67 Ala. 469 | Ala. | 1880
— The Plobate Court erred in allowing the petitioner, Chandler, to read in evidence his own sworn petition. It was, at most, an ex-parte affidavit, and not legal evidence, that its averments were true. The facts averred therein, some of them, are record facts, and their existence can only be proved by the record itself. The hill of exceptions states it contains all the evidence on which the probate judge acted, and it does not contain the record of the suit and recovery mentioned in the petition. As we can not know what influence this illegal testimony exerted, in forming the judgment and decision of the judge of probate, we cannot affirm that this ruling was error without injury. This works a reversal of this case. — Blunt v. Bates, 40 Ala. 470.
The record shows that appellants had propounded a paper in the Probate Court of Etowah, which they proposed to prove, and establish as the last will of Elizabeth G. Jordan, the right to administer whose estate is the contention in this suit. The paper thus propounded is not found in the present record, and we are not informed what it contains. If its dispositions are different from the law of descents and distributions, and if it be established as a will, then much that has been done, or might take place on the postulate of intestacy, it might become necessary to undo, and administer otherwise. A legally established will becomes tbe law of descent and distribution governing the particular estate, unless it contravenes some rule of law, or of public policy. If there is a will, and that will be established, then administration granted as of an intestacy, would be irregular and revocable. — Braughtan v. Bradley, 34 Ala. 694. In cases circumstanced as this was, when ruled on in the Probate Court, the better practice would be to appoint a special administrator to preserve the assets, until the contest, devisavit vel non, is determined. The consideration which would control in selecting and appointing an administrator with the will annexed, might be very different from those which would govern, if decedent died intestate.
Reversed and remanded.
