Ellis v. Crawson

41 So. 942, 147 Ala. 294, 1906 Ala. LEXIS 242

• Court: Supreme Court of Alabama
• Decided: June 30, 1906
• Status: Published

Opinion

DOWDELL, J.

The primary purpose of the hill is the contest of the will of Martha Laws, deceased, which had already been admitted to probate in the probate court of Jefferson county. The complainant was a minor at the time of the filing of the bill, and she files her bill by next friend. Under the averments of the bill, the right to come into the court of chancery for the purpose of contesting the alleged will, is given her by the statute. • — Code 1896, §■§ 4298 and 4299. The fact that some of the heirs at law of the deceased are barred under the statute by lapse of time from proceeding in chancery to contest the will does not affect the right of the complainant, who is not barred, from maintaining her bill for that purpose. And the question of the extent and character of the complainant’s relief is one determinable in the final decree, and is, therefore, not properly raised by demurrer to the bill.

There is no demurrer to the bill on the ground of multifariousness, and hence that question, although argued by counsel for appellants, is one not presented by the record for consideration. There is a ground of demurrer that the bill is inconsistent and repugnant in its averments. A bill may be inconsistent and repugnant in averment without being multifarious. The alleged repugnancy is that the bill avers that the purported will was not attested by two witnesses, whereas the copy of the alleged will which is attached as an exhibit to the bill discloses that there were two subscribing witnesses. The bill avers as a fact that the will was not subscribed by two witnesses who signed as such in the presence of the testator. The copy of the will might show on its face that two witnesses regularly subscribed as such, yet it might not be true in fact.

On the contest of a will, the party contesting is not confined to any one single ground of contest. The statute (Code 1896, § 4287), in reference to the contesting of a will provides; “by filing in the court where it is offered for probate allegations in writing that the will was not duly executed, or of unsoundness of mind of the tes tator, or, of any other valid objections thereto.” Any objection which goes to the validity of the alleged will is a ground of contest. And all of the grounds of objection to the validity of the will may be averred in the contest. And the same thing may be done where the proceeding ■to contest is by a bill in chancery. Good pleading, however, requires that iu stating the grounds of the contest facts should be averred, and not conclusions. The bill in this case, as the ground of contest, avers that the execution of the alleged’ will Avas procured by fraud and misrepresentation, Avitliout averring any facts constituting the alleged fraud and misrepresentation. This is an insufficient averment, and in this respect the bill Avas open to demurrer. The rule is, where fraud is charged, facts constituting the fraud should be stated.' — Flewellen v. Crane, 58 Ala. 628; Morgan v. Morgan, 68 Ala. 80; Chamberlain v. Dorrance, 69 Ala. 40; Bell v. So. Building Loan Ass’n, 140 Ala. 377, 37 South. 237, 103 Am. St. Rep. 41; 2 Brick. Dig. 330. The ground of demurrer assailing the bill in this respect Avas well taken, and should have been sustained.

The bill avers that said Martha LaAvs Avas “mentally unable to make a will” at the time of making the alleged Avill. It may be that this may be taken as an averment of that “unsoundness of mind” which incapacitated her to make a Avill, but the bill in this respect might be improved.

Por the error pointed out, the decree will be reversed, and one here rendered sustaining the demurrr to the part of the bill as indicated above.

Reversed and rendered.

Weakley, O. J., and Haralson, and Denson, JJ., concur.