Series of forms for use in the probate courts of Alabama ... making a complete manual of practice ...

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A
SERIES OF FORMS
FOE USE IN THE
ATE COURTS OF ALABAMA:
-COMPRISING-ALL
THE FORMS MOST GENERALLY IN USE IN SUCH COURTS, AND SUCH AS
ARE REQUIRED BY THE PROBATE JUDGE IN THE DISCHARGE OF THE
CLERICAL DUTIES ATTACHED TO HIS OFFICE, WITH REFERENCES TO
THE STATUTORY PROVISIONS UNDER WHICH THEY MAY HAVE
BEEN DRAWN; SOJIE FEW AND BRIEF EXPLANATORY COM-
' MENTS ; THE GENERAL LAWS, RELATING TO THE PROBATE
COURT, WHICH HAVE BEEN ENACTED SINCE THE CODE
BECAME OPERATIVE, INCLUDING THOSE PASSED
AT THE SESSION OF THE GENERAL ASSEMBLY
HELD IN 1851-'2:
ALSO,
THE RULES THAT HAVE BEEN ADOPTED BY, ATSTD WHICH ARE NOW IN FORCE
IN THE PROBATE COURT OF MOBILE COUNTY ; THE ATTORNEY'S FEE BILLS,
ADOPTED BY THE BAR OF THE COUNTIES OF MOBILE AND MARENGO,
TOGETHER WITH A FULL INDEX TO THE FORMS
MAKING A
COMPLETE MANUAL OF PKACTICE,
ADAPTED TO THE USE OF
JUDGES, ATTORNEYS. EXECUTORS, ADMINISTRATORS AND GUARDIANS,
BY
JOHN A. HITCHCOCK,
PEOBATE JUDGE FOR THE COUNTY OF MOBILE.
iHobiie:
FORSYTH & HARRIS, PRINTERS.
1857.
Entered according to the act of Congress, iu the office of the Clerk of the
District Court of the United States for the Southern District of Alabama,
in the year 1857. ^^^
EREATA.
I^he references at the head of form No. 11, page 29, should be, "1 Ala. U.
380-90 ; 4 Ala. K. 253."
In the note on page 32, for "pfe|>one«t" read " opponent."
On page 37, form No. 19, the title of the case is omitted.
In the\urtb line from top of page 119, after the words " served on them,"
insert the words " ten days before said day appointed for such hearing."
ff
PREFACE
AND EXPLANATIONS.
Every Probate Judge and Lawyer throtigliotit the State, must
be aware that thei-e is a lamentable confusion and irregularity in
the mode of conducting our Probate business. So liniversally is
this the case, that I have no fear of question, when I say, that of
the fifty-two Probate Courts of this State, all acting under pre-cisely
the same laws, the mode of procedure in no two of them will
be found to be the same. Indeed, such is the wide dissimilarity
in the practice of most of them, that it is quite probable that an
inspection of their records, would be far from producing conviction
upon the mind of a stranger, that they originated under, and grew
out of the same laws and judicial system. The mind is naturally
led to the inquiry, why is this ? and the reply to the interrogatory
is as promptly suggested, to the lawyer or judge of experience,
as the inquiry : It is because no effort has ever been made to
adopt, throughout the State, any uniform rules and system of
practice for the conduct and management of Probate business
;
because, in this State, we have had no book of forms, composed,
with special reference to the constitution of our Courts, and the
various proceedings contemplated by our State laws, notwith-standing
it must be evident to every Probate Judge, and to every
person having business in the Court, that there is no jurisdiction,
not even that of a Court of Equity, demanding more variety in its
formula or more skill and care in their preparation. Especially
is such the case as regards the Orders and Decrees of Court.
A book of forms will measurably supply the want of rules, and
the absence of a regular system of practice, inasmuch as no set of
forms can be framed and put together, in the order required as
^^ each proceeding may advance, without following out, step by step,
^ t , O
IV PREFACE.
a complete system, progressing regularly from its inception to its
close, and clearly indicating the rules of practice proper to be
followed in each individual case.
If, therefore, the following forms shall be found acceptable to
the bench and the bar of the State, and shall, by their use, tend
to evoke order and system out of what has been chaos (for such
diversity of procedure can amount to nothing else) hitherto, I
shall have accomplished some good, and fuliilled the utmost of my
own expectations.
The acts contained in the appendix are so few in number that
the author has not thought it worth while to index them. Neither
has any notice been taken, in the index, of the rales of practice
adopted by the Probate Court of Mobile, or of the Attorney's fee
bills, which will be found in this volume. The acts, however,
have been published in such connection that those upon the same
subject will be found succeeding each other, without regard to
date, while the other acts will be found in their order according
to date, commencing with the acts of 1851-2.
It will be found, on inspection, that the rules of Court are not
arbitrary behests, but merely such directions as have suggested
themselves to the mind of the Judge of Probate of MobUe coun-ty,
as proper for the orderly transaction of the business to which
they relate. They have been the result of his experience on
the subject ; and are included in the book because the author
thought that they might, possibly, be serviceable to some other
judge, in his endeavors to regulate and systematize the proceedings
of his Court.
One of the most perplexing matters which is submitted for the
decision of the Probate Judge relates to Attorneys' fees, and it is
a question which he is called upon to determine more often than
almost any other. The difficulty arises from the fact that there
has been no uniform standard by which to measure, or value the
services for which compensation is claimed. I have published the
fee bills adopted by the Attorneys of Mobile and Marengo counties,
for the purpose of aiding the judge in such cases. The fee bill
which was adopted in Mobile, was, at the time, and I believe still
is, acquiesced in as just, by the entire bar of the county. It is
true these fee bills have not the sanction of lex scri^yta, yet they
may be aids to decision as to what is right, nevertheless. If they
PREFACE. V
can not be regarded as law, tliey are, at least, not tlie result of tlie
opinions of any one or two lawyers, but the concurring judgment
of communities of lawyers, as to what is proper to be charged in
the given cases.
In using the forms the draftsman must bear in mind, that matter
contained in parenthesis and in italics in the text, is directory,
—
while matter in parenthesis and printed in roman letter is such as
may be required for use in case of any variation from the main
text being found necessary.
The author would recommend to those who use the book, that,
for the purpose of avoiding all mistakes, they should first consult
the table of " Errata," and note the error, in pencil, on the
margin of that portion of the text where the correction is required.
In conclusion, I must say that I am as fully aware as any other
person can be, that the book which I am about to send forth is far
from being perfect. In publishing it, I am not actuated by any
pride of authorship, but stimulated solely by the hope that it may
prove of advantage to the jurisdiction of one of the most important
Courts in the State, and a labor-saving aid to my brethren of the
bench and the bar.
THE AUTHOR.
Mobile, September 1, 1857.
INTEODUCTION.
I do not propose to enter into an elaborate or an extended ar-gument
on the subject of the jurisdiction of the Probate Courts
of this State ; but, it does not seem to mc that my book will
be at all complete, without a few introductory words, touching
the power of the Court, the proper exercise of which, is the sole
aim and purpose of every page in it. I am principally impelled
to this course, however, by the fact, that I believe the subject
has not been a matter of very thoughtful investigation for some
years past ; and because, if I am correct in the view which I
take of the matter, there is much error existing in the general
opinion as to the jurisdiction of this Court—error which should
be removed.
I believe it to be the generally received opinion, that the Probate
Court derives its powers solely from the Code ; and that, therefore,
being purely a statutory Court, its jurisdiction is circumscribed
by the letter of legislative enactment, which must be strictly con-strued
; and that the right to take jurisdiction, in each case where
it is exercised, must distinctly appear, by affirmative allegations, in
the record of the judgment it renders ; as, without such record af-firmation,
the Appellate Court must presume against its author-ity.
I beUeve these generally received opinions to be erroneous
in every particular. I hold that the subject of the administration
of estates, the execution of wills, and " Orphans' business " gen-erally,
in the broadest acceptation of the terms, are referred, by
the Constitution of the State, for adjudication, to the forum of
the Probate Court alone ; that the Constitutional jurisdiction of
that Court is limited only by the extent and range of the subjects
so referred to it ; that, in disposing of such subjects, the jurisdic-
'tion of the Court is general, limited only by the necessities of the
INTRODUCTION. VU
i
case, and tlie rules of practice for the transaction of such busi-ness—
which rules may be prescribed by statute, or in the absence
of any statute, by the Court, or ascertained from the custom of
such Courts, in similar cases. In other words : I hold, if it ap-pears
from the record, that the subject of the judgment or decree
pertains to an ordinary administration, the execution of a will, or
to Orphans' business, then the legal 'presumption is that the Court
had jurisdiction, and that it has rightly exercised it, unless the
contrary is affirmed by the record itself.
