Alabama. A bill was filed by the heirs at law of R.T., stating,
that R.T., being then a citizen of Georgia, in the year 1819, made
a conditional will, in which he recites, "being about to take a
long journey, and knowing the uncertainty of life, he deemed it
advisable to make a will." The will was set out in the bill, and
was executed before three witnesses; and devises all his real and
personal estate to his brother, B.T., after making a small
provision for his sister and her son. R.T. performed the journey,
and returned
safe. After the decease in Alabama of R.T., his brother, B.T.,
carried the supposed will to the County Court in Dallas County,
Alabama, to which the intestate and his brother had removed, and
where they had purchased and held jointly considerable real and
personal estate, and upon proof of the handwriting of two of the
subscribing witnesses who were dead, the other witness living in
the State of Georgia, the will was admitted to probate. The bill
alleges the probate to be void, prays that the will may be
cancelled and the estate distributed according to the laws of
Alabama.
Held: that this was, not a conditional will. The
instrument's taking effect as a will is not made to depend upon the
event of the return or not of the testator from his journey. There
is therefore no color for annulling the will that it was
conditional.
In the case of
Armstrong v.
Lear, 12 Wheat. 175, 6 Cond. 500, it was said by
this Court that no other evidence of there being a will can be
received by the court than such as would be sufficient in all other
cases where titles are derived under a will, and nothing but the
probate or letters of administration with the will annexed are
legal evidence in all questions respecting personalty. But the rule
there laid down does not apply to this case. Here, the complainant
set up the will as the source of his title, and was bound to prove
it, which must be done by the probate, which must be set forth in
the bill. In this case, the complainant had set forth a copy of the
instrument in his bill, alleging it was conditional, and therefore
not valid. The defendant was under no obligation to produce any
probate. Everything, by the complainant's own showing, was before
the court.
An original bill will not be sustained on the allegation that
the probate of the will is void. If any error was committed by the
court of Dallas County in admitting the will to probate, it should
have been corrected by an appeal to the next term of the Supreme
Court, in chancery or in the District of Washington, to the
superior court of that district, according to the law of
Alabama.
The appellees, citizens of the State of Georgia, filed their
bill in the District Court of the United States for the Southern
District
Page 34 U. S. 175
of Alabama against the appellant, Mason Gilliam, and John
Gilliam, her son, stating that they and the defendants were the
heirs at law of Richard Tarver, who died in the year 1827; that the
deceased in 1819 made a will, which they assert to be a conditional
will and which they exhibit, which they also state was not
considered as a will by Richard Tarver at the time of his death.
That the principal devisee in that will, Benjamin Tarver, one of
the defendants, has proved the will in Dallas County by proving the
handwriting of two of the subscribing witnesses, who were dead, the
other being out of the state, and that the probate thereof is void;
that the said Benjamin has taken possession of all the deceased's
lands and effects, and they pray an account of the real and
personal estate of the testator, and the time at which it was
acquired, and "that the will may be cancelled, and the property of
the deceased be distributed according to the laws of Alabama."
The copy of the will and of the probate annexed to the will were
as follows.
"Will. In the name of God, amen! Being about to travel a
considerable distance and knowing the uncertainty of life, think it
advisable to make some disposition of my estate, do make this my
last will and testament. It is my will that my brother Benjamin J.
Tarver should have all my estate, both real and personal, except a
competent maintenance for my sister Gilliam and her son John
Gilliam, and further he should give the said John Gilliam a liberal
education, and then carry him through the study of law or physic,
as he may think best, and at the age of twenty-one give him, the
said John Gilliam, twenty-five hundred dollars in money or
property."
"Given under my hand this 3 May, 1819."
"RICHARD TARVER [L.S.]"
"Test: W. Lyman, William Booker, William H. Carter"
"Witnesses: D. C. Patterson, William F. Hay"
"Probate of will. Orphan's Court, November term, 1827. State of
Alabama, Dallas County. Personally appeared before me, James
Suffold, judge of the county and orphan's court in the county
aforesaid, Joseph Scott, who being duly sworn, saith that he knows
the hand writing of William Booker
Page 34 U. S. 176
and David C. Patterson, who signed their names as witnesses to
the within will, that he has seen them write; that he believes the
signatures appearing thereto was their, and each of their proper
acts and signatures; that to his certain knowledge, both Booker and
David C. Patterson are now dead."
