Summary
In Fuller v. Qualls, 241 Ala. 673, 4 So.2d 418 (1941), this Court discussed the predecessor to § 43–8–161, noting that the language of the statute “is intended to cut off the remedy.
Summary of this case from Hardy ex rel. Estate of Carter v. HardinOpinion
4 Div. 175.
October 30, 1941.
Appeal from Probate Court, Covington County; H. J. Brogden, Judge.
Powell Fuller, of Andalusia, for appellant.
Wills may not become effective unless filed for probate within five years from the date of the death of the testator. Code 1923, § 10608; Gilbert v. Partain, 222 Ala. 459, 133 So. 2. Concealment of facts by a party will not constitute fraud which, under Code, § 8966, operates to prevent the accrual of the cause of action until discovery, if the party injured was negligent in discovering other facts that could have been discovered, notwithstanding the concealment, and which, when discovered, would have been sufficient grounds for relief. Mere ignorance on the part of the alleged defrauded party is not sufficient to prevent the running of the statute of limitations, but it must be ignorance that is superinduced by the fraud of the opposing party, in the form of active concealment, conduct calculated to mislead, or to prevent inquiry, and to lull into repose. Tillison v. Ewing, 91 Ala. 467, 8 So. 404; Peters Mineral Land Co. v. Hooper, 208 Ala. 324, 94 So. 606; American Bonding Co. v. Fourth Nat. Bank, 206 Ala. 639, 91 So. 480; Taylor v. Southern N. A. R. Co., C.C., 13 F. 152; Underhill v. Mobile Ins. Co., 67 Ala. 45; Hudson v. Moore, 239 Ala. 130, 194 So. 147; Kelly v. Shropshire, 199 Ala. 602, 75 So. 291.
Carmichael, Crenshaw Simmons, of Opp, for appellee.
The finding of the probate court on testimony ore tenus is presumed to be correct and will not be disturbed on appeal unless palpably erroneous. Johnson v. Barnett, 240 Ala. 413, 199 So. 804. If a will is fraudulently concealed the time for probate does not run until its discovery. Deake's Appeal, 80 Me. 50, 12 A. 790; 68 C.J. 948, § 697; Code 1923, § 8966; In re Estate of Walker, 160 Cal. 547, 117 P. 510, 36 L.R.A., N.S., 89; Caverno v. Webb, 239 Ala. 671, 196 So. 723; Fuller v. Scarborough, 239 Ala. 681, 196 So. 875; 26 C.J. 1061. There is a legal and moral duty on the custodian of a will to propound it for probate in the time required by law. Code, §§ 10610, 10611; Ratcliffe v. Seaboard Nat. Bank, Tex.Civ.App., 46 S.W.2d 750; 68 C.J. 879, § 605; Pettit v. Morton, 38 Ohio App. 348, 176 N.E. 494. A party is not required to presume fraud or suspect it until something comes to him leading a just person to suspect and make inquiry. Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286; Cartwright v. Braly, 218 Ala. 49, 117 So. 477; Jones v. Coan, 146 Ala. 659, 660, 41 So. 757; Kilby Locomotive Mach. Works v. D. B. Lacey Son, 12 Ala. App. 464, 67 So. 754.
This appeal is from a decree of the Probate Court of Covington County, admitting to probate and record the last will and testament of William M. Coon, deceased, who died on December 2, 1932. The petition for the probate of the will was filed by the appellee, Cynthia Qualls, named in the will as the sole devisee of the estate in remainder, after the falling in of the life estate devised to Celia Ann Coon, the wife of the testator, and a sister of the said Cynthia Qualls.
The proceeding for the probate of the will was contested on the sole ground "That more than five years have elapsed between the death of the testator and the time of the filing of the will, together with the petition to probate," c.
The proponent's replication to this plea of the statute of limitations avers that the said Celia Ann Coon was named in said will as the executrix of the same, that she had full possession thereof, and fraudulently concealed its existence from the proponent, who had no knowledge thereof and her rights thereunder, until the death of said Celia Ann Coon, which occurred within less than a year from the filing of the petition.
On the issues joined, evidence was given ore tenus, and we find in the record evidence which, if believed, sustains the averments of the replication and the conclusion of the trial court that the proponent had no knowledge of the existence of the will, and although the said Celia Ann Coon was advised to have the will probated, she failed to do so and concealed its existence from the proponent.
While the statute, Code of 1923, § 10608, Code of 1940, Tit. 61, § 34, is so worded as to operate against wills as well as proceedings to probate the same, it is nevertheless a statute of limitations, intended to cut off the remedy. Wills not probated are inefficacious to pass title or confer rights. This is clearly recognized and declared in Gilbert v. Partain, 222 Ala. 459, 133 So. 2. There it was observed: "We note that the statute contains no saving clause in favor of persons under disability or where the will has been lost or destroyed; but no question arising out of such disability, loss, or destruction is presented by this record, and of course what is here said is not intended to prejudice any such question.
It was not the legislative intent in the adoption of this statute to place it within the power of a legatee under a will, who obtained possession thereof, to deprive other legatees of their rights by fraudulently concealing the existence of the will.
Section 8966, Code of 1923, Tit. 7, § 42, Code of 1940, is in pari materia, with § 10608, Code of 1923, Tit. 61, § 34, Code of 1940, and must be construed as tolling the running of the statute, where the party invoking the remedy alleges and proves fraud as the basis of the right to proceed.
As before stated, the only defense urged to the proceeding was the statute of limitations. The due execution of the will was proved by both of the subscribing witnesses. Goldsmith v. Gates et al., 205 Ala. 632, 88 So. 861.
Affirmed.
GARDNER, C. J., and THOMAS and LIVINGSTON, JJ., concur.