I am not ignorant of the decisions of our Supreme Court as to
the limited, special and statutory character of the jurisdiction of
the old " Orphans' Court,"—the correctness of which judgments,
I shall not pretend to question. Nor am I unmindful of the fact
that our Supreme Court, in recent cases, has apparently trodden
through the same beaten path ; but, I must add, that those recent
opinions have been pronounced upon the faith of those old author-ities,
without an examination, and without the attention of the
Court being in any way directed to the fact, that the Courts of the
county have been radically re-organized within a few years past.
In my investigations of this qiiestion, therefore, I shall put out of
view the decisions of our Supreme Court as to the character and ex-tent
of the jurisdiction of the old " County," or " Orphans' Court."
As I said before, I do not question the correctness of those decisions.
That Court was undoubtedly statutory—created solely by the Le-gislature
under the general power to create " inferior Courts." It
certainly was not directly created by the Constitution. It only ex-isted
by virtue of the statute which brought it into life ; and, accord-ing
to well established rules, applicable to Courts having such an
origin, its powers were required to be literally pursued, and its
right to adjudicate, in each case, to appear by affirmative allegation
in the record of its judgments. But, my position is, that the Pro-bate
Court of to-day is by no means the same as the old " Coimty,"
or " Orphans' Court ;" that while the County or Orphans Court
Was purely a statutory Court, the present Probate Court is as
purely a Constitutional Court, it being created by, and its juris-diction
as distinctly defined in the Constitution, as is that of the
Circuit Court. In the few remarks, therefore, which I have to
make upon this question, I shall treat it as one of first impres-sion.
I deem it such, for, so far as I am aware, it has never been
Vlll INTRODUCTION.
examined in this State, in the light in which I now propose to
view it.
Article 5, of the Constitution, is devoted to the establishment
and regulation of the "judicial department" of the government
of this State. In the first section of that article we find it af-firmed,
that " the judicial power of this State shall he vested in
one Supreme Court, Circuit Courts to be held in each county in
the State, and such inferior Courts, of law and equity, to consist
of not more than five members, as the General Assembly may,
from time to time, direct, ordain and establish."
In this section we have, combined in a few words, the Constitu-tional
creation of "one Supreme Court, Circuit Courts to be held in
each county in the State," and the entire and only power which
is vested in the Legislature to create, by its enactment, other and
" inferior Courts of law and equity." The succeeding sections
define the jurisdiction of the Supreme Court to be general, but
only appellate from other Courts. The sixth section declares
that the jurisdiction of the Circuit Court shall be original in all
matters, civil and criminal, not otherwise excepted in the Con-stitution,
where the matter or sum in controversy exceeds fifty
dollars. Had the framers of the Constitution stopped here, there
could be no doubt on the mind of any one, but that they had al-ready
created Courts of general, original and appellate jurisdic-tion,
and conferred the fullest power to create inferior Courts of
law and equity, of such limited and definite powers as the Legis-lative
department might, " from time to time, direct, ordain and
establish." The General Assembly, by virtue of this first sec-tion,
would have had the most ample " power to establish a Court
or Courts of Chancery, with original and appellate equity juris-diction,"
without the provision contained in the eighth section.
The ninth section need not have declared that, " the General
Assembly shall have power to establish, in each county within
this State, a Court of Probate, for the granting of letters testa-mentaiy
and of administration and for Orphans' business," in or-der
to secure the establishment of a tribunal for the disposition of
probate matters. Power to create such tribunals already existed
under the first section. Still, we find that the framers of the
Constitution were not willing to permit the jurisdictions of Courts
of Chancery and Courts of Probate to be vested entirely in
INTRODUCTION. IX
statutory Courts—doubtless, upon the very sufficient ground, that
the peculiar jurisdiction of these Courts was of too much impor-tauce
to be permitted to rest upon a statutory basis, hampered
by the rigid and technical rules of decision, before referred to, and
which must apply to them.
But the General Assembly did not exercise the special power
to create a Court of Chancery until about 1839, and never cre-ated
any Probate Court at all. As to the jurisdiction of the latter
Court, it attached the exercise of it to the County Court, a Court
of common law, and directed that Court to hold terms under the
name of an " Orphans' Court," to transact such " Orphans' busi-ness"
as the legislature might, from time to time, direct. It
is needless to refer to decisions, in this connection, for it will be
admitted that our books are full of authority declaring the old
" Orphans' Court " to be a statutory Court. It is true that the
decisions upon the point are some what confused and contradic-tory,
but the conclusion to which they all tend is, that the " Or-phans'
Court " was purely a statutory Court.
In 1850, however, by an amendment to the twelfth section of
the 5th Article of the Constitution, the General Assembly was
directed to " provide by law * * * * for the
election of Judges of the Courts of Probate, and other inferior
Courts (not including Chancellors) by the qualified electors of the
counties * * * for which such Courts may be res-pectively
established." Thus, we have the Court of Probate
established by the Constitution itself. It has its judge provided
for, and its jurisdiction defined by the Constitution, independent
of any enactment by the General Assembly, except such as is
positively directed to be made in the Constitution. To say that
the jurisdiction is not conferred directly by the Constitution would
be simply preposterous, because it would be in the face of the
plain language of that instrument—(Article 5, § 9.) To say that
the phraseology used in defining the jurisdiction, is of so general
a character as to make it necessary that the legislature should
step in and define it by act, involves other consequences, equally
absurd, as it appears to me : The defining act would then be in the
place and stead of the language of the Constitution : The legis-lature
would be deciding upon the Constitution and not the Courts,
where such power is properly vested : Or, if we may suppose such
X INTRODUCTION.
a case, if the legislature saw fit, for any reason, not to act in tbe
premises, we should have a Judge, (for he is required to be elec-ted,
under the Constitution) to preside over a Court having no
jurisdiction.
It seems to me, then, we are to read and interpret the present
language of the Constitution, as follows: There shall be estab-lished
in each county in this State, a Court of Probate, to preside
in which, there shall be elected, by the qualified electors of each
county, a Judge, to be styled the Judge of Probate. Such Court
is established "for the granting of letters testamentary and of
administration and for Orphans' business."
It does not seem to me that there can be a doubt started, but
that the Probate Court, and its probate jurisdiction are the direct
offspring of the Constitution, and that they can, in no view, be
designated as statutory. If I am correct in this conclusion, then
the only question which need ever be asked, in determining upon
any question as to its peculiar jurisdiction, (I mean respecting
estates, &c.,) is, do the terms of the Constitution comprehend the
case under consideration. If they do, then no resort to the
statutes is necessary, except as to the mode, if any, which may
be prescribed for the enforcement of such jurisdiction, or as to
the remedy or relief which the Court may grant. The Court
would have the power to act, but its mode, and the result of its
action would be entirely under the control of legislation. But the
legislature can no more prohibit its acting in matters expressly
referred to it by the Constitution, than it could abolish it, or des-troy
the Supreme Court.
I take it, therefore, that the only question which we have to
settle is as to the purport of the words of the grant in the Consti-tution,
which are as follows, viz : " For the granting of letters
testamentary and of administration and for Orphans' business."
As to the power to grant " letters testamentary and of adminis-tration"
no comment is necessary. Such grant of power carries
along with it all that is incident thereto—such as the jurisdiction
necessary to the probate of the will upon which letters testamen-tary
are to be granted; in other words, the power to ascertain,
before authorizing the execution of an instrument as a wiU, whe-ther
or not the instrument is genuine and lawful. Such power,
also, carries with it, as another incident, the right to see to it that
INTRODUCTION. ^
the authority of the executor or administrator, thus derived, is not
abused, but is executed according to law. By such letters the rep-resentative
is authorized to collect and take possession of the
estate of the deceased, to pay the debts, and then to turn the
residue over to the parties entitled to receive it, as heirs, legatees
or de\'isees. It is the right and the duty of the Court of Probate,
to compel the proper execution of this trust, by means of inveu-tories^
appraisements, accounts, settlements, &c., to be required in
accordance with the usages and practice of such Courts, imless
when the mode to be pursued is directed by statute.
The words " and for Orphans' business" may not be so definite
in their import, but they were undoubtedly intended to give to
the Probate Court a more extended power and jurisdiction, over
matters pertaining to estates, than that conferred by the words
preceding it in the grant. It is not difficult, however, to ascertain
what the framers of the Constitution meant when they added
those last words to the section. All we have to do is to submit the
language to the ordinary test in such cases, viz : the question,
what was the legal import attached to the terms immediately before,
at the time, and shortly after their introduction into our Constitu-tion.
We can assuredly only understand what is meant, by what
has been said in the past, by ascertaining the understanding of the
language or phrase in question, when used by the intelligent peo-ple
of that past day. An authority in point suggests itself : The
Constitution of the United States declares that the judicial power
shall extend " to all cases of admiralty and maritime jurisdiction
;"
and the books of reports of decisions of the United States Courts
are full of authorities referring this jurisdiction to an examination
of the meaning of the phrase, " admiralty and maritime jurisdic-tion,"
before, and at the time, and shortly after its adoption. It
is the intention which prevailed at the time of the adoption of the
Constitution which must control its present purport. The meaning
of language may change with time and circumstances, but the
Constitution can not be permitted thus to vary—the original intent
must be held to be unchangable.
