. 92. Section 1951 of the Eevised Code provides, that whenever application is made to prove a will in this State, at least ten days’ notice must be given to the widow and next of kin', or to either of them, residing and being within the State, before such application is heard. If a will is proved, without notice to a party who is entitled to notice, the failure to give such notice is a mere irregularity; and the remedy for such party is to move the probate court to set aside the probate, or to procure himself to be made a party to the proceedings, by petition in said court, and then sue out an appeal. — Roy v. Segrist, 19 Ala. 810; Stapleton v. Stapleton, 21 Ala. 587; Watson v. May, 8 Ala. 177; 29 Ala. 92. Or he may contest its validity in chancery, under section 1972 of the Eevised Code, within five years after the pro
The second objection to said transcript was not well taken. When the original will itself is offered as evidence, to make it admissible, it must have on it the certificate required by section 1947 of the Revised Code. But the latter part of section 1948 makes the record of such will, and the proof, or a transcript thereof, properly certified by the judge of probate, evidence to the same extent as if the original will was produced, and the same proof made.
Before proceeding to the examination of the questions ■arising on objections made and sustained to the evidence ■offered by the defendant, we will dispose of the exception taken to the ruling of the court in striking from the files the defendant’s plea, filed at the fall term, 1868, in the nature of. a plea puis darein continuance. The substance of that plea is, that after the commencement of this suit, and after the last continuance thereof, one J. W. L. Daniel, the administrator with the will annexed of said James M. Hall, deceased, had commenced an action of ejectment against said defendant for the recovery of the house and lot sued for in this case; that there were outstanding demands against said estate, which had come to the notice of said administrator, and had been duly presented to him; ■and that said house and lot were the property of said James M. Hall at the time of his death. This plea was manifestly bad. It did not state that said suit was pending when it was filed; and if it had contained that statement, it did not follow that the suit would ever be tried, or, if tried, that' the plaintiff therein would recover. It did not aver, nor did the facts stated, if true, show that the title of the said administrator was superior to the title of the plaintiffs in this suit. It did not, in fact, show that he had any title at all. On the contrary, the facts stated 'showed that he had not. It would have been manifestly
On the death of the testator, James M. Hall, the title to said house and lot vested immediately, by virtue of his will, in his widow as devisee; and, on her death, descended to her heirs-at-law. And they are entitled to recover the property, and to retain the possession thereof, until the personal representative of the testator subjects it, if necessary, to the payment of debts, in the way authorized by the statute. — Chighizola v. LeBaron, 21 Ala. 406; Long v. McDougald’s Adm’r, 23 Ala. 43.
The principle settled in Kennedy v. Holman & Howard, (19 Ala. 734,) is, we think, an authority against the plea, although the facts of that case and this are, in many respects, unlike. In that case, it was held that a recovery of the premises by a stranger, in an action against the plaintiff, could not be pleaded puis darein continucmce to defeat his recovery.
Eor these reasons we hold, that the court below committed no error in striking the plea from the files.
The evidence offered by the defendant under the plea of not guilty, and excluded by the court on the plaintiffs’ objection, was irrelevant, and was, therefore, properly rejected. As we have already stated, the action commenced by the administrator de bonis non, against the defendant in this case, to recover the said house and lot, was no defense to .the plaintiffs’ action. The evidence offered in connection with that proceeding, that there were unpaid debts of said testator, James M. Hall, did not change its character as a defense in this case. These plaintiffs were neither parties nor privies to that action, and could not be prejudiced by it in this suit. Whatever the rights of the administrator de bonis non, as such, may have been, or may
It only remains to examine the charges given and refused by the court; and if no error is here found, the judgment below must be affirmed. The first charge given is manifestly right. The order of sale is- a mere nullity. The petition of the executor conferred on said probate court no jurisdiction to make said order. It merely states, that “he believes it necessary to sell” the drug-store lot, and that “he wishes to sell it under an order of the court.” This is the whole of it. It does not state that the will gave no power to sell, nor that a sale was necessary to pay debts; nor does it state the names of the heirs or devisees. The order itself appears to have been made on the fifing of the petition. No day was appointed for a hearing of said application, and no hearing is shown to have been had. The order of sale is in these words: “ Ordered that Matthew Hall, executor of James M. Hall, be allowed to sell drug-store in town of Midway.” The executor sold said house and lot under this order, and one Yan Hoose became the purchaser at the sale, to whom the executor made a deed, and who, shortly afterwards, re-conveyed the property to the defendant. The court charged the jury, that said order of sale, and both of said deeds, were void, and that no title was conveyed to the defendant. We think no time should be wasted to show the correctness of said charge.
The second charge, which was given on the written request of the plaintiffs, instructed the jury, that, if they believed the testimony, they must find for the plaintiffs, and that the plaintiffs were entitled to recover the value of the rent of said drug-store lot. It has been repeatedly held by this court, that when the evidence is clear, and
From what has been said it follows, that there was no error in refusing the charges asked by the defendant.
Let the judgment be affirmed, at the costs of the appellant.