Smith v. Rice

GOODWYN, Justice. This is an appeal by Curtis Smith from a. decree of the probate court of Jefferson County, Alabama, granting letters of administration cum testamento annexo on the estate of Sallie W. Davis, deceased, to Roger F. Rice, appellee. [239] Sallie W. Davis departed this life in Jefferson County on December 17, 1953, leaving a last will and testament naming her adopted son, Jerre Lawrence Davis, a minor, as distributee of all her property, with the exception of one piece of furniture, and appointing the appellant, Curtis Smith, as executor of her will, without bond, and also naming him as guardian of Jerre Lawrence Davis during his minority. On December 28, 1953, one Chism, stepfather of Sallie W. Davis, filed a petition in the probate court of Jefferson County for probate of the will. On January 4, 1954, Roger F. Rice, having been appointed as guardian of Jerre Lawrence Davis, filed, in his capacity as such guardian, a petition in the probate court objecting to the appointment of Curtis Smith as executor on the ground that his interest was adverse to that of the minor and praying that he (Rice) be appointed administrator cum testamento annexo. This petition was amended on March 8th, the amendment alleging Rice to be a fit and proper person to serve as such administrator, alleging certain deeds to Smith’s wife and stepmother and a power of attorney to Smith’s wife to have been obtained from Sallie W. Davis through fraud, and further alleging Curtis Smith to be unfit to be appointed as executor because of such fraud. On January 31, 1954, Smith also filed in the same court a petition for probate of the will. On March 4, 1954, a decree was rendered admitting the will to probate on Chism’s petition. No reference was made to Smith’s petition for probate of the will nor to the prayer in Rice’s petition seeking to have someone other than Smith appoint-er to administer the estate. That decree was the basis of the appeal in Smith v. Chism, 262 Ala. 417, 79 So.2d 45. We are not concerned here with any question about the probate of the will. On March 4, 1954, Smith filed a petition to have himself appointed executor under the will. He also filed an answer to Rice’s petition as guardian, above noted, denying that the deeds and power of attorney were fraudulent, or that either he or his wife was guilty of fraud, and disclaiming any personal interest in any of the property belonging to the estate. On March 15, 1954, the probate court, after the taking of testimony ore tenus, rendered a decree granting Rice’s petition and ordering letters of administration cum testamento annexo issued to him. Said decree, from which this appeal is taken, is as follows: “Sallie W. Davis, Sometimes Known As Sallie B. Davis, Deceased, Estate Of, In Re: Petitions For Appointment Of Executor, Etc. Case No. 30458 Probate Court March 15, 1954. “This matter coming on to be beard on the 4th day of March, 1954, upon the petition heretofore filed in this court by Roger F. Rice, as guardian of the estate of Jerre Lawrence Davis, a minor, by his attorneys, Beddow and Jones, for the appointment of Roger F. Rice as administrator cum testamento annexo and objecting to the appointment of Curtis Smith as executor under the will of Sallie W. Davis, sometimes known as Sallie B. Davis, deceased, and the petition of Curtis Smith praying that Letters Testamentary without bond upon said will of Sallie W. Davis, deceased, be issued to him; whereupon Curtis Smith did come and file his answer to the petition of Roger F. Rice; and on the 8th day of March, 1954, Roger F. Rice, as guardian of the estate of said Jerre Lawrence Davis, a minor, did come and file an amendment to his petition, invoking the equity jurisdiction of this court, objecting to the appointment of Curtis Smith as executor under the will of Sallie Wr. Davis, deceased, and praying for the appointment of Roger F. Rice as administrator cum testamento annexo of said estate; and, upon consideration thereof, it was ordered by the court that said amendment be allowed; 'and on the 10th day of March, 1954, Curtis Smith did come and file his amendment to his answer to petition of said guardian which, upon consideration thereof, it was [240] ordered by the court that amendment to said answer be allowed; and on the 12th day of March, 1954, Curtis Smith did come and file his second amendment to the answer to the petition, as amended, of said guardian, and, upon consideration thereof, the court did allow said second amendment to the answer of said petition, as amended; “And the court, after hearing all the evidence submitted and the argument of counsel, did take