
    Knox v. Paull.
    
      Bill in Equity Contesting Probate of Will.
    
    
      1. Contest of mil in equity —Under statutory provisions regulating the probate and contest of wills (Oode, §§ 1987-89, 2000.), a person interested in the estate who did not contest the will when offered for probate, although he employed counsel, and was examined as a witness for the contestant,may contest it by bill in chancery at any time within five years.
    Appeal from the. Chancery Court of Montgomery.
    Heard before the Hon. JohN A. Foster
    The bill in this case was filed on the 18th April, 1891, by Wm. 0. Pauli and his sister, grandchildren of Mrs. Anna Ó. Knox, deceased, against William Knox and Alex. Troy, her executors, and sought to set aside the probate of her last will and testament, and to remove the administration of the estate into the Chancery Court. The will had been admitted to probate after a contest by Edward N. Knox, another grandchild, as shown by the report of the case, ante, pp. 495-504; and the bill assailed its validity on the same grounds on which it was then contested. The defendants answered the bill, and in their answer incorporated two pleas in bar, the first setting up the decree admitting the will to probate as conclusive, on the ground that complainants were served with notice of the application for probate, “and cited to appear and contest said application, if they saw fit to do so; that they were examined as witnesses by said contestant, Edward Knox, on the trial of said matter ; that they then had employed as their .counsel, in the matter of protecting their interest in said property, the same counsel now representing them, and who represented said Edward Knox; and that, by advice of counsel, they purposely abstained from making themselves nominally parties to said contest, in order that they might file their present bill, and inaugurate a new contest, in the event of the failure of the contest by said Edward Knox. The chancellor held the pleas insufficient, and bis decretal order is bere assigned as error.
    Semple & Gunter, and H. C. Tompeins, for appellant.
    Charles Wilkinson, contra.
    
   WALKEN, J.

At tbe common law, tbe probate of a will by wbicb real estate was devised was without effect upon tbe title to that species of property. Indeed, so far as real estate was concerned, there was no such thing as tbe probate of a will in tbe sense in wbicb tbe term was used in reference to wills of personal property. Tbe latter class of wills could be probated either in common form or in solemn form. A probate in common form was permitted without notice to parties in interest, and without affording them an opportunity to contest. They were not required to abide by tbe result of such a summary proceeding, if they chose to demand that tbe will be proved in solemn form, wbicb involved a citation to all persons interested in tbe estafe, so as to bind them by tbe decree rendered. Scbouler on Executors and Administrators, § 65 et seq.; Woei’Her on American Law of Administration, §§ 215 et seq.

These common-law methods and distinctions are obsolete, as our statutes have established an entirely new system of probating and contesting wills of both real and personal property. A will, whether of real or personal property, must now be proved in tbe Probate Court, before any legal rights can be asserted under it; and it may be contested in that court before it has been admitted to probate. — -Code, §§ 1976 and 1989. When it has once been probated in that court, in tbe mode prescribed by tbe statute, it can not be contested except by bill in chancery by a person interested therein, who has not already contested it. — Code, § 2000. It has been said that tbe provision for a contest by bill in chancery stands in tbe place of, and is tbe substitute for tbe proof in solemn form, as practiced in tbe Ecclesiastical Courts, when tbe will was of personal property, and of tbe action of ejectment at common law, when the will was of real estate. — Lyons v. Campbell, 88 Ala. 462 ; Kumpe v. Coons, 63 Ala. 448 ; Johnston v. Glasscock, 2 Ala. 218.

It is not to be understood' from this statement that tbe contest by bill in chancery is merely tbe old proof in solemn form in a new dress, or that tbe admission of tbe will to probate in tbe mode prescribed by tbe statute amounts only to tbe old proof in common form.. Tbe attempt to trace resemblances between tbe methods of . proving and contesting wills under tbe statute, and tbe system wbicb it superseded, suggests certain analogies wbicb are apt to mislead, as tbe proceedings under tbe two systems are widely dissimilar in important particulars. Tbe statute does not contemplate any sucb ex-pa,ode proceeding as tbe old proof in common form. Notice to tbe widow and next of kin of tbe decedent, and an opportunity for them to contest, are required whenever a will is offered for probate.' — Code, §§ 1987 to 1989. These requirements give an original probate under tbe statute features similar to those of tbe old proof in solemn form. But tbe effect of tbe probate is not the same. A proceeding for tbe probate of a will, whether at common law or under tbe statute, is in tbe nature of a proceeding in rem, so that a judgment admitting tbe instrument to probate as tbe last will and testament of tbe decedent, until it is avoided in' some mode prescribed by law, establishes, as against tbe whole world, tbe instrument as tbe law of descent and distributions governing tbe particular estate, unless it contravenes some rule of law or of public policy; and tbe judgment giving this operation to tbe instrument can not be collaterally impeached for irregularities wbicb may have intervened in tbe proceedings after tbe jurisdiction of the court attached. — Deslonde v. Darrington, 29 Ala. 92; Hall v. Hall, 47 Ala. 290; Brock v. Frank, 51 Ala. 85 ; Jordan v. Thompson, 67 Ala. 469.