What, then, was the meaning attached to the phrase, " Orphans'
business," at the time when the Constitution was adopted ? An
examination of the acts of the territorial legislature, to be found
in Toulmin's Digest, from the time of its organization down to the
XU INTEODUCTION.
period wlien Alabama was erected into a State, and of tlie contin-uous
acts of the General Assembly from tbe latter period down to
this time, will show that the words "Orphans' business" were
applied to designate the very business, and all of it, in almost all
of its varieties, which is now the subject of Probate jurisdiction,
as set forth and defined in our Code and other laws. It is pro-bable
that no jurisdiction has been the theme of so mucb anxious
legislation as that for the transaction of " Orphans' business." It
is a singular fact, however, that with all this legislation the
jurisdiction has never been circumscribed from what it was when
the Constitution was framed, but has rather been the subject, when
any change has been made, of favor. The changes, however*
have generally been as to the modes of proceeding, and not as to
any material alteration in the subjects of jurisdiction.
The limits to wliich I must confine myself, will not permit of
a more particular reference to the different statutes which have
been enacted from time to time. Such reference can easily be
made by any person who may desire to look farther into the ju-risdiction
of the Probate Court.
If I have not been misled in my investigation of this subject,
the whole jurisdiction of our Probate Courts is general over the
entire subject matter of estates, their collection, settlement and
distribution—even to the sale and distribution of the lands of the
heir. If so, then this consequence must follow, that such juris-diction
is exclusive as well as original; that no other Court can
meddle with it except by proceedings in the nature of an appeal.
Farther, that such jurisdiction is plenary over the matters thus
referred to it ; and that the judgments of the Courts exercising
that jurisdiction, are entitled to the same presumption in their
favor that is indulged in towards the decrees in Chancery or the
judgments of the Circuit Court. If the record shows that the
subject matter of tbe adjudication is apparently of the nature of,
or within the purview of tbe business of the Court, viz : that
it pertains to estates, &c., or to administrations, then it seems to
me that the Appellate Court should presume, until the contrary
is made to appear aflSrmatively, that the power of the Court has
been put in motion and carried out, to the final decree and judg-ment,
in the proper and legal manner.
INTRODUCTION. Xlll
It lias been sometimes said that it was necessary to circumscribei
the jurisdiction of the Probate Court, and hold it down to a re-stricted
rule, because it was so often the case that men not "learned
in the law" filled the benches of that Court. Suppose it be granted
that the fact is as so affirmed, the same authority has said, that
magistrates were generally plain, unlearned men, whose pro-ceedings
must not be too closely or rigidly criticised. Will not
the reasoning apply with equal force, to any Court, of which the
same fact can be predicted 1
"What is the result of requiring that the record of the Probate
Court must show every thing affirmatively ? Simply this : that
the Probate Judge is actually required to exercise more skill in
rendering his judgments, than is exacted from the Circuit Court
Judge or the Chancellor. And the technicalities with which he is
thus surrounded ; the particularities required of him in every en-try
he makes, are well calculated to divert his mind from the ad-ministration
of that complete justice and equity which the law
of probate enjoins, and which the people require at his handsi
The existence of such a rule, it seems to me, is only calculated to
direct the mind of the Judge, rather to the fullness and accuracy
of his expression in rendering his decree, than to the attainment
of substantial justice as the result. Would it not be better^
therefore, as a matter of policy, even if the law did not not
strictly require it, (as I think it does,) for the Appellate Court
to hold the jurisdiction of the Probate Court to be general and
plenary, over the matters referred to it, and always to presume
in favor of the rightful exercise of that jurisdiction until the con-trary
is affimatively shown ?
In conclusion of this introduction, I will refer to some extracts
from an able opinion of Mr. Justice Sharky, late of the Supreme
Court bench of Mississippi, upon the subject of probate jurisdic-tion
in that State. It will be observed, that the provisions in the
Constitution of Mississippi, upon the subject of Probate Courts,
are not materially variant from our own, so far as this argument
is concerned. The extracts are from a case in 3d Howard, com-mencing
on page 252, and are as follows, viz :
** Mr. Chief Justice Sharky delivered the opinion of the Court.
As a preliminary question in this case, our attention is directed
to the respective jurisdictions of the Probate and Chancery
XIV INI^RODUCTION.
Courts. If the matters in tlie bill were recognizable by the Pro-bate
Court, then it is contended, that tlie remedy should have
been pursued in that Court, and that the Court of Chancery had
not jurisdiction. The same question has been adjudicated by
this Court, but the decisions are called in question by counsel, as
unwarranted by the Constitution and laws. We shall always be
ready to abandon pre-conceived opinions, when convinced that
we are in error ; but, in this instance, we see no reason for adopt-ing
a rule different from that already decided to be the true one.
The decisions do not go as far as they seem to be understood to
go by counsel. The broad proposition that an administrator
could not, for any purposes, resort to a Court of Equity, or that
he could not in that capacity, be there proceeded against for any
contingency, was never intended to be asserted, nor do the opin-ions
warrant any such conclusion.
"That the jurisdictions of the two Courts are not concurrent,
but separate and distinct, and even exclusive in the true meaning
of the term, we apprehend there can be no doubt. How is ju-risdiction
given to our Courts 1 I answer, by the Constitution.
Do they possess any other jurisdiction than such as may be ex-pressly
given with the incidents or poAvers necessary to carry
that jurisdiction into effect? I know of none other. The Con-stitution
says, that the Chancery Court shall have ' full jurisdic-tion
in all matters of equity,' with a proviso, that the legislature
may give to the Circuit Courts, equity jurisdiction in all cases
when the amount in controversy does not exceed five hundred
doUars, and in cases of divorce and mortgages. Could the legis-lature
give the Circuit Courts jurisdiction in other equity matters?
It must be answered no, and the reason is, that such jurisdiction
is already given by the Constitution to the Court of Chancery.
The proviso shows conclusively, that exclusive jurisdiction was
intended to be given, else, why the necessity of such proviso.
Whenever the legislature gives the jurisdiction mentioned in the
proviso, to the Circuit Courts, the jurisdictions to that extent will
be concurrent. To ascertain the jurisdiction of the Court of
Chancery, we must first look to the Constitution ; we there find,
that it is full and pomplete in all matters of equity. The in-quiry
is then to be made, what are matters of equity ? To as-certain
this, we look to the powers exercised by other Courts of
INTRODUCTION. XV
Equity, bearing in mind tlie restrictions wlaicli may be imposed,
or which may necessarily arise under oiir own peculiar system,
and whatever we find to be a matter of equity, is within the ju-risdiction
of the Chancery Court, unless expressly, or by neces-sary
consequence, given to some other tribunal, and in that case
it is not. The Constitution has also provided, that a Court of
Probate shall be established in each county of this State, with
jurisdiction in all matters testamentary and of administration, in
Orphans' business and the allotment of dower, in cases of idiocy
and lunacy, and of persons non compos mentis. This is not a lim-ited
jurisdiction, but it is general in all the subjects mentioned.
Could the legislature give full power over these matters to any
other tribunal 1 If not, the jurisdiction must be exclusive, and
I imagine that it will be readily answered that it could not, be-cause
the Constitution has already distributed that power to a
particular tribunal. No terms of restriction or limitation were
necessary in the Constitution, to confine the several subjects of
jurisdiction to particular Courts ; by a familiar rule of construc-tion,
the express grant of them to one, necessarily excludes the
jurisdiction of others. If our Courts derive their jurisdiction
from the Constitution, of course there can be no concurrent jurisdic-tions,
except by constitutional provision, or by some law not re-pugnant
thereto, and it does not follow, that, because the Court
of Chancery in England exercised a jurisdiction concurrent with
the Spiritual Courts, in matters testamentary, that it may also ex-ercise
such authority here. Whatever is a matter testamentary,
or of administration, falls under the cognizance of the Court of
Probates. We do not mean to decide, however, that there are
not cases arising in the course of administration, which may be
proper for the interposition of a Court of Equity. The same rule
which is appliable to other Courts of law, will no doubt apply to
this. If it be wholly incompetent to give relief, and the party
has not, by his own laches, lost his remedy, then it might be a
proper case for equity jurisdiction ; but if the remedy can be had
under the appropriate powers of the Probate Court, it should
there be pursued ; and the incompetency of the Court to give re-lief,
must not arise from the neglect of the party who seeks it in
equity."
XVI INTRODUCTION.