"JOSEPH SCOTT"
"Sworn to, and subscribed before me, this 12 November,
1827."
"JAMES SUFFOLD"
"13 November, H. VANDYKE, Clerk, recorded"
The answers of the defendant in the district court declare that
Richard Tarver made his last will and testament, as stated in the
complainant's bill, but deny that there was a condition annexed
thereto. The defendant states that the testator and himself lived
together and employed their capital together and for their joint
benefit, with an express agreement that the survivor should have
the whole, which was the joint property of both. At the time the
testator executed the will referred to in the bill of the
complainant, he executed a will substantially similar in all
respects to that executed by Richard Tarver. The answers assert
that the probate of the will is in full form and was regular, and
that there is no sufficient cause shown in the bill for the
exercise of equitable powers by the court.
The district court gave a decree in favor of the complainants on
the ground that the will of Richard Tarver had not been admitted to
probate by the proper orphan's court, and of course that it did not
appear to the court that he made a will. And also that this
proceeding was instituted to set aside the will of Richard Tarver,
and no title which the respondent might have to the property of
Richard Tarver can be set up in the case except such as may be
derived from the will. The defendants appealed to this Court.
MR. JUSTICE THOMPSON delivered the opinion of the Court.
Page 34 U. S. 177
The pleadings are very inartificially drawn, and do not probably
present the case in such a manner as to enable the Court to dispose
of all the questions intended to be brought under
consideration.
The bill sets out that Richard Tarver, late of the County of
Dallas and State of Alabama, departed this life in that county in
the year 1827, leaving at the time of his death a large real and
personal estate and leaving three sisters and the defendant,
Benjamin Tarver, his sole heirs at law. That the said Richard
Tarver, in the year 1819, being a citizen of Georgia and possessed
of a large estate in lands, made a conditional will in which he
recites that being about to take a long journey, and knowing the
uncertainty of life, he deemed it advisable to make a will, and
thereby declared that he left all his estate, real and personal, to
his brother Benjamin Tarver. And making some small provision for
his sister Mason Gilliam and her son John, all which will more
fully appear by a copy of the supposed will attached to the bill,
and which is prayed to be considered as a part thereof. The bill
alleges that the said Richard Tarver performed the journey and
returned safe. Some statements are then made with respect to the
property of the deceased, and the bill alleges that he and the
defendant, Benjamin J. Tarver, lived together, and employed their
capital of every description jointly. That Benjamin, on the decease
of his brother, took possession of all his estate. That the said
supposed will purports to be attested by sundry persons as
witnesses, the survivor of whom resides in the State of Georgia.
That the said Benjamin carried the supposed will before the County
Court of Dallas County, and upon the proof of the handwriting of
two of the subscribing witnesses, who are dead, the other still
living in the State of Georgia, the will was admitted to probate,
and the bill alleges that such probate is void. The bill then prays
that the will may be cancelled and the estate distributed according
to the laws of Alabama, and that the defendant may set forth the
full amount of the property of the said Richard, not only what he
had at the time of his death, but what he had at the date of the
supposed will, describing the property at each of these times
particularly. An amended bill was afterwards filed stating that the
defendant was attempting to set up said will and charging that it
was conditional in its inception
Page 34 U. S. 178
and that the condition on which it was to take effect has not
happened.
Several answers were filed in consequence of exceptions taken
and allowed by the court. These answers contain much matter not
responsive to the bill and which was not properly before the court.
But it is denied that there was any condition annexed to the will
other than is shown by the will itself. The defendant admits that
he procured the will to be proved and admitted to record in the
Orphan's Court of Dallas County. And alleges that the probate of
said will remains in full force, not revoked or in any manner set
aside, and which he is informed and believes is in all respects
legal. And prays the benefit of the answers as a demurrer to the
bill. The court decreed a distribution of the estate among the
legal representatives of the deceased, and the cause comes here for
review.
The questions put in issue by the pleadings are:
1. Whether Richard Tarver, at his decease, left the will in
question as a valid and operative will.
2. Whether such will was duly admitted to record in Dallas
County.
It is a little remarkable that the final decree in the cause
does not touch either of these questions put in issue by the
pleadings, but proceeds at once on the report of the master to make
distribution of the estate among the heirs at law of the deceased.
