120 Ala. 641 | Ala. | 1898
The sole devisee and legatee, Myrtle Stephenson, under the last will and testament of her mother, Mary P. Stephenson, propounded said, instrument for probate in the probate court of Pike county. Appellants filed a contest seeking to impeach its validity, alleging as their right to do so, in effect, that they have a lien as judgment creditors of J. T. Stephenson, the husband of the testatrix, who is wholly insolvent; that by reason of said will their debtor is deprived of his distributive share in the property of his wife ; that Mary P. Stephenson died seized and possessed of-real and personal property, and but for said will their debtor’s distributive share in said property would be subject to the payment of their debts ; and that, therefore, they have such an interest as that gives them the right to institute the contest.'
Demurrers sufficiently raising the question of their right to file and -prosecute the contest were sustained by the probate court, and from this decree appellants appealed. Section 4287 of the Code of 1896, (Code of 1886, § 1989), provides : “A will, before the probate
The contention of appellants is, the words “interested therein” refer to the estate of testatrix, and include every person having an interest in the property attempted to be devised by the will or otherwise, and is not restricted to those named in the will. In other , words, every person who would have had any interest in the property of Mrs. Stephenson, should she have died intestate, are included in the words above italicized. If the section of the Code above quoted did not contain any other provision conferring the right of contest upon others, who may not be designated in the will, there might be some merit in the contention. But it will be observed that it expressly names the class of persons though not named in in the will, who may contest it. These persons are those, “who if the testator had died intestate would have been an heir or distributee of his estate ; ’ ’ clearly demonstrating that the legislature construed the words “interested therein” as referring to and including only such persons as took an interest in the estate of testatrix under and by virtue of the provisions of the will.
But conceding for the sake of the argument that these words are susceptible of the construction-- contended for by appellants, as judgment creditors with-a lien of the husband of Mrs. Stephenson, have they such an interest as will authorize them to institute and maintain this contest?
It is fair to presume, and indeed it appears as to one of the appellants, that when J.T. Stephenson contracted these debts the testatrix was in life. The property was hers and she- had the absolute right of disposition over it up to the very moment of her death. There was not the semblance of privity between her and her husband’s creditors ; she could make such disposition of her entire estate by de'ed, gift or will asshecho.se. Her husband
It may be conceded that in a certain sense a creditor is interested in the acquisition of property by his debtor, for the latter’s ability to pay depends upon the value of his assets which the debtor can appropriate to the payment of, or the creditor can by legal instrumentalities subject to the satisfaction of, his debt. In this sense the creditor is interested in the successful and business prosperity of his debtor. Every enterprise or venture engaged in by him increases or diminishes the chances of the creditor to have his debt paid ; yet, it cannot be seriously contended that the creditor has the right to institute suits against the debtors of his debtor to enforce the breaches of those contracts, or compel his debtor to do so, however much the collection of his debt may be prejudiced. He has in no sense of the words such a tangible interest as would confer upon him, as “any person interested therein,” the right of a suitor. Furthermore, if these creditors have any standing as parties interested, it must be by a theoretical substitution to the rights of the husband as one of the distributees in the estate of the wife had she died intestate. Assuming that on a contest at the instance of the husband the will could, be set aside, how can he be compelled to institute or carry on such a contest? If the wife had tendered him as a gift either land' or personalty, could his acceptance be compelled, in the interest of creditors, if he chose to de
In the views we have expressed we are supported in a very able and elaborate opinion of the Supreme Court of Pennsylvanie in the case of Harriet v. Shepard's Estate, 170 Pa. St. Rep. 323. In that case a creditor of a son of the testator, for whom no precision was made, instituted the contest under the statute of that State requiring that “whenever a caveat shall be entered against the admission of any testimentary writing to probate, and the person entering the same shall allege as the ground thereof any matter of fact touching the validity of such writing, it shall be lawful for the register, at the l’equest of any party interested to issue a precept, ” etc. The court said : “We are of opinion that the creditor of an heir is not a party interested, as designated by the statute. We will not undertake, in the absence of express legislation, to give such scope to this language as claimed for it; will not invite every disappointed creditor of every heir to contest the will of a parent who has attempted to provide for those dependent for subsistence on a thriftless son. For no line can be drawn which will limit the grounds of contest, if a creditor of an heir be a party interested ; incapacity, undue influence, as well as fraud may be alleged by one of. hundreds of creditors ; such an interpretation would increase indefinitely the number of litigants it would be in the power of any one to tie up large estates although the in-est of the debtor heir might be comparatively small. If the estates of the dead are to be subjected to such perils, the legislature must open the door, and that by language of no doubtful import.’’ See also Cochran v. Young, 104 Pa. St. 333; In the matter of the will of M. Louise Brown, 54 Sup. Ct. Rep. (47 Hull) N. Y. 360.
We have examined carefully the case of In re Edward Langevin, 45 Minn. 429, relied upon by appellants. This .case is in conflict with what we have said, and an author
The decree of the probate court is affirmed.