" We are satisfied that tliere is no showing in this bill which
should entitle it to the favorable consideration of a Court of Equi-ty—-
no allegation of injury, for which there is not an ample and
speedy remedy in other and appropriate tribunals. The facts
stated, are of every day's occurrence, and if this bill could be en-tertained,
there are few cases of administration, which might not,
with equal propriety, be settled by a Court of Chancery—in fact,
it seeks nothing but to compel an account and distribution, two
of the prominent duties of an administrator, in his defined course
of administration, under the immediate superintendence of the
Probate Court. As it may in some degree, tend to prevent fu-ture
useless litigation, we deem it proper to remark, that there
are but few, if any, cases of administration, in which the powers
of the Probate Court are not altogether adequate to the necessa-ry
relief. Indeed, its powers may be said to be co-extensive with
those of a Court of Equity, for if necessary, parties may proceed
by bill and answer, and the Court may decree as the justice of
the case may require. In matters of account, it possesses equal
powers, which can be more speedily exercised, and with less ex-pense.
We would, therefore, admonish all who are interested in
estates, that the progress to final settlement should be watched
with diligence through the Probate Court."
ATTORNEY'S FEE BILL,
ADOPTED BY THE BAR OF MOBILE, MARCH, 1846.
1. In Actions of Ejectment, and other actions for the
recovery of real estate, where the title is doubtfi;l and
contested, and the value of the property is $10,000
or less, 10 per cent, on the value to the successful
party, and 2^- per cent, to the unsuccessful party.
—
Where the title is clear and uncontested, half of the
above charge ; and where the value exceeds $10,000
half of the above charge on such excess, but in no
case less than $50 00
2. In Actions of Detinue and Trover—The same
charges as above, but in no case less than 20 00
3. In case of Forcible Entry and Detainer—
For attending before a Justices' Court, not less than 25 00
For attending before a Superior Court, additional fee, 25 00
4. In Actions of Trespass and Actions on the
Case-^To the plaintiff, 10 per cent, on the amount
recovered and made ; and in no case to plaintiff or
defendant, less than 25 00
5. In Actions of Debt, Covenant and Assumpsit—
To the plaintiff, commissions as follows :
On the amount litigated, recovered and made 10 per ct.
On the amount not litigated, but recovered and made, 5 per ct.
On the amount litigated and not recovered, 5 per ct.
On the amount litigated and recovered, but not made, 5 per ct.
On the amount not litigated, but recovered and not
made, 2^ per ct.
But in no case less than 10 00
To the defendant, in litigated cases
—
On the amount litigated successfully, 10 per ct.
On the amount litigated unsuccessfully, 5 per ct.
But in no case less than 10 00
To the defendant, for appearance only, in unlitigated
cases—One per cent, on the amount sued for
;
But in no case, in a State Court, less than 10 00
And iu the United States Court, not less than 25 00
XVllI FEE BILL.
6. For getting a claim secured, 5 per ct.
7. For collecting money without suit, or for getting an
open account or claim closed by note or otherwise, .- 2^ per ct.
8. In State Cases—
For defending a white person charged with an offence
punishable capitally 300 00
For defending a negro on similar charge 100 00
For defending a person charged with an offence not
capital, but punishable by imprisonment in the Peni-tentiary,
100 00
For defending a charge of keeping a gaming table,.. 300 00
For defending a charge of allowing a gaming table to
be kept, 100 00
For defending a charge of gaming, - 25 00
For defending in other State cases, not less than 10 00
For aiding in prosecuting, at least as much as for de-fending.
9. In cases of Petition for Dower, or for Partition,
or for the Sale of Real Estate, or for Procuring
Titles to Real Estate, if litigated, 5 per cent, on
the value in controversy ; if not litigated, 2i per cent.
on such value, but in no case, less than 25 00
10. In Contested Will Cases—to the successful par-ty,
5 per cent, on the amount in controversy ; to the
unsuccessful party, 2.} per cent, on such amount, and
in no such case, less than 50 00
11. For attending on behalf of Executors, Adminis-trators,
&c., to the settlement of their accounts, 2
per cent, on the amount of the largest side of the ac-count,
and in no case, less than 25 00
12. For appearing for Executors, Administrators,
&c., to resist a settlement, 5 per cent, on the estimated
amount of assets in their hands, and in no case, less
than 50 00
13. For prosecuting or attending to a claim of a credi-tor,
legatee or distributee, in the Orphans' Court, the
same fees as in actions of assumpsit.
14. In Chancery Cases, litigated—To the successful
party, 10 per cent, on the first $10,000 in value of the
subject in controversy, and 5 per cent, on the excess
over $10,000—to the unsuccessful party, and also, in
uncontested cases, half the above fees ; but in no case,
less than 25 00
FEE BILL. XIX
15. In Qui Tam Actions—To the plaintiff, 25 per
cent, ou tlie amount recovered and made ; and in no
such case, to plaintiff or defendant, less than 25 00
16. For Habeas Corpus, and proceedings thereon, at
least 25 00
17. In Admiralty Cases and Attachment Oases,
the same fees as in action of assumpsit j and for
preparing the papers, an additional fee of 15 00
18. For attending to any other business in any Court of
Record, or any other business requiring a Lawyer to
leave his office, not less than 10 00
19. For attending before the Mayor's or a Justices'
Court, not less than 5 00
20. For attending to the taking of depositions, for each
witness, at least 5 00
21. For getting affirmance of judgment in Supreme
Court on certificate, half the damages.
22. For arguing a case in the Supreme Oou^t, the same
fee generally as in the Court below, but in no case,
less than 50 00
23. For writing a Will, not less than 25 00
24. For writing an Absolute Deed or Mortgage of
real estate, if the property conveyed is of the value
of $1,000, or less, 5 00
If the property is over $1,000, and not over $10,000
in value, 10 00
If the property is over $10,000 in value 20 00
25. For writing a Deed of Trust, Assignment or
Marriage Contract, one per cent, on the value of
the property, but in no case, less than 10 00
26. For writing any other contract, not less than 5 00
27. For oral opinion or advice, not less than 5 00
28. For written opinion or advice, not less than 20 00
29. Where a case is compromised before judgment, 5 per
cent, on the amount realized to the plaintiff.
30. The foregoing fees are to be regarded as minimum fees, and
subject to contracts or charges for larger or contingent fees ac-cording
to the circumstances of each case of which each Attor-ney
may judge for himself.
31. In cases where litigation is expected, it is considered reason-able
that a portion of the fee should be required to be paid iu
advance, or the whole secured.
XX FEE BILL.
32. To avoid misunderstandings between Attorneys or Clients, it
is recommended that special written agreements be made, when
convenient.
33. The members of the Mobile Bar, subscribing to this Fee Bill,
concur in thinking the foregoing Fees and Regulations just and
reasonable and in accordance with previous general usage in
Mobile, and approve them as a standard by which to regulate
their charges.
ATTOENEY'S FEE BILL,
AIX>PTED BY THE BAR OF MARENGO COUNTY, 1854. m
1. For collecting money by suit or otherwise, without
litigation, when the sum does not exceed §100 $5 00
Upon all sums over SlOO five per cent.
When the money cannot be made, half commissions
upon the amount of the judgment.
2. For procuring note of debtor in settlement of open
account, or unliquidated demand, 2^ per cent.
3. For securing claims, the same fees as for collecting.
4. Upon all sums collected, secured or liquidated for
non-residents, 5 per cent.
5. In each litigated case for the recovery of debt 10 per
cent, upon the first $3,000, and 15 per cent, upon ba-lance
in controversy ; but the fee shall not be less than, 10 00
6. In every litigated case for the recovery of property
and damages, or either, 10 per cent, upon the first
$3,000, and 5 per cent, on the balance ; but the fee
in such case shall not be less than 20 CO
7. For prosecuting a case of slander 200 00
8. And for defending the same 100 00
9. In actions of false imprisonment, breach of marriage
contract, seductions, crim. con., malicious prosecution,
and suing out attachments 50 00
10. In actions of qui tam or debt to recover forfeiture
or penalty, $20, and 10 per cent, upon the amount
sued for.
FEE BILL. XXI
11. In action of trespass to person $25, and 10 per cent,
upon amount recovered for prosecuting. For defend-ing
same 25 00
12. In prosecutions for felony 100 00
13. For fornication and adultery, first offence 50 00
14. Gaming, betting, &c 20 00
15. Trading with slaves or retailing 25 00
16. For all other misdemeanors 25 00
17. For simply preparing bill or answer in Chancery.
.
25 00
18. And for prosecuting or defending case in Chancery, 25 00
19. For a petition in Chancery, in nature of bill 15 00
20. For foreclosing mortgage in Chancery, in case not
litigated $25 ; and 5 per cent, upon the amount col-lected,
and J per cent, on amount not collected. And
when the case is litigated, $50 ; and 10 per cent, upon
all over $500 and not exceeding $3,000, and 5 per
cent, on the balance.
21. In suits in Chancery for a division of property $25 ;
and 1 per cent, upon the interest of your client.
22. In cases of creditor's bills or to reach equitable as-sets
10 per cent, upon amount in controversy ; but
the fee shall in no such case be less than 50 00
23. In suits in Chancery to recover property, $100; and
10 per cent, on the amount in controversy over $500
and not exceeding $3,000, and 15 per cent, upon the
balance.
