Ex Parte Walter

The bill of complaint filed by the petitioners against respondent Jesse B. Walter has for its primary purpose the contest of the probate of the will of Duncan C. Walter, which was duly admitted to probate in the probate court of Montgomery county without contest.

In separate paragraphs of the same bill, however, the validity of a certain deed to real estate, and a bill of sale to personal property, executed at different times by the said Duncan C. Walter to respondent Jesse B. Walter, is attacked. These instruments are likewise sought to be canceled and annulled.

Motion was made to strike from the bill of complaint the averments in reference to the deed and the bill of sale as immaterial and impertinent, and not properly contained in a bill — the primary object of which is to contest a will.

It is conceded that mandamus is the proper remedy, there being no other adequate relief for petitioners if they are entitled to relief. The foregoing is the sole question presented for consideration here.

It is clear and not controverted that a suit to set aside a deed or a bill of sale for fraud or undue influence is a proceeding inter partes, and binding only upon those who are parties to the suit and their privies.

It is contended by counsel for respondents to this petition that a proceeding to contest a will in a court of equity, under the provisions of the statute, is a proceeding in rem, and that the questions for consideration are necessarily confined to that issue; any other matters presented being immaterial, and, therefore, impertinent, and subject to be stricken. This is the theory upon which the trial court proceeded.

In Bromberg v. Bates, 98 Ala. 621, 13 So. 557, it was said that —

"An impertinent fact is one whether true or not, can have no influence in leading to a result."

In Fletcher, Eq. Pl. Pr. § 117, it is said:

"Impertinence consists of any allegation that is irrelevant to the material issues made or tendered. It involves more than prolixity, and consists in recitals of fact which are entirely immaterial to the issue."

If it be conceded, therefore, that the matters set up in the bill, as to the deed and bill of sale, are wholly immaterial to any issue presented, or that could be presented in the bill, as one to contest the probate of the will, then, we are of the opinion that, under the rule above cited, these averments may, upon motion, be properly stricken as impertinent.

We have said that the bill is clearly one having for its primary purpose the contest of the will, and this, we think, necessarily follows from the consideration of its frame and character; and from the further fact, it appears upon its face the complainants in that bill are entitled to no relief whatever as to the deed and bill of sale, so long as the probate of the will remains undisturbed. The will had been duly admitted to probate, and its probate was a proceeding in rem, binding and conclusive upon the world until set aside as provided by law. Such being the case, therefore, the bill shows upon its face that the complainants are entirely without interest as to the deed and bill of sale, unless the bill to contest the probate of the will is successfully terminated. Their interest as to the deed and bill of sale is entirely contingent upon the result as to the contest of the will. The bill is clearly filed primarily to contest the will of Duncan C. Walter, deceased, in a court of equity, as provided by section 6207 of the Code of 1907.

In McCann v. Ellis, 172 Ala. 60, 55 So. 303, it was held that a proceeding to set aside the probate of a will was a proceeding in rem, to determine exclusively the status of the res, and not the rights of the parties. We take the following pertinent excerpt therefrom:

"It has been uniformly ruled by all English and American cases which we have examined that proceedings to probate or to set aside the probate of wills are proceedings in rem and not in personam; that such proceedings are exclusively to determine the status of the res, and not the rights of the parties. Judgments or decrees as to the status of the res, in proceedings strictly in rem, are conclusive against all the world as to that status; while such judgments as to the rights of parties, whatever may be the point adjudicated, not being as to the status, are only conclusive between the parties or privies to the suit."

Subsequently, in Kaplan v. Coleman, 180 Ala. 267, 60 So. 885, it was said:

"The probate of a will is a judgment in rem. * * * Its validity and effect can be contested and vacated only by a seasonable appeal, or by a bill filed under the statute. It determines the status of the res; that is, whether there is a will or not, and not the rights of the parties under the will. * * * The contest of a will in chancery is in the nature of a proceeding in rem. If successful, the decree is conclusive that there is no will either in whole or in part as the contest may be framed and the proof may show."

It is conceded by counsel for petitioners that a proceeding to probate a will is a proceeding in rem; but it is insisted that the contest of a will in a court of equity, under the statute, is a proceeding inter partes or in personam. When, however, it is considered that the contest of a will in a court of equity under the statute is in fact but an extension of the time of contest, and, in reality, but another form of defense to its probate, the logic of the reasoning is not clear, for we are unable to see any sound reason why the probate of the will should be a proceeding in rem, and its contest, or defense against its probate, should be only a proceeding inter partes.

