Bothwell v. Hamilton

ORMOND, J. The assignments of error present many questions which cannot be considered. No question can be here raised, upon the sufficiency of the probate of the will. After a will has been admitted to probate, and has been acted on by the Court without objection, the propriety of its probate cannot be incidentally, and for the first time raised in this Court. The Orphans Court may certainly, and of its own mere motion, repeal, or revoke letters testamentary, and set aside the probate of a will unadvisedly granted; or, it may upon application confirm, or set aside [465] a probate previously granted, and upon its .action, or refusal to act, a writ of errer may be prosecuted. But when, as in this case, the probate has never been objected to in the Orphans’ Court, and has been the foundation of all the subsequent proceedings, it cannot be thus incidentally questioned. [Shields et al v. Alston, 4 Ala. Rep. 248; Hill v. Hill, 6 Ala. Rep. 166; Boyett v. Kerr, 7 Ala. Rep. 9.] By the provisions o.f the will thus admitted to probaté, and by the widow taking out letters of administration and thus assenting to the bequests, she became invested with the life estate in the property conveyed by the' will, with a vested remainder to the heirs at law of the testator, who take as purchasers. The Orphans’ Court had therefore no jurisdiction to make the distribution, which at the instance of the administratrix, it appears was made among the- heirs. This distribution is not the act of the Court, but is the act of the administratrix, and if done at her instance, as appears to be' the fact from the record, is a gift of her interest, to those amongst-whom the property, was distributed. The inequality of the distribution is a matter which cannot be questioned, as it does not prejudice the rights of the legatees, who take no present interest underthe will, but at the death of their mother will be entitled to their equal share of the estate; a right which no act other’s can impair or abridge. The Court was equally without jurisdiction to 'make, the distribution, which it-appears was made at the instance of the administrator de bonis non, as by the will all the property of the testator, real and personal, was vested in the widow during her life, with remainder to his heirs. These considerations are decisive of the case. N‘o matter how erroneous the action of the Court may have been, as it had no jurisdiction, its acts cannot prejudice any one, being merely void. Let the writ of error be dismissed, there being ho judgment of which the plaintiff in error can complain. As it respects the defendant in error, he may, if he thinks proper, prosecute a writ of error to reverse, the judgment which the Court rendered against him.