24. For attending to the taking an account before the
Master, for each day 10 00
25. For attending the taking of depositions for each wit-ness,
$5 ; but we are not required to charge exceed-ing
$10 per day.
26. For petition in Probate Court to sell land, and at-tending
to same, $20; and when the land exceeds in
value $500 1 per cent, upon the first $2,000, and ^
per cent, upon the balance.
27. For defending application in Probate Court to sell
land, the like fees.
28. For probating will not contested 10 00
29. And when contested 50 00
XXll FEE BILL.
30. In petition for dower, not litigated 15 00
31. And when litigated 50 00
32. For attending to such business of an executor, ad-ministrator
or guardian as does not include the out-door
business, and the collection and disbursement of
the money of the estate, ^ of his commissions.
33. For general retainer, as counsel of executor, admin-istrator
or guardian, 25 00
34. In taking an account before the Probate Judge, for
each day 10 00
35. In contested road case before Commissioners' Court, 25 00
36. Petition in Probate Court to perfect titles to land,
$20 ; and J per cent, upon the value of the land over
$1,000.
37. For writing deed or power of attorney 5 00
38. For a simple will, deed of trust, morgage, or arti-cles
of partnership, not less than 10 00
39. In unlawful entry or forcible detainer before justice
of the peace 20 00
40. In all other litigated cases before a justice 5 00
41. For a legal opinion 10 00
42. Where case is compromised before trial the fees
shall not be less than half.
43. Contingent fees shall be at least double the fees
herein specified.
44. "Where it is not herein otherwise provided, the fees
for prosecuting or defending cases, shall be the same.
45. The fee shall in no case, or for any service, where a
charge is made, be less than 5 00
46. Nothing herein contained shall prevent the render-ing
of services gratuitously, or prevent one member
of the Bar from aiding another upon such terms as he
may think proper.
47. For procuring the affirmance of judgment in Su-preme
Court, upon certificate, one half the damages.
48. In litigated cases in Supreme Court the fees shall
be at least one half of what may be charged in the
Court below, but shall in no case be less than 25 00
EULES
IN FORCE IN THE PROBATE COURT FOR MOBILE COUNTY.
State of Alahama, \ -n .-, r^
Mobile County. ] ^^ *^« ^^"^^^^
For the safety of files and records, the better to secure aU
written evidences pertaining to estates of deceased persons and
wards, and to ensure the orderly and accurate transaction of the
business of this Court : It is ordered, that the following Rules,
numbering from one to ten, inclusive, be spread upon the minutes
—'this being a day of a regular term, and the Court now being in
open session, to wit
:
RULES.
1. To enable the Judge to comply with subdivisions three and
four of § 672 of the Code, no paper or record, belonging to this
office or Court, will be permitted to be carried from this office by
any person. And this rule is made inflexible, except when the
ends of justice may demand, and some other Court, on due mo-tion,
shall require the production of the original paper or record,
according to § 2295 of the Code.
2. The accounts of receipts and disbursement of executors, ad-ministrators
and guardians, must show, not only all the items of
receipt and disbursement, stated separately, but also the sources
from which the money has been collected, and the amount from
each source.
An account containing general statements of money collected,
such as : This amount collected for negro hire, or for rent, or on
account, will not be allowed to be filed. The statement must be
particular—as thus : To this amount collected from A, B., for the
hire of Jack for month of February last : To this amount from
C. D., for rent of store No. 100 Commerce street, in the city of
Mobile, for the quarter ending February 1st, 1857—as by this
XXIV RULES OF COURT.
mode of statement, only, can the Court make an investigation
which ought to be satisfactory.
Net collections, after making deductions for expenses, &c., must
not be stated, but the gross amount collected must be charged,
and the items of expense stated in the column of credits, so that
the Coiu-t and those interested in the account may have an oppor-tunity
for proper examination.
Credits, claimed upon a general charge, as, "To sundries," will
not be allowed. The items making up the sundries must be
separately charged, so that the Court may be able to pass upon
each.
The exact debt or purpose for which each disbursement is made,
must be stated in the account.
3. If a payment has been made to the heir or distributee, it
must not be charged in the account with the estate, but should
be set forth in a separate account against such heir or distributee,
so that, upon final settlement, the same may be in a position to
be investigated, and, if found to have been properly paid to the
heir or distributee, be then deducted from his distributive share,
as a part payment thereof.
4. For the purpose of facilitating the orderly dispatch of mat-ters
pertaining to settlements, when an account may be disputed,
the party contesting must file his exceptions in writing, specify-ing
to which items of the account he excepts, with the grounds of
exception, or as to which, additional proof may be required.
5. Accompanying each statement and account filed for final
settlement, there shall be furnished to the Court, in writing and
under oath, a list of the property, whether real, personal or
mixed, belonging to the estate or ward, and which may be sub-ject
to distribution and division among the heirs of the deceased,
or among the legatees, or devisees under any will, or required to
be turned over to any ward.
6. No former account of an executor, administrator or guardian
will be inquired into, except for some special reason articulately
alleged in writing ; and when so inquired into, the investigation
shall not extend to the account generally, but shall be confined to
what is so specially alleged. Such objections and exceptions
must be filed at least one day prior to the day of hearing.
RULES OF COURT. XXV
7. When It is sought to charge a representative or a guardian
with more than appears in any of his accounts, the matter so
sought to be charged, must be distinctly alleged in writing, and
filed at least one day before the day of hearing.
8. No extra allowance will be made for special or extraordina-ry
services, except upon final settlement, unless under peculiar
circumstances, to be judged of by the Court in each instance.
No extra allowance will be made, under any circumstances, un-less
the services upon which the claims for such allowance is
based, are particularly named in writing, under oath, and in
detail.
9. In all cases where a minor over the age of fourteen is re-quired
to be brought into Court, for any purpose, and where lie
resides in this State, and no other provision is made as to notice,
the notice or citation must be personally served on such minor ;
and when the minor in any such case is under fourteen years of
age, then such service, when not required to be made otherwise,
must be made upon the person having the actual custody of the
minor : Provided, that in all cases where a minor, having a
guardian in this State, is required to be brought into Court, for
any purpose, such guardian shall also be entitled to notice.
10. On application to sell land, if there are more pieces than
one, each must be separately described and numbered in the pe-tition.
Remarks supplemental to the foregoing Rules.
It is very desirable that the foregoing rules should be complied
with in all cases ; and, when counsel are employed, a strict com-pliance
will be rigidly exacted.
FORM FOR OPENING COURT ON THE SECOND MONDAY OP THE MONTH.
—Code § 671
State of Alabama, )
Mobile County. )
At a regular term of the Honorable, the Court of Pro-bate,
held in and for said County and State, at the Court
house of said County in the City of Mobile, on the second
Monday of January, in the year of our Lord, one thousand
eight hundred and fifty-seven, being the twelfth day of said
month, the following proceedings were had, to wit:
Edwin Rust, Esquire, presiding Judge.
John Jones Ford, deceased, Estate of,
As to sale of lands.
(Here follows the entry,)
And the Court adjourned.
John Lorsque, deceased, Estate of, ^ ^ i Q i fiV7
As to settlement of, ^c. )
j » •
(Here follows entry. Proceed thus from day to day until
Saturday prior to the second Monday of the month when the
Court should be adjourned without day, and the minutes, for
the term, should be signed by the Judge.)
And the Court adjourned sine die.
Edwin Rust, Judge.
PETITIONS, ORDERS, DECREES, &c.
FOR THE
PROBATE COURTS OF ALABAMA.
[ No. 1. ]
PETITION to COMPELL tlie PRODUCTION; of a ^.VILL.—Code § 1622.
State of Alabama, > o i x /-i .• ^ r^
,13 f-7 /-, , > rrobate Court or said Lounty.
Mobile Cuiodtj. 5
To the Hon. Edwin Rust, Judge of said Court :
Your petitioner, John Jones, respectfully states unto your
Honor, that Richard Rich, late an inhabitant of this county,
departed this life on the — day of , 18—, (or, as stated
in the form of the petition for p?'obate) leaving as your peti-tioner
is credibly informed, and verily believes, a last will
and testament in writing, made and executed by him, and
duly and properly attested by subscribing witnesses thereto;
in which said will your petitioner has an interest, being a
legatee therein named, as he is informed and well assured,
(or state any other supposed legal interest.)
Your petitioner states, that he is also well assured, and
credibly informed, that said will is now in the possession and
custody of one John Robb, a resident of this county ; and
your petitioner avers and charges, that said Robb, utterly
fails to produce said will, although he has been often re-quested
so to do, before this day, by the widow and next of
kin to the said testator, as well as by your petitioner.
