McCann v. Ellis

MAYFIELD, J. This is a statutory action in the nature of ejectment, by appellant against appellees. The trial was had by consent without a jury. It was tried by the judge on an agreed statement of the facts, and judgment rendered thereon by the trial court for the defendants, from which judgment this appeal is prosecuted. The reporter will set out in full the agreed statement of facts. One question of law only is involved on this appeal, and upon it solely depend the rights of the litigants as to the subject-matter of the suit. That question is: What is the legal effect of a judgment or decree had under section 6207 et seq. of the Code of 1907, which sets aside and annuls the former probate of the will and declares it not the will of the decedent, and then proceeds to declare and determine the rights of the heirs or devisees to the estate of the decedent; proceedings being had at the suit of only one of the heirs or proposed devisees? That part of the decree material to this question is as follows: — 68 — • “Third. That the said paper writing purporting to be the last will and testament of Martha A. Laws, deceased, was never executed by her, as required by the laws of this state, and therefore did not operate as her last will and testament. “Fourth. That, therefore, the said complainant is entitled to have the probate of said paper writing as the last will.and testament of the said Martha A. Laws, deceased, vacated and set aside, so far as the same affects her undivided one-third interest in said lands, so owned by the said Martha A. Laws, at her death, and that to that extent, and to that extent only, the said probate be and the same is hereby vacated and set aside; but as to the other heirs of the said Martha. A. Laws the said probate is not vacated, nor set aside, they being adults at the time of the death of the said Martha A. Laws, and having failed to contest the probate of said will within the time allowed by law, and the said defendants claiming under said will.” The concrete question is this: Is the fourth subdivision of the decree valid and binding, in so far as it attempts to set aside and annul the probate of the will in part and allow it to stand in part? That is, can the decree vacate the probate so far as it affects the interest of one heir, the complainant, and allow it to stand as to the other heirs ? It will be observed that there is no attempt to annul or declare void any one part or item of the will, to the exclusion of the other parts. The attempt is to give a limited effect to the probate of the whole will; that is, to decree that it was probated, and was, therefore, the will, as to some of the devisees, but not as to others. This we think cannot be done; but, if at all, in any manner or proceeding, certainly not under the bill and proceeding in which the .decree in question was rendered. — 69 — It has been uniformly ruled, by all English and American cases which we have examined that proceedings to probate or to set aside the probate of wills are proceedings in rem and not in personam; that such proceedings are exclusively to determine the status of the res, and not the rights of the parties. Judgments or decrees as to the status of the res, in proceedings strictly in rem, are conclusive against all.the world as to that status; while such judgments as to the rights of parties, whatever may be the point adjudicated, not being as to the status, are only conclusive between the parties or privies to the suit.' The law is clearly and elegantly stated in the following English cases: Castrique v. Irmie, No. 14, “Conflict of Laws,” 5 B. C. 899; Ballantyne v. Mackinnon (July 30, 1896), 65 L. J. Q. B. 616-621; Allen v. Dundes (1789) 3 T. R. 125, 1 R. R. 666; Allen v. McPherson (1845) 1 H. L. Cas. 191; Milhurst v. Milton (C. A. 1876) 3 Ch. D. 210, 214. The English case nearest in point is Concha v. Concha, 11 App. Cas. 541-572 (s. c. 56 L. J. Ch. 257, 55 L. T. 522, 35 W. R. 477) ; same case reported and annotated, 11 Eng. Rui. Cas. 22 et seq. This last case is instructive, for the reason that it declares to what- extent and for what purposes decrees probating wills are conclusive, and for what not, though the points may have been attempted to be adjudicated. The following American authorities are to the same point: Sly v. Hunt, 159 Mass. 151, 34 N. E. 187, 21 L. R. A. 680, s. c. 38 Am. St. Rep. 403; Caujolle v. Ferrie, 13 Wall. 465, 20 L. Ed. 507. Many cases may be found collected in note at pages 45, 46, 11 Eng. Rui. Cas. See, also, Bigelow on Estoppel, 154; 2 Black on Judg. 799; Van Fleet, Col. Att. 548. Our own cases, however, we think are in point, and' are decisive of the question adversely to the decision and — 70 — judgment of the lower court. It was ruled in the case of Hunt v. Acre, 28 Ala. 593, 594, that jurisdiction was conferred upon the prohate courts to determine, in