Baker v. Bain

*619 THOMAS, Justice. The question presented on this appeal was the granting of the motion of appellee to strike contest challenging the validity of a codicil to the last will and testament of Samuel M. Hendricks, deceased, and in the probating of the will and codicil thereto. It is provided by statute, that: “Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county, in which the contest is made, and must certify all papers and documents pertaining to the contest to the clerk ,of the circuit court, and the cause shall be docketed by the clerk of the circuit court and a special session of said court shall be called for the trial thereof. The issues must be made up in the circuit court as if the trial were to be had in the probate court, and the trial had in all other respects as trials in other civil cases in the circuit court. An appeal to the supreme court may be taken from the judgment of the circuit court on such contest within thirty days after the rendition of such judgment.” Code of 1923, § 10636. The sixth assignment of error is: “The Probate Court committed reversible error in refusing to transfer the contest of this case to the Circuit Court on the demand in writing of appellant’s contest filed in this case as provided by Sec. 10636 of the Code of 1923.” The facts present a construction of this statute. Samuel M. Hendricks executed a will on the 6th day of August, 1938, and named therein as beneficiaries Romania Baker, the appellant in this case, together with Lila Bussey and others. The testator then executed a codicil to his last will on the 7th day of September, 1938; and died on the following day. In the original will the said testator designated Joseph J. Bain as executor thereof, who, on September 14, 1938, filed his petition in the probate court seeking to have the-last will and testament, together with the codicil thereto attached, probated. On October 8, 1938, within the time allowed for pleading to the petition of said executor, the said Lila Bussey, one of the beneficiaries named in the said first will, filed her contest of the will, demanding a trial by jury in the probate court of the county in which the will and codicil were sought to be probated. - The court fixed the day for the hearing of contest for October 20, 1938. On said date, before any testimony was taken or any witnesses examined with reference to the probating of said will, the said Lila Bussey filed her written motion dismissing her said contest. The court granted her motion and dismissed her contest of the codicil of said will. The decree of the court dismissing said contest of Lila Bussey is in the following language: “And thereupon it is ordered that said motion of the said Lila Bussey be and is granted and her contest dismissed.” The decree is dated October 2, 1938. On the same day, before the court entered its decree dismissing the contest of Lila Bussey, and before the examination of any witnesses and before the taking of any testimony with reference to the probating of said will, the appellant Romania Baker filed a contest to the said codicil of the last will and testament of said testator. It is insisted that the contest of the said codicil filed by Romania Baker, appellant, was the initial pleading filed by her. She demanded in writing that the case be transferred to the circuit court of that county for trial and demanded a trial by jury of her contest. It is further insisted by appellant that this action by the contestant was in accordance with and as provided by Section 10636 of the Code of Alabama of 1923. Appellee filed motion to strike said contest of appellant on separate grounds, viz.: “Because the petition of Joseph J. Bain for the probation of said will of the said Samuel M. Hendricks was filed in this Court on the 14th day of September, 1938, and on said date the Court made an order fixing the date for the hearing of said petition on the 8th day of October, 1938, of which order notice was served upon *620 Romania Baker, and contestant; -and that on the 8th day of October, 1938, Lila Bussey, one of the devisees mentioned in said will, appeared and filed an [a] contest of the codicil to said will, and upon the filing of which the Court made'an order and formed the issues to be tried, as provided by law, by a jury of this Court on this date, of which contest the said Romania Baker, the contestant, had knowledge before the filing of the contest here sought to be stricken; and that the grounds of contest assigned by the said Romania Baker is (are) the same as set forth in the contest of the said Lila Bussey, and that the said contest of the said Lila Bussey is now pending in this Court. Movant refers to the said petition for probate and the order thereon, the. contest filed by the said Lila Bussey and the order thereon, and the notices served upon Romania Baker of the probation of said will, and makes the same a part of this motion. “2. Because the said contest was filed too late in this Court. “3. Because this Court has no jurisdiction to file said contest at this date. “4. Because there is a collusion between the said Lila Bussey and the said Romania Baker in an attempt to have the said cause transferréd to the Circuit Court, in Equity, in the name of the said Romania Baker, as ■the contestant, after the said Lila Bussey had failed to demand a transfer of the said cause to the Circuit Court, in Equity, on the filing of her contest in the Probate Court.-’ The court granted said motion of appellee and dismissed the contest of appellant, refusing to transfer the case to the circuit court on the grounds that the petition was not within the provisions of Section 10636 of the Code. The facts may be thus concretely stated: That before the examination of any witnesses whose testimony would establish the will, subsequent to the order of dismissal of the contest of Lila Bussey and while there was no contest then pending in said court, testing the validity of said last will and codicil, Romania Baker, the appellant, moved the court'to refile her said contest which had been stricken by the court over objections, and that motion was overruled and appellant’s motion to refile said contest denied. The relevant part of the de•cree is as follows: “On consideration of the Court, it is adjudged and ordered by the Court that the said motion to refile the contest of Romania Baker is hereby denied, to which ruling of the Court Romaniá Baker, by her attorney, duly excepts.” These actions of the court, in striking appellant’s contest, and in overruling appellant’s motion to refile her contest before any testimony was taken, it is insisted, was in denial of the right of appellant to have the contest of the codicil to the said will of the testator transferred to the circuit court and tried by a jury, within the provisions of the statute. A will, or codicil thereto attached, may be contested by any person interested therein before the probate thereof by filing contest as provided by law. Code of 1923, § 10625. And appellant, Romania Baker, is a person interested in the will filed for probate in this case, she has the right to contest the same or to contest the codicil thereto attached as one of the beneficiaries named in the will filed for probate, if she acts within the provisions of Section 10625 of the Code of 1923. Allen v. Pugh, 206 Ala. 10, 89 So. 470; Brassell v. Brassell, 217 Ala. 444, 116 So. 530. The right to contest a will, under § T0625 of the Code, by any person interested, and the right of transfer from the probate court to the circuit court by any party to the contest, under § .10636 of the Code, is different. The latter is dependent on the demand of any party to the contest, made in writing at the time of filing the initial pleading. Here the initial pleading by one contestant was not accompanied by such a request for transfer. Such request in writing was duly made by the second contestant. It was the initial pleading by that contestant and within the terms of the statute. Hence the probate court did commit reversible error in refusing to transfer the contest to the circuit court. The decree of the probate court is, therefore, reversed, and the cause remanded. Reversed and remanded. ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.