Whereupon, and inasmuch as the devisees and legatees
interested in said will are likely to be greatly prejudiced and
18
damaged unless said will shall be produced, by ihe aid and
interference of your Honor to compel the production thereof,
your petitioner prays your Honor to cause such orders to be
made, and such process to be issued as may be necessary
and proper to cause said will to be produced in accordance
with right and justice in the premises, and the requirements
of the law in such cases, and so that said will may be duly
probated and admitted to record in this honorable Court,
and the rights and interests of the beneficiaries under said
will be fully protected. And as in duty bound, &c.
Subscribed and sworn to, &c. John Jones.
[ No. 9. ]
ORDER of Court setting a day to Lear PctitloH to COMPELL PRODUCTION
of a WILL.
JRickard Hick, dfceased, ) 19
In the matter of the Will of)
This day comes John Jones and files his petition in writ-ing,
and under oath, alleging therein, among other matters,
that said Rich departed this life in this county, on the — day
of , 18—, having in due form and in writing, made his
last will and testament before his death, which said will is
alleged to be improperly and wrongfully withheld from those
interested in it, by one John Robb, a resident of this county,
notwithstanding the request made by the said petitioner, and
by the widow, and next of kin of said supposed testator to
him, the said Robb, that he should produce said will and
allow the same to be probated in this Court : And the
Court having heard and considered the showing made in the
premises by said petitioner: It is ordered, adjudged and de-creed
that citation be issued to said John Robb, requiring
him on or before the — day of , 18—, to produce be-fore
the Judge of this Court, the said last will and testament
of the said Richard Rich, deceased.
19
[ No. 3. ]
ORDER of ATTACHMENT on fiiiUirc to PRODUCE the WILL, or to account
for the non-production tlicreof.
Richard Rich, decerned, ) ^o
In the viatter of the Will of)
And now at this day, it appearing to the satisfaction of the
Court, that the citation ordered by the decree of this Court,
rendered on the — day of , 18—, to be issued to be
served on one John Robb, requiring him on or before this
day, to produce before the Judge of this Court, the last will
and testament of said deceased, has been duly issued and
returned served on said Robb by the sheriff of this county, a
reasonable time before this day ; and the said Robb not hav-ing
at any time produced, and failing now to produce said
will, and failing, also, to make any affidavit in the premises
as required in such case, and according to the provisions of
section 1523 of the Code of this State, but being now wholly
in default and in contempt of the said former order and of
the said process of this Court: It is therefore, ordered, ad-judged
and decreed by the Court, that said John Robb be
seized and arrested and be committed to the jail of this
county, there to remain as a prisoner until he shall produce
said will, or purge himself of the said contempt by makino-the
proper affidavit, or until he shall be otherwise discharged
by due course of law; and that the proper process forthwith
issue for the purpose of carrying this decree into efiect.
20
[ No. 4. ]
ATTACHMENT of the person for CONTEMPT in failing to produce Will or
lo acconnt for non-produciion.
Mobile County. )
To any Siieriff of the State of Alabama,—Greeting :
Wliereas, it liatii been made to appear to the satisfaction
of the Judge of said Court that one John Robb, who is sup-posed
to have possession of the last will and testament of the
late Richard Rich, now deceased, has been duly cited, in pur-suance
of the order of said Court, and required, on or before
this day, to produce before the Judge of said Court the said
last will and testament : And whereas, said Robb has wholly
failed to produce said will as required by said citation, and
to show any reason for such failure, or to make any affida-vit
in the premises, as required by law in such cases : And
whereas, the said Robb has been duly adjudged by said Court
to be in contempt of the said order and process of said Court
in the premises, and hath been duly ordered by said Court
to be imprisoned for such contempt
:
You are, therefore, hereby commanded to take the body
of the said John Robb, if to be found in your county, and
him safely keep, so that he shall remain a prisoner, in your
custody, that you may have him before the Judge of said
Court on the — day of , 18—, to answer for said con-tempt,
unless before that day he shall be otherwise dis-charged
by due course of law : And have you then there this
writ, with your due return as to how you have executed the
same.
Witness, Edwin Rust, Judge of said Court, tjais the —
day of , 18—
.
Edwin Rust.
21
[ No. 5. ]
ORDER of DISCHARGE on PRODUCTION of WILL, or on making Affidavit.
Code § 1628.
Richard Rich , deceased, ) ,q
In the matter of his Will. )
Wliereas, Jolin Rq^b was heretofore, under an order and
decree made and entered in and by tliis Court on tlie — day
of , 18—, and by virtue of a process of tiiis Court issued
in pursuance of, and for the purpose of carryin<^ said decree
into effect, duly committed to jail, and there confined by the
sheriit of this county, as will fully appear, reference being
had to said process now remaining on file in this Court,
together with the sherifi^'s return thereon endorsed; and
whereas, the said Kobb has produced and delivered to the
said Judge of this Court a paper writing purporting to be the
last will of said deceased
—
{or, has made and filed his affi-davit
in writing that no paper purporting to be the will of
said deceased was ever in his possession
—
or, that he parted,
in good faith, and without any intention to defeat the probate
of said will, with the paper which had once been in his pos-session
purporting to be the will of said deceased, to one
John Wright, who was entitled to the custody thereof, before
the service of said citation formerly issued^ in the premises
:)
It is therefore, ordered, that said Robb be discharged in this
matter from the custody of the sheriff": But in as much, as,
by the default and unlawful and improper contumacy of the
said Robb, in not sooner complying with the terms of the said
former decree and citation, and the requirements of the law
in such cases, unlawful and unnecessary delays have been
occasioned, and additional expenses and costs incurred, and
other wrongs thereby done and inflicted in the premises ; It
is adjudged and decreed by the Court, that the said John
Robb do pay all costs pertaining to, and growing out of this
proceeding for the production of said will, from, and includ-ing
the filing of the petition by said John Jones, to, and in-cluding
this final decree of discharge ; and that execution
issue for the same accordingly.
22
[ No. 6. ]
PETITION for tlie PROBATE of a WILL.—7 Ala. 15.
State of Alabama, ) -. o
Mobile County. )
To the Honorable Edwin Rust, Judge of the Court of Pro-bate
of said County :
The petition of John Jones respectfully represents unto
your Honor, that the late Richard Rich, who was an inhabi-tant
of this county at the time of his death, departed this life
on the — day of -, 18—, in the City of New Orleans,
Louisiana—(§ 1621, or, late an inhabitant of New Orleans,
Louisiana, died in this county leaving assets therein
or, late
an inhabitant of the City of New Orleans, Louisiana, died
in said city, and assets of said decedent have since come into,
and are now in this county)—leaving a last will and testament,
duly signed and published by him, and attested by A. B. and
C. D. who reside in this county—(§ 1624, or, by A. B. who
resides in Cahaba, Dallas county, in this State, and by C.
D. who resides in the City of Louisville, in the State of Ken-tucky
—
or, by A. B. and C. D. who have since died
—
or, who
have since gone to parts unknown to petitioner
—
or, who
have since become insane
—
or, who have become incompe-tent
since attesting the same)—in which your petitioner, as
he verily believes, is named as executor thereof
—
{or, is
named as a devisee—o?-, is named as a legatee
or, this,
that your petitioner is interested in the estate of said dece-dent)—
which said will is herewith produced to your Honor
and propounded for probate and record in this Court.
Your petitioner further states, that the widow of said de-cedent
is Mrs. Olivia Rich, who resides in this county, and
that the next of kin of said decedent are his children : John,
who is under the age of fourteen years, and who resides with,
and is in the custody of his mother, the said Ohvia ; Thomas,
a minor, over the age of fourteen y^ars, and residing in this
county ; Johnston, who is of full age, and resides in the City
Zo
and State of New York, and Jimsey, who resides wilh liis
mother, and is of full age, but beheved to be of an unsound
mind.
In consideration of all which, your petitioner prays that a
day may be set for the hearing' of the matter of this petition :
that subpoenas niay be issued to biing in said subscribing wit-nesses
to testify on such appointed day—(§ 1625, or, that a
commission may be issued, in accordance with the statute in
sucli case made, to be directed to some suitable person re-siding
in said Louisville, to act as commissioner, to take the
deposition of said subscribing witness in proof of said will
—
or, (§ 1624) that subpoenas noay issue to bring in A. B. C. D.
and E. F. to make proof of the hand-writing of said testator,
and of said subscribing witnesses)—that due notice of this
application may be given to the said widow and next of kin
of said deceased; and that such other proceedings, orders
and decrees may be had and made in the premises, as may
be requisite and proper to effect the due probate and record
of said will according to law. And as in duty bound, &,c.
Subscribed and sworn to, &c. Joiln Jones.
[ No. 7. ]
PETITION for PROBATE of the WILL of a person who did not die in, and
who was not an INHABITANT of this State at the time of his DEATH,
and whose Will has been admitted to Probate in another STATE or
Country,—Code § 1G;30.
State of Alabama, } n \ ^ f^ ^ r^ -i ^
Mil C t \
"'°"^^^ Court or said County.
