Gant v. McCarty , 242 Ala. 350 ( 1942 )

Neither the order of the circuit court, sitting in equity, overruling the motion to strike, nor the order overruling the demurrer to the petition of Blanche K. McCarty, is within the statute authorizing appeals from interlocutory decrees. Code of 1940, Tit. 7, § 755; Montgomery, Superintendent of Banks, v. Jefferson County, 228 Ala. 568, 154 So. 785.

Nor is the appellant or petitioner here entitled to the writ of mandamus. The only question presented is the right of the petitioner to file the petition, and the sufficiency of the petition to invoke an interpretation of the will raised by motion to strike, and demurrer. She is named in the will, at least as a contingent legatee, and is a proper party to the administration proceedings and is entitled to file such petition and have her rights determined by the circuit court on a hearing on pleadings and proof. The substituted petition to that end is sufficient.

It is well settled that the court should not proceed with the construction of the will on a hearing on demurrer. Ashurst et al. v. Ashurst, 175 Ala. 667, 57 So. 442.

Appeal dismissed; mandamus denied.

GARDNER, C. J., THOMAS, and FOSTER, JJ., concur.