When tbe will is admitted to probate, without notice to a party who is entitled to notice, tbe failure to give sucb notice is a mere irregularity, which will authorize tbe setting aside of tbe probate on proper application. — Sowell v. Sowell, 40 Ala. 243. Tbe proof in solemn form was conclusive, as a judgment inter partes, upon all persons interested in tbe estate who were summoned to see tbe proceedings. Modern Probate of Wills, 391. Tbe same conclusive effect upon tbe widow or next of kin is not, as a result of tbe service of tbe statutory notice upon them, given to tbe judgment admitting tbe instrument to probate. It has long been settled that tbe proceeding under tbe statute for tbe probate of a will does not assume tbe form, and is not a suit inter partes as to tbe heirs or distributees, except as to those who come forward and have themselves made parties in tbe manner provided by law. — ^-Kumpe v. Coons, 63 Ala. 455; Allen v. Prater, 35 Ala. 169. Those who were served with notice of tbe proceeding, but who did not contest tbe will in tbe Probate Court, are not bound by tbe judgment admitting tbe instrument to probate, as they would be by an ordinary judgment or decree rendered in a proceeding to wbicb tbey were made parties by due service of process. Why ? Because the statute provides in their favor a special mode of avoiding the effect of the judgment of the Probate Court admitting the instrument to probate. This is the provision: “ Any person interested in any will, who has not contested the same under the provisions of this article, may, at any time within five years after the admission of such will to probate in this State, contest the validity of the same by bill in chancery, in the district in which such will was probated, or in the district in which a material' defendant resides.” — Code, § 2000.

This statute has existed in this State since the year 1806, having undergone some change in phraseology, but not in meaning.— Watson v. Turner, 89 Ala. 220; Aiken’s Dig. 450. It seems that the original statute had been in force for a number of years before any provision was made, in the ordinary proceeding for the probate of the will, for notice to parties in interest. The earliest statute we have found which made provision for such notice was enacted in 1821. Toulmin’s Digest, 887. It is urged in argument, that the provision in the statute of 1806 for a contest by bill in chancery, having been enacted at a time when no notice of the application for probate was required, was intended to afford a remedy for those who had had no notice of the original proceeding for the probate of the will; and that the subsequent statute requiring notice to parties interested in such proceeding did not extend the scope of the remedy by bill in chancery, but still left that remedy for the benefit of those only who had failed to be notified of the proceeding for a probate. This contention involves such a restriction of the scope of a contest by bill in chancery as would make it merely a new method of taking advantage of the failure to give notice to a party who was entitled to notice when the will was admitted to probate. As has been already stated, for such a mere irregularity, in such. a case, the common law authorized the court granting the probate to set it aside on proper application. — Sowell v. Sowell, supra. The language of the statute does not indicate that the contest of a will by bill in chancery must be based primarily upon a mere irregularity in the original probate. When the statutes were first codified, both the provision for notice to parties in interest in the probate proceedings, and that for a contest of the will by bill in chancery, had long been in force. In view of the fact that there was already another remedy for setting aside a probate, in favor of one who had not received tbe notice to which he was entitled, it is to be presumed that, if it had been the intention to make the right to contest the will by bill in chancery dependent upon the existence of such mere irregularity in the probate proceeding, such intention would have been manifested in the language of the statute. No such intention is disclosed by the language used. The provision that “any person interested in any will, who has not contested the same under the provisions of this article, may . . . contest the same by bill in chancery,” standing side by side with a provision for notice to all persons interested in the estate, of any application for the probate of a will, clearly implies that the right to contest in chancery is not cut off by the probate of the instrument after notice to the party subsequently desiring to contest. . It is perfectly plain that the .statutory system of probating and contesting wills contemplates that the widow, and next of kin shall have notice of any application for the probate of a. will of the decedent, and that, before any instrument is admitted to probate ,as a last will and testament, all persons interested therein, or in the estate of the decedent if he died intestate, should have an opportunity to contest its validity in the Probate Court. We think it is equally plain, that it was the intention of the statute to afford the further opportunity of contesting the will in the Chancery Court within five years, to any person interested in the will, who either did not have, or did not avail himself of the opportunity to contest it in the Probate Court.

Good reasons may be suggested for affording this additional opportunity to contest the validity of a will which has been regularly admitted to probate after due notice to all parties in interest. The application to prove the will usually follows close upon the death of the testator. The application comes on for hearing as soon as the short prescribed terms of notice have expired. It must frequently happen that persons interested in the proceeding are wholly unable, while it is pending, to inform themselves as to the instrument offered for probate, or of the circumstances attending its execution. Pacts affecting its validity may be developed afterwards, and the failure to discover them, or to obtain the evidence to prove them, may have been without the fault or any lack of diligence on the part of those interested in making a contest. In view of such contingencies, there is manifest propriety and justice in allowing a reasonable time after a formal and regular probate, for a contest of the validity of the will by one who did not make a contest in tbe Probate. Court. We have no doubt tbat tbis was tbe intention of tbe statute.

Tbe appellees were not nominal parties to tbe contest inaugurated in tbe Probate Court. It is averred in plea number one tbat tbey were examined as witnesses on tbe trial of tbat contest, and tbat tbey bad then employed as tbeir counsel to protect tbeir interest in said matter tbe same counsel wbo now represents them in tbis case, and' wbo represents tbe contestant in tbe other case, and tbat tbey purposely by advice of said counsel abstained from making themselves nominally parties to said contest, tbat they might file tbeir present bill and inaugurate a new contest. Conceding tbat the appelles could not maintain tbeir present bill if they so aided and abetted tbe contestant in tbe other case as to become jointly responsible with him for what was done in bis name alone, but really for tbeir common benefit; yet tbe averments of tbe plea do not sufficiently show that such was tbe fact.- — Donegan v. Wade, 70 Ala. 501.

The conclusion is, tbat tbe chancellor was correct in adjudging tbe first plea to be insufficient. Tbe ruling on tbe second plea is not insisted on in tbe argument for tbe appellants.

Affirmed.  