To the Honorable Edwin Rust, Judge of said Court
:
The petition of John Jones respectfully shows unto your
Honor, that Richard Rich, who was at the time of his death,
an inhabitant of Liverpool, in the United Kingdoms qf Great
Britain and Ireland
—
{nr, of the City and State of New
York)—departed this life the — day of , 18—, leaving
24
a last will, and testament made and executed by him, and
attested by A. B. and C. D. as subscribing witnesses there-to,
who
—
(stating the locality or condition of the witnesses, as
in the petition last preceding. The particular stateinent as to
locality of ivitnesses is made so that they may be reached if any
party in interest shoidd desire it for any purpose. It is, too, a
part of the proper history of the will)—and that said dece-dent
left assets in this county
—
(or, any one of the causes
authorizing jjrohate in the county, set forth in the preceding ,
petition) in which said will your petitioner is named as sole
executor thereof
—
(or, any of the facts stated in this connec-tion
in preceding pietition, ^ 1620 of Code.)
Your petitioner further states, that said will has been ad-mitted
to probate in and by the Surrogate's Court of tlie
City of New York, a Court of competent jurisdiction, for
such purposes, under the laws of said State of New York,
all of which will fully appear by. an inspection of said will
—
(§ 1630 or, a copy of said will, as the case may he,) together
with a copy of the probate thereof in said Surrogate's Court,
all duly certified as required by the laws of this State, and
which are now herewith presented.
Your petitioner further shows that the widow of said de-cedent
is Z. C. residing, &:c. (Proceed here ivith statement
as to widow and next of kin, and conclude ivith the same prayer,
as in last petition.)
[ No. 8. ]
PETITION for the PROBATE of a NONCUPATITE WIIL.—Code § 1615, 1616
and 1619.
State of Alabama, )r»i^i-i ^ c • ^ r^
TIT 1-7 /-< a } Probate Court or said County.
Moode {Joiinty. )
''
To the Honorable Edwin Rust, Judge of said Court:
Your petitioner, John Jones, respectfully shows, that on
the — day of , 18—, and more than fourteen days
since, Richard Buntline, who was then languishing under a
ZD
dangerous illness, which proved to be his last sickness, and
of which he died, in said county, two days thereafter, the said
Buntline then being at his dwelling, and being of sound mind,
a»jd fully capable of making his will
—
(or, then being at a
place where he had resided ten days or more
—
or, having
been taken sick while from his home, and died before his re-turn)—
made his last will as to certain personal {property
therein referred to, and specified in the mannei' and forn) of
a nuncupative will, by uttering the testamentary words con-tained
in the paper writing herewith presented, purporting
to be a nuncupative will of the said testator; and that said
testator died, as aforesaid, without making any other than
said nuncupative will, and without having revoked or altered
said will. And your petitioner further slates, that at tiie
time of uttering the said testamentary words, the said testa-tor
called upon all persons present
—
(or, upon A. 15. and C.
D. who were then present)—to take notice, or bear witness,
or to that effect, that what he was about to say, was his will.
Your petitioner further shows, that the persons preset)t at
the making of said will, and who can testify to, and prove
the same, were John Williamson and William Johnstone,
both of whom reside in this county ; and that on the day fol-lowing
the death of the testator, said witnesses reduced the
said testamentary words to writing, and certified and snh~
scribed the same, in form as the same now appears in said
paper writing hereto attached.
Your petitioner further shows, that said decedent left him
surviving his widow, Mary, who resides in Nashville, Ten-nessee,
and
—
(set forth the next of kin as in the forms pre-ceding)—
who would have been the only persons entitled to
distribution of said estate had the said deceased died intes-tate.
Your petitioner further shows, that the property dis-posed
of by said will, does not exceed five hundred dollars
in value, and further, that your petitioner was didy nomi-nated
to be the executor of said will. (See Code *§. 1G20.)
4
26
#
To the end, therefore, that the validity of said nuncnpa-tive
will may be fully established, and that the same may be
admitted to probate and record, in said Court, according to
the forms prescribed by law, your petitioner prays that a
day may be set for hearing this petition, and for making
probate of said will : that the said widow and next of kin of
said testator may be notified hereof, and of such day as may
be so set, in order that they may appear and contest the va-lidity
of said will, if they shall think proper, and that said
witnesses may be summoned to testify in the premises at
such hearing and to make proof of said will. And as in
duty bound, ttc.
Subscribed and sworn to, &c. , John Jones.
C No. 9. ]
F0R1I of NUNCUPATIVE WILL—See Code § 1616.
The undersigned, Abel Readywell and Caiphas Goode,
who reside in the County of Mobile and State of Alabama,
were on the—day of , 18—, at the dwelling of the late
Richard Buntline
—
{or, at a place in said county where' he
had resided ten days or more,)—in said county, who was
then ill of a disease which proved to be his last sickness, at
which time and place, the said Richard, he then being of
sound mind and disposing memory, and fully capable of
making his will, but apprehensive of his approaching death,
expressed a desire to make his will, and, with that purpose
and intent, called upon all persons present,
—
{or, "some of
the persons who were present,"
—
naming them.,)—among
whom were the undersigned, as aforesaid, to take notice, or to
bear witness, or to that effect, that what he was about to say
was his will ; and thereupon, then and there, did declare and
utter the following testamentary words to wit : (Here insert
the language of the testafar, ichich should he reduced to writing
as soon as possihl/'. after its utterance.) The unrlersig-ned
further state, that said Richard died on the morning- next after
the day on which said will was made ; and that the said will,
of which the foregoini? is a complete and accurate statement,
was reduced to writing by them on the same day the said
testamentary words were uttered, and as soon after their
utterance as the circumstances of the case would permit.
In te?^timony of all which, we have hereunto set our hands
and seals, this May the sixteenth, A. D.- 1855.'
A. Readywell,
C. GOODE.
[ No. 10. ]
ORDES APPOINTING a DAY for the PROBATE.
Richard Rich, deceased, ) -^
In the matter of the Frohate of his Will. \
This day came John Jones, and file/J his petition, in writing
and under oath, therewith producing, and filing in this Court,
an instrument of writing purporting to be the last will and
testament of said Richard Rich, deceased,
—
(or, a copy of the
last will and testament, together with a copy of the probate
thereof, in the Court of the Surrogate of the City and State
of New York, duly certified as the law directs in such cases, —see Code, § 1630,) and praying for such orders, decrees
and proceedings, as may be proper and requisite, for the due
probate and record of said will in this Court ; which said
instrument appears to be attested by A. B. and CD. of this
county, and who are alleged to have signed the same as
subscribing witnesses thereunto. And it appearing to the
Court, from said petition, that said petitioner is one of the
next of kin of said deceased
—
(or state any other fact giving
the right to propound the will.—See Code % 1620,)—that Olivia
Rich, who resides in this county, is the widow of said dece-dent
: that said decedent left four children, him survivin'a'
28
viz : John, who is under the age of fourteen years and now
in the care and custody of the said Ohvia, his mother;
Thomas, a minor, over the age of fourteen years, and a
resident of this county ; Johnstone, who is of full age and
who resides in the City and State of New York ; and Jimsey,
who is of fall age, but believed to be of unsound mind, and
who now resides with his mother, the said Olivia.
It is therefore, ordered by the Court, that the —day of
, 18—, be set as a dayfor hearing testimony in proof of
said instrument as such will. That said A. B. and C. D. be
subpoenaed to be and appear on said—day of , 18—
,
in and before this Court, to testify and give evidence of and
concerning all, and any facts touching the question of the
validity of said instrument as such will :
—
(following hoivever,
the prayer of the petition on this point, if consistent with law, as
third parties may he required to prove the hand-ioriiiiig of the
testator and ofat least one ofthe witnesses—Code% 1624-'25
—
or a commission may he necessary, to take the depositions of
witnesses, see Code § 1626.*j That said John and Jimsey
be notified of this proceeding, and of the day above set for
hearing the matter, by citation, to be served upon their said
mother, for them, at least ten days before said —^day of .
That said Olivia, Jimsey and Thomaa, also, have the same
kind of notice, and by such personal ser\Jce thereof for the
same length of time before the said day of said hearing:
That said Johnstone be notified, and brought in as a party
to this proceeding, by publicationt continued for three suc-cessive
weeks in the , a newspaper, published in this
county, a copy of which shall be sent to him post-paid,
through the public mail, and properly addressed to said
* Nothing of this kind would be required, however wlien the will is to be pro-bated
on a copy and a certified record from another State or country under ^n 1(;;]0
of the Code, as in that case, unless disputed by proof, everything is presumed
from the record.
t Strictly speaking, perhaps, no publication need be made where either the
widow or any of the next of kin reside in the State, but it is deemed better that
it should be made.—See Code ^S 1932-'33.
