Sowell v. Sowell's Adm'r , 41 Ala. 359 ( 1867 )

JUDGE, J.

This case was before this court, at the June term, 1866, and was then, necessarily, considered and determined upon the allegations of the petition alone. Now, it is presented in a different aspect, the record showing that the decision of the court below was based upon evidence, which is fully exhibited.

It is the well-settled law of this State, 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 their application to the court. Was the appellant in this case, as one of the heirs of George Sowell, deceased, notified, as the law directs, of the application to admit to probate the will of the latter ? The appellant was in the military service of the Confederate States, at the time of the application. A statute was of force at that date, which provided, that all persons absent from the State, in the army of the Confederate States, might be made parties by courts of probate, in all applications to probate wills, and for the granting of letters of administration, by publication in a newspaper, as in cases of non-residents.—Acts, 1862, p. 72. On the application for the probate of this will, the court ordered, that the appellant, together with the other heirs of the decedent, have due notice of the application, and of the day set for the hearing, “ as the law directs”; and in the proceedings of the court admitting the will to probate it is recited, that notice had been given to the appellant, and to the other heirs, of the application, and of the time appointed for hearing the same, “ in pursuance of law, and in strict accordance with the former order of the court.” No evidence was adduced by the appellant on the hearing of his petition in this case, controverting the truth of these recitals of the record; and in the absence of evidence showing their incorrectness, they are conclusive against him. The probate court has original, general, and unlimited jurisdiction over the probate of wills; and every reasonable intendment will be made to sustain its decrees, entered in the exercise of such jurisdiction.—McGrews v. McGrews. 1 Stew. & Por. 30; Apperson v. Cottrell, 3 Por. 51; Johnson v. Glasscock, 2 Ala. 218; Ikelheimer v. Chapman, 32 Ala. 676; Gray’s Adm’r v. Cruise, 36 Ala. 559. It re-suits, that the court below did not err, in refusing to set aside the probate of the will.

2. The appellant prays in his petition, not only that the probate of the will may be set aside, but that the appellee may be compelled “ to deliver up his letters of administration for cancellation and repeal”; and it is contended, that the court below should, at least, have revoked the letters of administration granted to the appellee, because they had been prematurely granted. If the petition, as it stands, will authorize the presentation of this as a distinct question ; still, it is a sufficient answer to it to say, that no person named as executor in the will applied for letters testamentary within thirty days of the probate thereof, (Code, § 1663,) and that no person, entitled to letters of administration with the will annexed, oh such failure, made application for the same within the time prescribed by the Code; and hence, under the previous adjudications of this court, all such persons must be held to have relinquished their right to the administration.—Curtis v. Williams, 33 Ala. 570; Forrester v. Forrester’s Adm’rs, 37 Ala. 398. Whether or not the letters to appellee were prematurely or improvidently issued, or whether the court should not, under the circumstances, have appointed a special, instead of a general administrator, are questions which the appellant is not in a situation to raise.

Let the judgment of the probate court be affirmed.