Sowell v. Sowell's Adm'r

40 Ala. 243 | Ala. | 1866

JUDGE, J.

By repeated adjudications of this court, it has been settled, that when a will is admitted to probate, without notice having been given to those who are entitled to notice, the probate will .be set aside on proper application. In Roy v. Segrist, (19 Ala. 810,) this question was involved ; and the judge who delivered the opinion of the court in that case, said: “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. Such is the constant practice of the ecclesiastical courts of England.” And such, too, as we have already said, is the settled law of this State. — Hill v. Hill's Ex’r, 6 Ala. 166; Stapleton v. Stapleton, 21 Ala. 587; Bradley v. Andress, 27 Ala. 596; Lovett v. Chisolm, 30 Ala. 88.

It appears from the allegations of the petition in the case before us, that an instrument purporting to be the last will and testament of George Sowell, was propounded for probate, by the appellee, in Dale county, on the 21st of September, 1863, which was seventeen days only after the death of the testator, the proponent having no interest in the estate, either as a distributee, or 'as a devisee under the will; that on the 12th of October, 1863, the court admitted said instrument to probate, as the. last will and testament of said George Sowell; that the petitioner is the son of said George Sowell, deceased, and was, at the* time said instrument was propounded for, and admitted to probate, absent in the military service of the then Confederate States, and had no notice of the proceedings; and a-prayer is made to set aside the probate. Many other allegations are made in the* petition, which it is unnecessary to notice, which should have been regarded by the probate court as surplusage.

If the proper parties had been notified of the application, it was the duty of the probate court to have entertained the petition, and given the right to the adverse parties in interest to contest it; and if satisfied by evidence of the truth in substance of the allegations above set forth, to have vacated the probate of the will, and repealed the letters of administration with the will annexed, to the appellee.

2. It was not necessary, though such is the better practice, that the petition should have disclosed who were all the parties in interest. In such a case, however, all the parties in interest should be brought to the notice of the court in some way, and be regularly notified of the application. The proper practice in this regard, is designated in Hill v. Hill's Ex’r, 6 Ala. 166. It is, on the filing of the petition, to apply to the judge of probate for a citation to the executors and other parties in interest, to appear on the day set for the hearing, and show cause why the probate of the will should not be vacated, and the letters testamentary or of administration be repealed; and the record of the proceeding should show that the parties in interest have been notified of the application.

3. If congress has the constitutional power to tax judicial process of the State courts, — a proposition we by no means affirm — a petition of the character of that filed in the present case, does not come within the letter or meaning of the act of congress which requires a stamp upon “writs, or other original process, by which any suit is commenced, in any court of record, either of law or equity.”— IJ. S. Statutes at large, vol. 13, p. 110. Consequently, a revenue stamp upon the petition was not necessary, even if that portion of the act of congress is constitutional.

It follows that the probate court erred in dismissing the petition; and its decree must be reversed, and the cause remanded.