Lees v. Brownings , 15 Ala. 495 ( 1849 )

DARGAN, J.

The statute, in express language, requires the next of kin to be informed of an application to probate the will of a deceased relative, and only allows the application to be heard, and determined without notice, when the next of kin do not reside in the State. Clay’s Dig. 303. The record shows, that the minor heirs of Mary Lee, were of the next of kin to the testator, and interested with the other next of kin, in his estate. Yet the will was probated without notice to them, or to their guardian. This is clearly an error, for which the probate of the will must be reversed. 4 Ala. Rep. 242.

The plaintiffs in error, claiming an interest in the estate of tke deceased, and a right to examine into the decree probating his will, filed their petition, setting forth their interest; and notice of their petition being given to the executors, and other next of kin, they were admitted as parties to the record. This is the correct practice, and entitles them to sue out a writ of error. Watson and wife v. May, 9 Ala. Rep. 177.

The final decree probating the will, must be reversed, and the cause remanded, for further proceedings.