The judge in his opinion does notice these questions, but does not
decide whether the will was conditional and had become inoperative
by reason that the contingency on which it was to take effect had
not happened, but puts his decision upon the ground that the
defendant was bound to establish the will, and that this could be
done in no other way than by the production of a valid probate. He
observes that this proceeding is instituted to set aside the will
of Richard Tarver, and no title which the respondent may have to
the property of his deceased brother can be set up in this suit
except such as may be derived from the will. That if the
complainants had even admitted the existence of the will of Richard
Tarver, yet it would be indispensable to the title set up by the
respondents through that will to show that it had been duly
admitted to probate by the proper orphan's court. The judge then
goes into an examination whether the will
Page 34 U. S. 179
had been duly admitted to probate, and coming to the conclusion
that it had not, he declares that it does not therefore appear to
this court that Richard Tarver made any will. He seems to rest his
opinion upon the decision of this Court in the case of
Armstrong v.
Lear, 12 Wheat. 175, where it is said that we
cannot receive any other evidence of there being a will than such
as would be sufficient in all other cases where titles are derived
under a will, and nothing but the probate or letters of
administration with the will annexed are legal evidence of the will
in all questions respecting personalty. But the rule as there laid
down does not apply to this case. There, the complainant set up the
will as the source of his title and was bound to prove it, which
must be done, said the Court, by the probate, which must be set
forth in the bill. But in the present case the inquiry was whether
the instrument in question was a valid will or not, and the
complainant had set out a copy of that instrument for the purpose
of showing that it was not a valid subsisting will because it
appeared upon the face of it to be conditional, and then to show
that such condition or contingency had never happened. The
defendant was not the actor seeking to enforce any right under the
will. And he could be under no obligation to produce any probate.
The complainant having set out the will, everything by his own
showing was before the court that was necessary to present the
question which was to be decided. There was no evidence impeaching
this will except what appears on the face of it and is rested
entirely on the introductory part of it. It begins in this
manner.
"Being about to travel a considerable distance, and knowing the
uncertainty of life, think it advisable to make some disposition of
my estate, do make this my last will and testament,"
&c.
And it is contended that the condition upon which the instrument
was to take effect as a will was his dying on the journey and not
returning home again. But such is a very strained construction of
the instrument, and by no means warranted. It is no condition, but
only assigning the reason why he made his will at that time. But
the instrument's taking effect as a will is not made at all to
depend upon the event of his return or not from his journey. There
is no color, therefore, for annulling this will on the ground that
it was conditional.
Page 34 U. S. 180
And the bill cannot be sustained on the allegation that the
probate is void. An original bill will not lie for this purpose. If
any error was committed in admitting the will to probate, it should
have been corrected by appeal. This is provided for by the law of
Alabama, which makes the county court in each county an orphan's
court for taking the probate of wills, &c., and declares that
if any person shall be aggrieved by a definitive sentence or
judgment or final decree of the said orphan's court, he may appeal
therefrom to the next term of the supreme court in chancery, or in
the district of Washington, to the superior court of that district.
The law also provides that any person interested in such will may,
within five years from the time of the first probate thereof, file
a bill in chancery to contest the validity of the same, and the
court of chancery may thereupon direct an issue or issues in fact,
to be tried by a jury, as in other cases. But that after the
expiration of five years, the original probate of any will shall be
conclusive and binding upon all parties concerned, with the usual
savings to infants,
femes covert, &c., Toulmin's Dig.
887. We think nothing has been shown to impeach or invalidate this
will, and that the bill cannot be sustained for the purpose of
avoiding the probate. That should have been done, if at all, by an
appeal according to the provisions of the law of Alabama. We do not
enter at all into an inquiry as to the operation of this will with
respect to the property that will pass by it, nor touching the
right by survivorship, as set up by the defendant in the court
below. These questions are not properly before us upon the
pleadings in the cause or presented in such a manner as to enable
us satisfactorily to dispose of those questions. We think,
therefore, that the decree of the court below must be reversed, and
the bill dismissed without prejudice, so as not to preclude the
appellees from asserting their right to any part of the property,
if any such there be, which does not pass under the will of Richard
Tarver.
The decree of the district court is accordingly reversed and
the bill dismissed without prejudice.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the
Page 34 U. S. 181
Southern District of Alabama and was argued by counsel, on
consideration whereof it is ordered and decreed by this Court that
the decree of the said district court in this cause be and the same
is hereby reversed and annulled, and that this cause be and the
same is hereby remanded to the said district court with directions
to that court to dismiss the bill of the complainants without
prejudice.
