Rainey v. Ridgway

41 So. 632 | Ala. | 1906

SIMPSON, J.

— This is an appeal from a decree of the probate court, on the contest of a will, and the sole question presented for the consideration of this court is the right of the appellees to contest the probate of the will, Avhich is raised by demurrer and motion to- strike.

The appellee Ella Ridgway (contestant) alleges that she is the widow of P. A. Ridgway, who was the son and only child of the testatrix (Martha A. Ridgway) ; that said P. A. Ridgway survived-his mother; that he left surviving him no children, or their descendants, no father or mother, no brother or sister, or their descendants; that petitioner is his only heir, and the sole de-visee and legatee under his will; also that, on the death of his said mother, her said husband took possession of all of the property, real and personal, left by his said mother, remained in possession until his death, and contestant has been in possession of the same ever since. In other words, contestant’s husband was the sole heir of the testatrix, and contestant is his sole heir, and sole devisee and legatee; she is certainly the party interested, or the person who, standing in the place of her son, as his sole heir, who would be a distributee of the estate, if there were no will. In the case of Lockwood v. Stephenson. 120 Ala. 641, 24 South. 996, 74 Am. St. Rep. 63, it was held that a creditor, was not a “person interested therein,” because he did not -take an interest in the estate under and by virtue of the will. His was a claim against an interest in the estate, not an inteest in it. In the present case, the appellee Ella. Ridgway is the sole person interested in the estate. There is no analogy between this case and that of the widow, -who has the personal right of dissenting from her husband’s will, which cannot be exercised by her administrator.-Donald v. Portis, 42 Ala. 29. In this case the -widow, being the sole heir, owns the identical property which her husband held, which was an interest in the property left by his mother, and the right of contest is based on that interest.

It was improper for the administrator to file another separate contest, while one was in progress of trial. He could have joined that contest, if he so desired. But this is immaterial, as both petitions together were considered by the court and acted on as one contest.

The decree of the court is affirmed.

Weakley, C. J., and Tyson and Anderson, JJ., concur.