
    Samuel R. Garner vs. John L. Lansford et al.
    A nuncupative will cannot be established without proof in accordance with the statute, that the decedent called upon persons then present, to take notice that the disposition then made was his will.
    And if a nuncupative will be established without proper proof, it is in the power of the probate court, at a subsequent term, on the petition of the lawful heirs of the decedent, to set such probate aside.
    The payment by an executor of a nuncupative will, in less than three years, to the legatees, is at his own peril, as the distributees have that time, within which to contest the probate.
    A payment by an administrator under an order of court, “ to pay the legal heirs of the estate,” is at the risk of the administrator, as to who those heirs are ; by a wrong judgment in that particular, the rightful distributees cannot be prejudiced.
    On a petition by distributees of an estate, filed in the probate court, to set aside the probate of a will, and obtain distribution of the estate, it seems it is not competent for the probate court to, both, set aside the will and decree the distribution : the only proper party to the petition to set aside the will, is the executor, and if it be set aside, he cannot make distribution ; and it seems it makes no difference, that the same person who was executing the will, had, previous to its probate, taken out letters of administration, and had not after its probate taken out letters testamentary.
    On appeal from the probate court of Yalabusha county; Hon. John J. Choate, probate judge.
    
      John L. Lansford and others, at the July term, 1847, of the probate court, filed their petition, in which they state that James T. Lansford died in 1844, in Yalabusha county, seized of certain personal estate. In February, 1845, his alleged nuncupa-tive will was probated.
    The, decedent left no issue; his widow had since died, and' petitioners were his heirs at law. That Samuel R. Garner, in January, 1845, administered on his estate, and was the brother of his widow; by the alleged will he left all his property to the widow; when this will was probated, there was no evidence that the deceased when he made it called on persons present to take notice that it was his will; that the will was void.
    That Garner, in March, 1847, made what he called a final settlement, showing a balance of $1858-07 in his hands.
    They make Garner as administrator and personally, and the other heirs of the widow defendants, and pray for the annulment of the will and distribution of James T. Lansford’s estate.
    The alleged will was as follows: “Last will and testament of the late James T. Lansford, deceased, verbally expressed in the following words, to wit: ‘I want my wife to have what little property I have.’ The foregoing wish was expressed by the deceased about the 24th day of November, 1844, some eight or nine days previous to his death, this 3d day of December, 1844.
    Samuel R. GaRNER.”
    The probate of the nuncupative will was as follows: “Samuel R. Garner and Lewis Garner, in open court, depose and say, that they were present when James T. Lansford made and declared the above to be his last will and testament; Lewis Garner, one of the defendants, further saith, that he had, previous to the time of the last conversation referred to above, at which Samuel R. Garner was present, in which he expressed the same to be his will and desire; the said will was made or expressed during his last sickness; said Lansford did not at this time call on them specially to bear witness to the fact; deponents further state he was of sound mind and memory.”
    When the settlement of Garner was had in March, 1847, the court directed him to pay the sum in his hands over to “the legal heirs of said estate.”
    Garner answered, denying the jurisdiction of the court over the defendants, or its right to inquire into the validity of the will or its probate, its jurisdiction over him after his final settler ment, and order to pay, which he alleged he had done to the heirs under the will.
    The probate court set aside the probate of the will, and ordered distribution of the estate among the petitioners, and Garner appealed.
    Fisher, for appellant,
    Cited Hare v. Bryant, in Chilton’s Prob. Court Law, 57.
    
      A. C. Leigh, for appellees,
    Cited Chilton, P. C. Law, 55-58, and authorities there cited; 7 Port. Rep. 21S; Chilton’s P. C. Law, 360-362.
    
      A. H. Davidson, on same side,
    Cited 4 Rand. 46; 2 Phil. 190; H. & FI. 387; 20 Johns. R. 514, 517; 1 Swift, Sys. 420; 2. Rae. Abr. 305; 2 Bl. Com. 500, 501; 1 McC. 518; 2 Murph. 350; 3 Leigh, 140.
   Mr. Justice Clayton

delivered the opinion of the court.

'In February, 1845, what purported to be a nuncupative will of James T. Lansford, was offered for probate, and was received and established in the probate court of Yalabusha county. The same person who thus offered the nuncupative will had, at the probate court next preceding, qualified as administrator of the estate, as if Lansford had died intestate. In July, 1847, John T. Lansford and others, who resided in Alabama, filed a petition to set aside the probate of the said pretended will, and to obtain distribution of the estate to them as the next of kin. The administrator in March, 1847, had made a final settlement of his account, by which the sum of $>1858 appeared to be due from him-. The court set aside the probate, and decreed distribution to be made to the petitioners.

By comparing the proof offered in support of the nuncupative will, and upon which it was established, with that required by the statute, it will be seen that it falls far short of the statutory requisitions. H. &' H. 387. It does not appear that the decedent called upon any one to take notice, that the disposition then made was his will; on the contrary, it affirmatively appears that no-such request was made, nor any of like import. "Without such proof, the disposition cannot be regarded as valid. There is nothing to show the existence of the animus testandi. Chilt. P. C.-Law, 55. The court below, therefore, did right in Setting aside the probate. See Hamberlin v. Terry, 7 How. 148; Cowden v. Dobyns, 5 S. & M. 82.

But the court went too far in the present state of the proceedings, when it directed distribution to be made to the petitioners.

If those claiming under the will had other proof in its support, it was still competent to produce it, because the first probate was not conclusive, but merely inceptive. 7 How. 148. The court, however, was the proper judge of the legality of the execution of the will, and no issue to the jury was necessary. Chilt. 202. It does not appear that there was any grant of letters testamentary, so as to revoke the original letters of administration. See H. & H. 395. The payment of the fund by Garner in less than three years, was at his own peril, as the distributees had that length of time within which to contest the probate. That payment was made without order of court, except a direction, that “he pay to the legal heirs of the estate; ” it hence presents no bar to the claim of the petitioners, if it were wrongful. If, in determining who were the legal heirs, he formed a wrong judgment, the rightful distributees are not to be prejudiced.

But upon this petition, the only proper point for decision was the validity of the probate. The proper party to this was the executor, or administrator, with the will annexed, if any-. The original administrator, in his capacity as such, ought not to have been joined. If his authority were revoked by the probate of the will, and grant of letters testamentary, then another grant of administration might become necessary.

It is, however, enough for us to say, that a decree for distribution could not have been made, until it was shown that the proper party, in his character of administrator, was before the court.

The order of the probate court, directing distribution, was erroneous. The setting aside the probate was correct. The cause will be remanded for such course as the party may adopt to obtain distribution, by having the proper representative, in his character of administrator without reference to the will, before the court. A part of the order being erroneous, it must be reversed, and the case remanded.

Order reversed and cause remanded.  