the first instance, the question of wall or no will on an application to probate, and therefore to allow or. disallow probate. If disallowed, the decree was final and conclusive until reversed or set aside in the proper mode. If allowed, then the statute authorized any person interested, or certain ones designated, to contest by bill in chancery at any time within five years; that such contest was in the nature of a proceeding in rem, and that decree was binding and conclusive as to all thé world, as to the question of will or no will, the status of the res; that such decree was so binding upon persons who were not parties to the proceeding as to the question of will or no will. If those who are not parties to such decree are to be concluded by the status of the res as found, surely they are entitled to such benefits as naturally flow or result from such status. Such is the condition of the plaintiff below (appellant here). Speaking to the same subject as to proceedings to probate or contest wills, this court, by Somerville, J., in the case of Martin v. King, 72 Ala. 360, said: “A judgment in rem has, among many other definitions, been said to be ‘an adjudication upon the status of some particular subject-matter, by a tribunal having competent authority for that purpose,’ or, in other words, ‘a solemn declaration, proceeding from an accredited quarter, concerning the status of the thing adjudicated upon, which very declaration operates accordingly upon the status of the thing adjudicated upon, and, ipso facto, renders it such as it is thereby declared to be.’- — 2 Smith’s Lead. Cases, 585, 586; Freeman, Judg. § 606.” In fact, the authorities on the subject, as shown by brief of counsel for appellant, are too numerous to be cited in an opinion. — 71 — It is argued by appellee — and this, is evidently tbe theory upon which the trial court acted — that as the proceeding in the chancery court to contest the will was one in rem, and as the court had jurisdiction of the subject-matter, it could, should, and did determine the rights of all parties concerned in the estate attempted to be devised by the will, and that therefore the interest which the plaintiff would have taken in the estate of her ancestor, had she died intestate, passed under the will to the defendants or those through whom they claim title, though it was decreed that there was no will so far as the rights of one heir, the complainant, were concerned; in other words, that the court could and did properly decree, on the complainant’s bill to contest the probate of the will, that as to this plaintiff there was a will, but as to complainant, who alone contested, there was no will, and that the probate thereof as to her was set aside, but allowed to stand as to this plaintiff. This argument is as unsound as it is specious. The fallacy lies in the fact that the chancery court, under the bill in question, and under the issues raised, together with those which could or should have been properly •raised, had no power or right to determine, or to attempt to determine, who took the estate of the decedent, and whether they took by devise or inheritance. The only question really adjudicated, or that could or should have been adjudicated, was the question: “Will or no will.” This was determined in the negative. The court, however, went, or attempted to go, further, and limited this status only to the rights of complainant. This the court could not do, because it was not within the issues raised by the pleadings. It probably could not have been done, had it been so attempted; but it was not so attempted. So much of the decree as attempted to limit or confine the status of the res to the rights of the complainant alone was wholly gratuitous and unavailing. — 72 — The following principle of law is well settled, both in England and in America, and it is conclusive of the question involved in this case: A judgment in rem of a court of competent jurisdiction is conclusive against all the world, as to all matters properly adjudged and to all necessary consequences thereof; but a mere finding of the court in such proceedings as to a fact which is not essential or necessary to the determination of the question as to whether the judgment in rem ought to he pronounced is not, although contained in such judgment entry, conclusive as a judgment in rem upon the facts so found. Such judgments are conclusive only of such matters as are necessary to sustain the judgment. — Burlen v. Shannon, 99 Mass. 200, 96 Am. Dec. 733; Maley v. Shattuck, 3 Cranch. 458, 2 L. Ed. 498; Ford v. Ford, 68 Ala. 141; Black on Judg. § 795; 65 L. J. Q. B. (Eng.) 621. The judgment is reversed, and a judgment will be here rendered for plaintiff, in accordance with the agreed statement of facts, as to the lands and damages. Reversed and rendered. Dowdell, C. J., and Simpson and McClellan, JJ., concur.