Hooks v. Barnett's

STONE, J. It is objected in this case, that the register in chancery for the 10th district does not appear by any thing in this record to have had jurisdiction of the contest of Mr. Barnett’s will. The provisions of the Code, which bear on this question, are section 560, and sections 1910 et seq. We construed some of the features of these sections in Wilson v. Wilson, 36 Ala. 662-3-4-5. We do not assent to the proposition that, under these sections, it is necessary that the proceeding shall be first commenced in the probate court, and then, by an order of that court, transferred, if the presiding judge be on any ground incompetent to try it. Section 1911 provides for the removal of original papers, in case there are any to remove; but it can not, by any fair construction, be understood as requiring that there shall be original papers in the probate court [610] before tbe jurisdiction can attach to the court of the register. It is contended, also, that the statement in the judgment-entry of the register, that among the children of testator is Mrs. Martha M. Hooks, “who is the mother-in-law of Hon. Bird Fitzpatrick, judge of probate of Pike county,” is mere recital of what appeared on the face of the petition, and not an assertion that such was the fact. We think this position untenable. The petition contains no such statement; and if we were to rule in accordance with this argument, we should convict the register of placing on his record what was plainly untrue. Records import verity, and we are not to presume that judicial officers violate their duty. — Deslonde v. Darrington, 29 Ala. 92; 1 Greenl. Ev. §§ 19, 227; 1. Phil. Ev. (4th Amer. ed.) 642. In support of'this construction of the register’s order, if support be necessary, it may not be out of place to state, that Mrs. Hooks was the sole contesting party in the court below ; that she alone appeals, and assigns errors; and in the allegations filed by her against the probate of the will, she states that the will was propounded for probate before the register, “because of the disqualification of the judge of' probate of said county, from relationship to the parties at interest.” The question of jurisdiction was not raised in the court below, until after verdict was rendered on the issue, establishing the validity of the will. Construing the order of the register as an affirmation that the contestant was related to the judge of probate within the degree which denied to him the right to preside in the trial, w,e think the register, sitting for the probate judge, rightly overruled the motion in arrest of judgment. Affirmed.