Roy v. Segrist, 19 Ala. 810

Roy v. Segrist

19 Ala. 810 | Ala. | 1851

CHILTON, J.

We entertain no doubt upon the point made by the counsel for the plaintiff in error, that it was the duty of the Judge of Probate, if the will was admitted to be proved in the absence of notice to the next of kin, to set aside such probate upon the application of any one of such kin^ provided the law requires them to be notified.—Hill v. Hill, 6 Ala. 166-8-9; Shields v. Alston, 4 ib. 248; 5 Sme. & M. 82. Such is the constant practice of the Ecclesiastical Courts of England. It is also settled, that the next of kin, if entitled to notice, may come by his petition into the Probate Court, propound his interest and be made a party so as to sue out a writ of error. — 9 Ala, 177; 15 ib. 495. So that the only question involved in this case, about -which we could have any difficulty, relates to the construction of the 8th section of the act of 1821, as printed in Clay’s Dig., p. 303, § 34, which requires the clerk to issue citation, that the sheriff may summon the widow or next of kin to contest the application for probate of the will, & c.

*814• Were we required to construe this statute, as above stated in the disjunctive form, with regard to notice, we should be strongly inclined to hold against the letter, that the will of the Legislature, as deducible from the body of-' our:acts-relating to this subject, and in.consonance with their-true sense and reason, was, that both the widow and next of kin, being interested in the estate, should be notified of the application to prove the will which makes a disposition of such estate.—Easton v. Studd, 2 Plowd. 459, and note 465.

But it is unnecessary to go into this question, since the word “ or” in the statute as copied in Clay’s Digest is a misprint. The statute reads, “the clerk shall issue a citation requiring the sheriff to summon the widow and next of kin,” &c. — -See the whole act correctly set out in Toulmin’s Digest- of the Laws of Ala., p. 191 to 200. It has moreover been held by this court that notice of the application for proving the will must be given to the next of kin, if residing in this State, and that this is required by “the express language of the statute.”—Lee v. Browning, 15 Ala. 496; Shields v. Alston, 4 ib. 252.

Let the decree of the Probate Court be reversed and the cause remanded for further proceedings.