Kirby v. Kirby's Adm'r

BYBD, J. The mo dp or form of making probate of nuncupative wills is prescribed by statute, and is the only one authorized in our jurisprudence. The effect of our statutes is to require them to be proved in form of law; and therefore proof in common form, as made in the spiritual courts of England, is not allowable in this State, (if it ever were in England,) in the probate of such wills. 2. Under a practice established in this State, by a series of decisions, which, from their long standing, should not now be questioned, it is settled, that any distributee of the estate of a testator, entitled to notice of the probate of the will, and not having received such notice prior to the probate, may make an application to the court in which the will was probated, to vacate and revoke the probate; and that the same should be granted, if it appear that the applicant was entitled to notice and none was given. Thus far our decisions have uniformly gone. In this case, it appears [496] on the face of the application, that the parties seeking to have the probate vacated were non-residents of the State at the time the will was propounded for probate, and have been such ever since. They were not, therefore, entitled to notice of the probate under the statute in force at the time the will was admitted to probate. — Shields et al. v. Alston, 4 Ala. 248; Clay’s Digest, 303, § 34; ib. 597, § 3. Not being entitled to notice, they have no right to call on the court to vacate the probate, on the ground that they did not have notice. - Roy v. Segrist, 19 Ala. 810; Bradley v. Andress, 27 Ala. 596; Lovett v. Chisholm, 30 Ala. 88. 3. Appellants insist, that the order appearing on the record does not amount to a probate of the will. But we cannot assent to this pioposition. In our opinion, the order is a sufficient and valid probate of the will, if it be a will. — Jemison v. Smith, 37 Ala. 185; McGrew v. McGrew, 1 S. & P. 30. They further contend, that the paper, or evidence of the attesting witnesses, admitted to record, is not a will or valid testamentary disposition of the decedent’s estate. Upon this question we express no opinion, as the only question before us, on this record, is the validity of the probate of the supposed will; and not whether the willis valid oh its face, or should have been rejected by the court on the hearing of the application for its probate. This question would have been more properly raised on an appeal from the order of the court admitting it to record, and may be, perhaps, hereafter on’a distribution or final settlement of the estate.— Vide Johnson v. Glasscock and Wife, 2 Ala. 218, which may throw some light on these questions. Upon applications like the one before us, I am inclined to hold, that every question is closed, except the questions of the interest of the parties making the application, their right to notice of the proceedings to probate the will, whether, being entitled to notice, the same has been given according to law, and the jarisdiction of the court to make probate, if the probate court has jurisdiction of the probate of the will, and there is any other ground for attacking the probate than the want of notice, or the nul [497] lity of the order, then the parties must resort to some other mode of procedure than this, in ¡order to vacate the will or its probate. — 2 Ala. R. 218. In the case of Hill’s Heirs v. Hill’s Executor, (6 Ala. 166,) the court say: “ We apprehend it is entirely competent, in the absence of legislation to the contrary, for that (probate) court to set aside the probate of a will which it has allowed without proof, or upon insufficient proof.” But the court cite no authority, give no reason, and I know of no authority to sustain such a proposition, unless the court referred to the power of all courts of record to set aside their orders and judgments at and during the term at which they are entered. To do so afterwards, on such grounds as are stated in the passage quoted, would, in my opinion, be violative of all principles applicable to final orders and judgments of courts of record. — 2 Black. Com. 24. The probate court is one of that character, and the ecclesiastical courts were not. — 2 Black. Com. 67. No other case decided by this court has gone the length of the quotation taken from Hill’s Heirs v. Hill’s Executor, as applicable to a proceeding of this kind. That case was dismissed in this court, on the ground that the appellants were not in a situation to raise any question on the record ; and therefore I treat the quotation as mere obiter dicta. Upon this branch of the case before us the other members of the court express no opinion. The application in this case was filed more than ten years after the action of the court upon the probate of the will, and this court has never passed upon the question of the time within such an application as this must be made. And as it is not necessary to the decision of the cause, we will not pass upon it now. A reference to the following authorities and statutes may aid the solution of this question, whenever it arises hereafter. — 1 Lomax on Executors, 97-98, § 3; Swinburn on Wills, pt. 6, § 14, pl. 3 and 4; Satterthwaite v. Satterthwaite, 3 Phil. R. 1; Forneau v. Gayfere, 3 Phil. R. 405; Godol. pt. 1, c. 20, § 4; Clay’s Digest, 598, § 15; Code, § 1656; McArthur v. Carrie’s Adm’r, 32 Ala. 75, and cases there cited. The judgment of the court below must be affirmed.