Walker v. Jones , 23 Ala. 448 ( 1853 )

GIBBONS, J.

It is assigned for error that the court below rejected the proof of the declarations of Jones, (the appellee and proponent of the will,) tending to show that the testator was of unsound mind at the time the will was made. It will be observed that Jones, the proponent of the will, is the husband of one of the legatees under it. He holds, therefore, the same relation to the contestant, so far as the principle involved is concerned, as if he were directly a legatee. Tho question then arises, can the declarations of one of several legatees under a will be received in evidence to impeach its validity on an issue involving the question whether the will is or is not valid. This question is answered by a previous adjudication of this court in the case of Roberts v. Trawick, 13 Ala. 68. Chilton, J. remarks in this case : “ We feel safe in declaring the correct rule to be, that when a will is propounded to the Orphans’ Court for probate, and is there contested, the admissions or declarations by one of several legatees of the unsoundness of the testator’s mind, or that fraud, imposition or undue influence was practiced upon or exercised over him, shall not be received to invalidate the will to the prejudice of the other legatees ;” citing Dan v. Brown, 4 Cow. R. 483. This is entirely decisive of the question, and shows that the court committed no error in excluding the declarations of Jones.

Again ; it is assigned for error, that the court refused to dismiss the proceedings on the motion of the contestant. This motion was predicated upon two grounds: 1st, that the heirs or next of kin of the testator, residing in the State of Alabama, bad not been notified ; and 2d, that the court could not hear and decide the cause at any other than a regular term of the court.

It is undoubtedly true, that the statute requires the heirs at law or next of kin of the deceased to be cited by a personal notice when a will is offered for probate, if the proponent of it would conclude the rights of those who have an interest in contesting the will, by the judgment admitting the same to probate.—Clay’s Digest 303 § 34; Shields v. Alston, 4 Ala. 252; Lee v. Browning, 15 Ala. 496; Roy v. Seagrist et al., 19 Ala. 810. The present record does not show any notice whatever to the heirs at law, other than that of publication; and the question now arises, whether John G. Walker, one of the heirs who appeared and contested the will, can be heard to assign for error that which does not affect him, but which affects only the other heirs'? The present record does not disclose who are the heirs at law, or where they reside, except that some of them are nonresidents, and some reside within the limits of the State ; but who they are that reside within the limits of the State, is not shown.

It is doubtless the right of each and every heir at law of the testator, whose will is propounded for probate, to appear and contest the same ; but this right is one which each heir possesses individually for himself, and which he exercises for himself alone. We do not think it necessarily follows, where there arc several heirs, that one cannot exercise this right, and thus bar himself by the decree, without the others joining in the contest. If he can do so, then, it is not for him, after a trial had in which he has appeared and tried his interest in the will, to set aside the judgment and annul the decree, by suggesting that there are other heirs who were not before the court. The proponent of the will, who proceeds in this manner, does so at his peril, as he is liable to have as many trials as there are heirs at law. A decree admitting a will to probate, without having resident heirs before the court by process served upon them or their guardian, most surely cannot conclude their rights, and as often as any one of them appears before the court and makes himself a party to the record, he can reverse the decree in this court.

Such a course of proceeding would doubtless be impolitic both for the court and the proponent; but we see nothing illegal in it, as we are clear that the court has jurisdiction of the subject matter, and may try the question with any number of the heirs less than the whole before it; or it may stay its proceedings until they are brought in, and then try the question so as to bind all. The court, then, having jurisdiction to try the question with any one of the heirs before it, it follows as a necessary consequence, that one heir could not assign for error the absence of another heir in the trial of the issues which were to establish or bar his rights in the premises. There tvas, therefore, no error in refusing to dismiss the cause because the resident heirs were not brought before the court. These heirs may acquiesce in the will, for aught this court can know; at all events we can only interpose to protect their interests, when they present themselves before us, and demand our aid.

It cannot avail the appellant on error that the issues were tried at a time other than the regular term, as the record shows that it was by his consent that the time at which the trial was had was named. He is therefore estopped from objecting to its legality. There tvas, therefore, no error in not dismissing the cause for either of the reasons alleged.

It is further insisted in argument that the instrument offered as a will was illegally probated, because it is in fact a deed, and not a will. We think otherwise. We think it is apparent from the instrument, when taken as a whole, that it was intended as a will, and not as a deed. It is true it is called by the testator a deed, but tho whole structure of the instrument, and the legal effect of the language employed, show that it was intended as a disposition of the property of the testator by bequest, a donation causa mortis, and not by deed inter vivos. Under such circumstances, it matters not what the instrument is called by the author, as it is the intention apparent upon the face of it that must give it its real character. In the present case, ayo have no hesitation in arriving at tho conclusion that the instrument propounded was a will, and not a deed.

It follows there is no error in the record, and the judgment of the court beloAvis affirmed.