Boyett v. Kerr , 7 Ala. 9 ( 1844 )

GOLDTHWAITE, J.

— In the present case an attempt is made by the assignment of errors to connect the judgment admitting the will to probate, with the subsequent decree for a final settlement. Our opinion is that this course cannot be be pursued, inasmuch as the probate is in itself a final judgment, entirely independent of, and distinct from the subsequent administration. In manymases the parties to contest the will would be entirely different from those interested in a distribution under it; and even where the persons are the same, yet the interests of some must necessarily be different under the will from what it would be, if it was out of the way. These reasons are conclusive to show the two decrees cannot be examined under the same writ of error.

2. It might in this case, where the legatees under the will are the same persons as would have been distributees of the estate, if there was an intestacy, perhaps be allowed to the parties to elect whether they will, under this writ of error, proceed to examine the errors which affect the probate, or those supposed to be connected with the final distribution; but if they were permitted to elect the former, the writ of error would necessarily be dismissed, because it is barred by the statute of limitations. The judgment for the probate was rendered on the 14th December, 1839, and the writ of error was sued out in May, 1843. Consequently more than three years had then elapsed from the time of the probate. A writ of error to reverse a judgment of the Circuit Court may be sued out at any time within three years after its rendition, and not afterwards. [Clay’s Digest, 309, § 17.] Writs of error lie from any judgment or order final of the Judge of the County Court to the Circuit or Supreme Courts, in the same manner as upon judgments of the Circuit Court. [Clay’s Digest, 297, § 4.] The effect of the last enactment is to bring writs of error from the County Courts within the bar of the statute first recited, and thus force the Court to examine into the errors of the probate, erai if such was the election of the plaintiff in error.

3. We cannot but lament that the course of practice in our County Courts in testamentary causes is so exceedingly inar-tificial, as frequently to produce general inconvenience to the suitors themselves as well as embarrassing questions to appellate courts; and this record is certainly no exception to what seems to be the general rule. Here we have to grope through the whole case from beginning to end to ascertain who the parties were who should have been before the Court at the commencement of these proceedings. How much more simple and convenient, to say nothing of it as being the appropriate course, would it be for the person asking probate of a will to propound it in writing, with the facts necessary to be proved to make it valid; setting out the names, description and residence of those entitled to the estate as heirs or distributees, and praying that the whole may be admitted to probate. On such an application citations could be issued with certainty, when in its absence all is doubtful or dependent upon the extra-official information of the Court. But with this at present we have no other concern than to call the attention of practitioners and County Judges to the defective practice of these Courts, in the hope that the remarks may, to some extent, cure the evil which now exists.

4. The decree for final settlement is erroneous for the want of the necessary parties, and this is a defect which we are astonished to notice, independent of any assignment of error,. because it shows a total absence of jurisdiction, in the Court to render any decree whatever. Every party entitled to distribution must necessarily be before the Court in .some way before there can be a valid final settlement. It appears when the whole record is considered, that the testator, besides a widow, left eight children, all of whom, either by the will or by statute, were entitled to some portion of the estate. It may possibly be surmised the widow is dead, and it is stated in the writ of error that two of the children had died since the death of the testator. In the first proceedings had, the widow and seven children are named. It is immaterial when the widow, (if in truth she be dead,) or three children died. If the deaths happened after that of the testator, their personal representatives were necessary parties to the final settlement of the estate, inasmuch as they were severally entitled to portions of it, which portions at their respective deaths, instead of lapsing into the general fund became the subject of distribution as parts of their several estates. The reasons for thus making the personal representatives of the widow and children parties to the proceedings will be obvious, when it is considered that it may be possible, that all the surviving children may not be thus related to the widow, and it may also be possible, that some of those who survive are not of the whole blood with one Ur both of those deceased; in either of which events a different sort of distribution would obtain from that which would be proper under the will; but the conclusive reason is, that the survivors have no interest under the will in the portions of those who are dead.

5. However doubtful we should feel that this is a valid nun-cupative will under the statute, we are bound as an appellate Court so to consider it upon error; whether it could yet be questioned in a proceeding in equity, to set it aside, is a question not now to be examined. We should therefore, if it was necessary for the determination of the rights of the parties, proceed to give our views of the construction it ought to receive ; but as this, from the condition of the case is unnecessary, we shall content ourselves with remarking, that it may be questionable whether the bequests which are supposed to be specific, are any thing more than mere trusts imposed on the conscience of the executor. It may likewise deserve consideration whether, if the children for whose benefit these trusts are created should die before the sums should be expended pursuant to the will, the unexpended surplus would not remain as a part of the estate. In this view too it may call for consideration, whether the County Court has any jurisdiction over the trust funds, as if they had such, there seems to be no jurisdiction in that Court to control them. With respect to the children who are entitled to the benefit of these clauses in the will, it is evident the construction depends upon extrinsic facts. 3,000 dollars are appropriated for the schooling of his three youngest children, and 1,500 dollars for his two children at Gainesville. If the children at Gainesville were not of his three youngest, but were older than three others, the knowledge of their circumstances would enable every one to give a satisfactory construction to that which without the information is Uncertain. But let it be supposed that two of his three youngest children were at Gainesville when the will was made, it cannot be doubted his intention was, that out of three, two should receive 750 dollars, and the other of the three 1,500 dollars. Without such a construction under such circumstances the whole clause would be incapable of any signification whatever. The extrinsic facts necessary to the construction of the will do not appear upon the record, but we should hesitate to reverse the decree if this was the only error complained of and ascertained, because it was competent for the parties by exception, to have set out what the facts were, if the proper construction was not given upon the will in connexion with them; and having failed to do so, we should incline to sustain the judgment, upon the presumption that the facts were such as to warrant it; and such would be the case, if the three younger children were at Gainesville and the other two elsewhere, and if one of each class were dead.

For the error we have noticed with respect to the parties, the judgment decreeing a final settlement, must be reversed and the cause remanded, that the parties may take such course as they shall be advised.