Much stress is laid upon the expression found in Deslonde v. Darrington, 29 Ala. 92, where it was stated that, while the probate of a will is a proceeding in rem, yet, under our system, when there is a contest, it partakes somewhat of the nature of a proceeding inter partes or in personam. Just preceding this statement the opinion cites the case of Hunt v. Acree, 28 Ala. 580, in which it was said that the contest of the validity of a will by a bill in chancery is in the nature of a proceeding in rem.

In McCann v. Ellis, supra, the question was squarely presented to this court, and it was held that such a contest was a proceeding in rem; and, when properly construed, we are of the opinion there is nothing in the language used in Deslonde v. Darrington, supra, at variance with this holding.

While the contest is in the nature of a proceeding in rem for the sole purpose of determining the status of the res, and not the rights of the parties, yet, under our statutory system, it does partake somewhat of the nature of a proceeding inter partes, as those of adverse interest are to be parties to the suit (McMaken v. McMaken, 18 Ala. 576); but, clearly, not to such an extent as to affect its binding force as a proceeding in rem. The question was squarely presented in McCann v. Ellis, supra, and we adhere thereto.

Not only is the contest of the will, by bill in chancery, under the statute, a proceeding in rem, but it is one entirely of statutory creation.

When the will was offered for probate in the probate court, the right of contest existed in the heirs. But they were under no duty to exercise the right in that court, and have preferred to contest the will in a court of equity, as provided by the statute. This statutory provision has been defined, not as primarily a limitation, but as an extension of the time of contest; so that one interested, who did not enter into a contest in the probate court, may do so in the chancery court within the period of time there stipulated.

The statute merely confers upon a court of equity the jurisdiction of the probate court as to the contest of a will, and that court therefore, in such a proceeding — in the exercise of this special statutory power — exercises a limited jurisdiction. McEvoy v. Leonard, 89 Ala. 455, 8 So. 40; Cox v. Johnson, 80 Ala. 22.

In speaking of such a contest, in McCann v. Ellis, supra, it was said:

"The only question really adjudicated, or that could or should have been adjudicated, was the question: 'Will or no will.' This was determined in the negative. The court, however, went, or attempted to go, further, and limited this status only to the rights of complainant. This the court could not do, because it was not within the issues raised by the pleadings. It probably could not have been done, had it been so attempted; but it was not so attempted. So much of the decree as attempted to limit or confine the status of the res to the rights of the complainant alone was wholly gratuitous and unavailing."

In the same case, the following definition of a judgment in rem, taken from Martin v. King, 72 Ala. 360, is found:

"A judgment in rem has, among many other definitions, been said to be 'an adjudication upon the status of some particular subject-matter by a tribunal having competent authority for that purpose,' or, in other words, 'a solemn declaration, proceeding from an accredited quarter, concerning the status of the thing adjudicated upon, which very declaration operates accordingly upon the status of the thing adjudicated upon, and, ipso facto, renders it such as it is thereby declared to be.' "

It therefore appears from the foregoing authorities that the contest of the will, by a bill in equity, was in the nature of a proceeding in rem, and as such the only question presented was the determination of the status of the res, and in no manner involved the rights of the parties. Such a contest is but an extension of the time for contest, and is solely of statutory creation.

In the McCann Case, supra, it was held that the only issue properly presented in cases of that character is the issue, "Will or no will" — the determination of the status of the res.

A somewhat analogous situation to that here presented is found in McEvoy v. Leonard, supra. While the questions presented in the two cases are not entirely the same, yet some of them were to a degree suggested by the record, and there is a very strong intimation by the court that the contest of the will should first be determined, before any other questions are presented for consideration. The court, speaking through Chief Justice Stone, said:

"We are tempted to inquire if the validity vel non of Mrs. Leonard's will should not be first determined, before any other questions sought to be presented are brought before the court."

It will therefore be seen there is in fact not here presented the question of multifariousness, but more a question of multiplicity of proceedings; and we have reached the conclusion that in a bill to contest a will, under the statute — being in the nature of a proceeding in rem to determine the status of the res, and not the rights of the parties, and of purely statutory creation — the issues are confined to the question of "will or no will," and therefore to the determination of the status of the res and matters pertaining thereto, and is not to be extended to questions concerning the rights of the parties.

We therefore conclude that such other collateral matters, as those here presented, concerning the execution of a deed at one time and a bill of sale as to personal property at another, presented wholly immaterial and impertinent issues, and were therefore properly stricken upon motion of respondent.

It results from this conclusion that the writ will be denied.

Writ denied.

ANDERSON, C. J., and McCLELLAN, MAYFIELD, and THOMAS, JJ., concur.