Hardy v. Hardy's Heirs

26 Ala. 524

Opinion

GrOLDTHWAITE, J.

—The act of 1806 (Clay’s Dig. 598, § 15) provides, that when any will has been admitted to probate, it may be contested by any person interested, by bill in chancery, within five years thereafter, and that unless so contested, it shall be conclusive and binding upon all parties,— extending, however, to infants, married women, lunatics, and persons absent from the State, the right of contestation to five years after the removal of their respective disabilities. Under this statute, the probate is conclusive, unless the will is contested in the mode and within the time fixed.

In the present case, the application is to' establish a paper which, if regarded as a will, is inconsistent with the provisions of the one which had previously been admitted to probate ; and as it is of later execution, it must operate as a revocation of the former, fro tanto. To this extent, therefore, it impeaches the validity of the will which had been established ; and if admitted to probate, tbe consequence would be, that there would be two wills established inconsistent in their provisions. It was to avoid such consequences, that the statute to which we have referred was enacted. The paper offered for probate impeaches in part the will already admitted to probate, and this, as we have seen, can only be done in the mode and within the time prescribed by the act. The present proceeding is not in that mode; neither is it commenced within the time prescribed, as the record shows that the application was not made until more than five years after the probate of the first will, which disposed of all the property of the intestate, and the applicant did not bring himself within the saving clause of the statute.

The court, therefore, did not err, on this state of facts, in deciding against the application.

Judgment affirmed.