Reese v. Nolan

HARALSON, J. It appears on the face of the record in this case, that the will of the testator, Peggy Nolan, deceased, was propounded for probate in the Probate Court of Chambers county, by Richard Nolan, the husband and sole legatee and devisee of said testator ; that Julata Reese, one of the next of kin and heirs of said Peggy Nolan, filed her objections in said Probate Court to the probate of said will; that an issue was made up under the direction of the court, between said Richard Nolan as plaintiff, and the said Julata Reese, contestant, as defendant, which was tried between them in said court, which resulted in a judgment of said court in favor of the validity of said will, and the same was duly admitted to probate. ' To this contest, none of the persons, except Julata Reese, who appear here as defendants, were parties, or, so far as appears, had anything to do with the proceedings in said court to try the validity of said will. The judgment-entry recites, that “notice of the said application [to probate said will], and of the time appointed for hearing the same, has been given, in pursuance of law, to all the next of kin of said Peggy Nolan, deceased, by citations personally served, on said Julata Reese, Sarah Reese and Anna Cherry, as next of kin of. said Peggy Nolan, deceased.” The names of these persons and that of Jack Reese, together with their respective ages and residences, were given in the application of the proponent for the probate of the will; but it does not appear that the said Jack Reese ever had any notice of said application, or of the time and place for hearing the same. In Blakey v. Blakey, 33 Ala. 616, it was said “when a will is propounded for probate, the proceeding is in rem. The object of the statute which requires that notice of the application shall be given to the widow and next of kin of the testator is, that such persons may, if they choose, make themselves parties to the proceeding. When notified, they have the option to stand by passively, or take an active part on either side. But they can not be considered parties to the suit, unless they come forward, and by some affirmative act engage in the litigation. Hence, when an issue is formed in the Probate Court, between the proponent and persons contesting the will, the former is deemed the plaintiff and the latter are considered the defendants. They alone are parties to the suit.”—Leslie v. Simms, 39 Ala. 161. Until made parties they can not be heard here on appeal.—May v. Courtney, 47 Ala. 183, Jones v. Walker, 23 Ala. 448. Such persons are not concluded, however, by the decree of the Probate Court to which they were not [206] parties. The practice in such cases has long been settled in this State. Thoiigh they can not sue out an appeal without being parties, they may by petition to the Probate Court propound their interest, and, after notice to the party having an interest, have themselves made parties to such decree, so as to prosecute an appeal therefrom.—Clemens v. Patterson, 38 Ala. 721; Hall v. Hall, 47 Ala. 295; Lyons v. Hamner, 84 Ala. 197; Kumpe v. Coons, 63 Ala. 455; 1 Brick. Dig. p. 92, § 129. The party to the contest in the Probate Court, Julata Eeese, has no ground of complaint, that Jack Eeese, one of the next of kin of testator, had no notice of the application to probate the will. Its probate, upon a proper application, without notice to any of the parties entitled thereto, would not be void, but merely voidable. The failure to give such notice is merely irregularity.—Hall v. Hall, supra; Otis v. Dargan, 53 Ala. 185. The provisions of section 1982 of the Code, requiring, if it appears on the proof taken before the judge of probate that the will was- duly executed, that the testimony of the witnesses be reduced to writing by the judge, signed by the witnesses, and, with the will, recorded in a book provided for the purpose, are also directory, and a failure to comply therewith will not avoid the probate. In this case, it appears on the face of the record that the subscribing witnesses were examined on the trial of the contest before the judge, and the substance of their testimony is set out, showing the due execution of the will; and upon their evidence and the other evidence, it was ordered that the will be admitted to probate, and declared to be duly proven. as the last will and testament of said Peggy Npían, and that said will and all other papers on file relating to the proceeding be recorded. This answers substantially the requirements of that section. It follows, that the appeal must be dismissed as to all the appellants, except as to Julata Eeese, and as to her the judgment of the Probate Court, admitting said will to probate is affirmed.