said matter under advisement on the 12th day of March, 1954. “Now, on this the 15th day of March, 1954, after due consideration, the court is of the opinion the prayer of said petition of Roger F. Rice, as guardian of the estate of Jerre Lawrence Davis, a minor, should be granted. It is, therefore, “Ordered, Adjudged And Decreed by the court that the prayer of said petition, as amended, of Roger F. Rice, as guardian of the estate of Jerre Lawrence David [sic], a minor, be and the same is hereby granted and Letters of Administration Cum Testamento Annexo upon the estate of Sallie W. Davis, sometimes known as Sallie B. Davis, deceased, are ordered issued to Roger F. Rice, but it is further ordered that no letters issue for thirty days pending right of appeal.” This cause was submitted on appellee’s motions to dismiss the appeal, to strike the transcript of the testimony, the “alleged bill of exceptions”, the “alleged bill of exceptions, as amended”, or, in the alter7 native, for a writ of certiorari for diminution of the record, and on the merits. Motion to Dismiss the Appeal. The grounds of the motion to dismiss insisted on here are: First, that the decree of March 15th will not support an appeal by Curtis Smith, and, second, that Smith is estopped to prosecute this appeal because he took a position in the case of Smith v. Chism, supra, which is inconsistent with his position on this appeal. With respect to the first ground, appellee insists that Smith has no right to appeal since the probate court took no action on his petition for appointment as executor but acted only on the petition of appellee, and further, that Smith was not a party to appellee’s petition so as to give him the right of appeal from said decree. We do not think the motion to dismiss is well taken. From the record before us it seems clear that the decree appealed from was not rendered in an ex parte proceeding. On the contrary, both appellant and appellee filed pleadings and amendments, thereto, both of said parties were represented by counsel, and both called, examined and cross-examined witnesses. There is-every indication that the parties considered themselves engaged in an adversary proceeding. Although the court did not expressly deny Smith’s petition, it seems clear that the matter was being heard on Smith’s, petition as well as that of Rice. In fact,, the decree itself recites that the' hearing was not only upon Rice’s petition but also-upon “the petition of Curtis Smith praying that Letters Testamentary without bond upon said will of Sallie W. Davis, deceased, be issued to him”. The claim that Smith was entitled to administer the estate in preference to Rice was the substantial matter in Controversy. The contest was to decide these conflicting claims, the disposition of the matter depending entirely upon the recognition of one or the other of them. We think the decree, in appointing Rice, effectually denied Smith’s petition, and that Smith’s appeal from that decree is properly here. Code 1940, Tit. 7, § 776, Sub-div. 2. We here note what was said in Smith v. Chism, supra [262 Ala. 417, 79 So.2d 46]: “ * * * Unlike the situation presented in the case of Griffin v. Milligan, 177 Ala. 57, 58 So. 257, there are adversary parties to the instant appeal.” The other ground for dismissal which is urged upon us is that Smith has241 assumed an inconsistent position to the prejudice of the adverse party and is, therefore, estopped from prosecuting the appeal. The principle sought to be invoked is “That a party is estopped to make a defense or objection inconsistent with a position previously asserted by him, which position was successfully maintained”, so as “ ‘to prevent inconsistency and fraud resulting in injustice.’ ” Fiscus v. Young, 243 Ala. 39, 41, 8 So.2d 514, 515. Rice contends that Smith, in Smith v. Chism, supra, took an appeal from the decree admitting the will to probate while here asserting that the will was properly admitted to probate. From a reading of the opinion in the Chism case, it is quite apparent that the position there taken by Smith is not inconsistent with his position here. As stated in that case: “Smith concedes the validity of the will, admits that it should have been probated, and as shown above filed a petition to attain that end, which was before the probate court at the time the decree appealed from was rendered.” In essence, Smith’s position in both cases is the same. He contends he should be appointed as executor of the will in accordance with the testator’s directions and attempts to accomplish that end in both proceedings. We find no such inconsistency as will work an estoppel.