Temple v. Hammock

Campbell, J.,

delivered the opinion-of the court.

Plaintiffs claimed the land sued for as heirs of Bartlett Pord, deceased. Defendant claimed from the same source, net as heir,-but as purchaser of the land after the death of' Ford. Plaintiffs are children of said Ford, who died in 1858, leaving his last will, "by which he directed that his wife, Bebecca Ann Ford, should keep all his estate in her possession during her widowhood, or until his oldest child should attain to the age of twenty-one-years, and on the occm’rence-of either of these events the estate was to be equally divided between his said widow and his children, and the widow was designated as guardian of such of said children as were minors. Bebecca Ann Ford and Newton L. Huff were named executors-of the will, which was probated in Franklin county, in the court of probate, in November, 1858, and letters testamentary granted to said executors, who qualified as such. Afterwards-Bebecca Ann Ford married Paschal Seal, and she and Seal became guardians of Ford’s children. In November, A. D. 1859, Newton L. Huff, one of the executors aforesaid, petitioned said court of probate for a division of the land of his testator among the devisees, the widow of said testator having married. A decree appointing commissioners to make division-was made at December term, 1859, and report of their division-was made to the court and confirmed by it at its February term, 1860. In December, 1859, Paschal Seal and Bebecca. Ann Seal, guardians .as aforesaid, petitioned said probate* *364 court for an order to sell the land of their said wards, on the ground that it would be for the interest of their said wards 'that said real estate should be sold. The petition prayed pro•cess for said minors, and for John Cain and William Cairi, of Amite county, and Mary Jones, of Franklin county, the nearest relatives of said minors residing in this state, to appear at the January term, A. D. 1860, of said court, to show cause against the sale of said real estate. Citation for the’ wards and Mary Jones was issued to Franklin county, and returned “ executed, December 27, 1859.” The record does not show any citation to Amite county for John Cain and William Cain. A guardian ad litem for the infants was appointed, and at the March term, A. D. 1860, of said court a decree was made for the sale of said land of said wards. The decree of sale has this recital in it, viz.: “ and it appearing to the satisfaction of the court that all persons in any manner interested in the lands belonging to said wards were duly cited to be and appear before this court at the present term,” etc.' The sale was made by Paschal Seal, guardian, on the 12th of October, A. D. 1860, and reported to the court and confirmed by it in December, A. D. 1860. At this sale the land was purchased by persons under whom defendant claims, -as it is said by counsel on both sides, though the record does not show any intelligible connection between defendant ■ and the purchasers at this sale. Paschal Seal, guardian as aforesaid, made a deed, conveying part of the land sold to ■ James M. Jones, the 1st of July, A. D. 1861. Counsel for plaintiffs in error claims that this deed was made after Seal had ceased to be guardian, but the record does not contain any ■evidence of this. Kebecca Ann Ford, after her marriage with Seal, had one child, and died before this suit was brought, leaving her said child surviving her, but it was left uncertain whether that child was living or not when the suit was tried.

The will of Bartlett Ford was proved by two witnesses only, but appeal’s to have been attested by three. The two who proved it did not state in their testimony distinctly that the *365 will was attested by the third witness in their presence and in the presence of the testatoi% but. a fair interpretation of the language employed by the two witnesses in their probate of' the will may include the idea of the attestation of the will by the third witness.

With his plea of not guilty, defendant gave notice that on the trial he would object to the misjoinder of plaintiffs, as. having no such interest in common in the locus in quo as-entitled them to maintain a joint action. This notice was under Rev. Code, 1871, § 671. The verdict on trial was for-defendant, and plaintiffs prosecuted this writ of error, and assign as error in the action of the court below the overruling the motion for new trial; the admission as evidence of the record of proceedings in the probate court for the sale of the land of the plaintiffs ; the admission of the deed made by the • guardian of plaintiffs to Jones ; the admission of the probate of the will of Bartlett Ford; the admission of the record of the division of the land between the widow and children of' Bartlett Ford, deceased; and the giving of instructions asked bji- defendant. The last-mentioned assignment may be disposed of at once by remarking that the instructions were not objected to in the court below, either when acted on or in the motion for new trial, and they cannot be complained of for-the first time here. Therefore we will not notice them. The plaintiffs were entitled to recover such interest in the land sued for as devolved on them by descent from their mother. She was a devisee of Bartlett Ford, and on her death, it not being-made to appear that she left a will, her interest was cast by descent on her children. If her child by Paschal Seal was still alive, plaintiffs were her heirs .jointly with it. If the mother of plaintiffs made a will, or left her husband, Paschal Seal, surviving her, and tenant by courtesy, as suggested by counsel for defendant may have been the case, it was for-defendant to show this/and thus defeat the claim of plaintiffs as heirs of Mrs. Seal. We do not think there is anything in the-suggestion of counsel that plaintiffs are estopped to claim the • *366 ■estate of their mother in this land because she was a party to ■ the petition to sell the land of her wards, the plaintiffs. It ■was error to refuse a new trial.

The record of the proceedings for a sale of the land of ; plaintiffs on petition of their guardians should have been excluded from the evidence. The proceeding was under art. 151, p. 463, Rev. Code of 1857, and the decree of sale was void for ■ want of service of jn’ocess on the three nearest relatives of the minors in this state. The court ordered citation to Amite county for John Cain and William Cain, and to Franklin county for.Mary Jones. The citation for Mary Jones was execrated and returned, but. there is no evidence in the record that the citation to Amite county, for John Cain and William Cain, was issued and executed and returned, and there is no .recital in any decree of the court which can be fairly interpreted to include the assertion that this citation was duly ■executed. The recital copied above from the decree of sale, ‘£ that all persons in any manner interested in the lands belonging to said wards were duly- cited,” does not" suggest the idea that John Cain and William Cain were cited, for it cannot be pretended that they were in any manner interested in the lands belonging to said wards. The object of the statute requiring three of the nearest relatives of the minor to be summoned upon an application to sell his land, on the allegation that it is for the ■ interest of the ward to sell it, is to •apprise those who are supposed to be concerned for Ms welfare of the proposition to sell his real or personal estate, that they may guard and protect the interest of their kinsman by appearing and objecting to the sale, and showing reasons against it. The service of process on the three nearest relatives of the minor, if there be any in the state, is a condition precedent to the exercise by the court of the power to order a sale of the property of the ward, on the application of his guardian to sell because it is for the interest of the ward. As the decree of sale was void on this ground it is unnecessary to consider the other special grounds of objection to it. Nor *367 is it necessary to speak of tbe deed made by Seal, as guardian, for tbe decree of sale being void, all based on it is void. Tbe probate of tbe will was properly admitted in evidence. Tbe testimony of tbe two witnesses wbo proved it is probably broad enough to include proof of tbe attestation and subscription of tbe will by the third witness, and if this be not true, tbe decree of tbe probate court admitting the will to probate on tbe testimony before it cannot be questioned collaterally, but must be regarded as conclusive when thus brought into question. Tbe record of tbe division of tbe land of Bartlett Ford, deceased, by decree of tbe probate court, on application of N. L. Huff, one of tbe executors of tbe will of Ford, and not a devisee, should have been rejected as evidence. The probate court could have ordered a division on application of any •devisee, but its action in that direction on the application of one not a devisee was void. Mr. Huff, one of tbe executors of tbe will of Ford, bad no more right to initiate a proceeding for division of tbe land devised by tbe will than any officious intermeddler bad, and tbe court should not have noticed bis application.

Tbe judgment is reversed, tbe verdict set aside, and the cause remanded to be proceeded with in accordance with this •opinion.