29
Johnstone, at said City of New York, within five days after
the first day of publication, as above ordered: That the
appointment of a suitable person to act as guardian ad litem
for said minors be postponed until said citations shall have
been duly served on said' minors, agreeable to the foregoing
terms of these present orders, for such a length of time as
shall be deemed and adjudged by the Court, to be reasonable
and sufficient for such of said minors as are over the age of
fourteen years, and for the friends and custodians of others
who are interested, and who should be represented by guar-dian,
to come in and nominate to the Court a proper person
to act as such euardian.
[ No. 11. ]
OHDER appointing GUARDIAN AD LITEM for MI\^ORS and for persons of
MIND.—See 1 Ala. R; ,38O-'904] Ala. R. Ml.
Richard Rick, deceased, ) 18 '
]n the matter of his Will. )
And it being this day fully proven to the Court, that the
publication has been made,- and notice given to the widow
and next of kin of said' deceased, as required by, and in
strict accordance with the foi'mer order of this Court, made
and entered, in this proceeding, on the—day of , 18—
,
and none of said minors, nor any other person for any of
them, or for the said Jimsey, having appeared, or in any
way signified to this Court a choice of any fit or proper per-son,
to represent them, and to attend to their interests in
this proceeding
—
(or, the icords, " and the said Thomas hav-ing
appeared and nominated Aurelius Goode, Esq., to be his
guardian ad litem in this proceeding, and the said Olivia
having also appeared and requested the Court to appoint the
said Goode to be the guardian ad litem, in this proceeding for
said Jimsey"
—
or, "and the said Thomas not having ap-peared,
nor any proper person for him, to make choice of a
guardian ad liiem to represent him in this proceeding, now
comes the said OUvia and requests the Court to appoint
AurdUus Goode, Esq., to be such guardian ad litem for said
Thomas, John and Jimsey, and the said Goode now a|)pear-ing
m open Court, and consenting to act, &,c. (The order to
notify, of course, sliotlld be omitted -when the guardian is
present.) It is now therefore, ordered by the Court, that
Aurehus Goode, Esq., be, and he is hereby appointed guar-dian
ad litem, in this proceeding, for said minors and for tiie
said Jimsey ; the said Goode being considered by the Court,
as, in every respect, a fit and proper person to attend to, and
to protect the interests of said minors and of the said Jimsey
in the matter of the probate of said will. It is further ordered,
that said Goode be forthwith notified of his said appointment,
and of the day set for hearing the testimony and proof as to
the validity of said will, that he may attend, and be prepared
properly to contest the same in behalf of said minors and of
said Jimsey.
[ No. 12. ]
ALLEGATIONS for a CONTEST of a WILL.
8late of Alabama, } t> \ 4^ n ^ f -ir-
Til I I n J J" "rebate Court or said County.
Mobile County. )
-^
To the Hon. Edwin Rust, Judge of said Court:
Your petitioner, Olivia Rich, respectfully represents, that
she is the widow of Richard Rich, and therefore, interested
in his estates:
—
(or state any other interest. Code <§, 1G34)
—
that an instrument of writing, purporting to be the last will
and testament of said decedent, has been filed in this Court,
by John Jones, with the intent and purpose that the same
shall be admitted to probate and record, in this honorable
Court, as such last will. But, your petitioner states that the
said deceased, at the time when he is alleged to have made
said supposed will, was not of sound mind, nor capable of
making- any disposition of his' estate :
—
(or, state circ^imstau-cially,
any other facts relied upon to invalidate the icill.—see
Code, § 1G34.) Wherefore, and by reason of the premises,
your |)etitionei' says that said instrument of writing- is not the
lawful last will and testament of said decedent; and prays
that an issue may be made up, under the direction of this
honorable Court, between the said Jones and herself, and
that a day may be set to try the question as to the validity
of said instrument, as such will. (If a jury is desired, add—
and that such issue may be submitted to, and be determined
by a jury, in accordance with the law in such cases.)
[ No. 13. ]
ORDER DIRECTING an ISSUE to try the VALIDITY of a WILL.
Hichard Rich, deceased, )
In the matter of his Will. 3
Olivia Rich, having filed her petition in writing, setting
'
forth that she is the widow of said deceased, and has, there-fore,
an interest in his estate, and alleging that said deceased
was not of sound mind, nor capable of making a disposition
of his estate, on the day when it is asserted that he made the
instrument of writing on file, which purports to be his last
will and testament, and which has been duly propounded by
John Jones, for probate and record in this Court ; and the
said Olivia asking, in her said petition, that an issue may be
made up under the direction of this Court, and that a day
may be set to try the validity of said instrument of writing
as such will. (If a jury is desired insert here—and that
such issue may be submitted to and be determined by a jury.)
It is ordered, by the Court, that an issue be now made up
between the said .Tones and said Olivia ; and that a jury be
summoned to be emj)an(!ll(;d in this Court, on the — day of
, lH.35,to inquire and determine whelher the said Kichard
32
Rich, since deceased, was of sound and disposing mind,
memory and understanding-, and competent to devise and
bequeath his real and personal estate on the—^day of ,
1855, in and by the said instrument of writing purporting to
be his last will and testament.
Of course the foregoiug order for an issue, must vary in eacli case, so as to
conform to the allegations of the petition for an issue. The shortest, and most
convenient mode of framing the issue, is for the i)roponeut of the supposed v\'ill,
briefly to deny the validity of the will.—Code ^ 1G34.
[ No. 14. ]
Ordinary form of TAKL\G PROOF of a WILL, 'wlicn tlic same is NOT CON-TESTED.—
Code § 1627.
State of Alabama^
Mobile
Alaba?na, } r, i . /-. ^ c in
/.J ri 1 } "robate Court or said County.
bile County. ) -'
In the matter of the probate of the last will and testament
of Richard Rich, deceased :
Before me, Edwin Rust, Judge of the said Court, person-ally
appeared, in open Court, A. B. and C. D., who having
been, by me, first respectively duly sworn and examined, did
and do depose and say, on oath, that they are each subscribing
witnesses to the instrument of writing, now shown to them,
and which purports to be the last will and testament of
Richard Rich, deceased, late an inhabitant of this county : —fstating the fact as it really may beJ—that said Rich, since
deceased, signed and executed said instrument on the day
the same bears date, and declared the same to be his last
will and testament, and that affiants set their signatures
thereto, on the day the same bears date, as subscribing
witnesses to the same, in the presence of said testator
:
(Code § 1611.) That said testator vv^as of sound mind, and
disposing memory ; and, in the opinion of deponents, fully
caj)able of making his will, at the time the same was so
made, as aforesaid. Affiants further state that said testator
was, on the day of the said date of said will, of the full age
of twenty-one years and upwards. (If the will he of personal
property only, it is sufficient to say, that the " testator was
over the age of eighteen years.") A. b.
Subscribed and sworn to, &c. c. d.
If the witnesses are sworn at different times, they may, if it is consistent with
their separate statements, sign the same aftidavit, the Judge certifying the oaths
severally, according to the date, when they are each sworn.
[ No. 15. ]
CERTIFICATE to be ENDORSED on a WILL, upon PROBATE thereof.
Code § 1638.
State of Alabama, ) . •
Mobile County. )
I, Edwin Rust, Judge of the Court of Probate, i"n and for
said County and State, do hereby certify, that the within in-strument
—
(or mslYwmenis, if there is a codicil,)—of writing,
has (have,) this day, in said Court, and before me, as the
Judge thereof, been duly proven, by the proper testimony, to
be the genuine last will and testament,—(and codicil thereto,
if there is a codicil,)—of Richard Rich, deceased; and that
said will, (and said codicil) together with said proof thereof,
have been recorded in my office, in Book of Wills, No. 2,
pages 104 and 105.
In witness of all which, I have hereto set my hand, and
the seal of the said Court, this May fourteenth, 1855.
Edwin Rust.
This form of endorsement, will answer for nuncupative wills ; wills admitted
to probate upon contestation, and wills probated under § 1630 of the Code, as
well as for ordinary cases. In case of a contest, the proof to be recorded would
be, properly, the affidavits of the subscribing witnesses : the issue submitted,
the verdict and the judgment thereon rendered.
84
[ No. 16. 3
SUBPIENA for WlTMSSEl '
State ofAlabama, )
p^.^^^^^^ ^^^^^ ^^.^^.j ^
Mobile Count?/. 3
To any Sheriif of the State of Alabama, Greeting:
You are hereby commanded to sdmtnon , to ap-pear
in and before the Probate Court, to be held for Mobile
County, at the Court House in the City of Mobile, on the —
day of , 185—, to give evidenc.e in a certain matter now
pending in said Court, wlierein
—
(state the nature of the pro-ceedings,
and u'ho is, or are the parties instituting- the proceed-ings
and icho are to be called in to litigate with him)—and
this you shall in no wise omit, under the penalty prescribed
by law. Herein fail not, and have you then this writ at the
office of the Judge of said Court.
Witness, Edwin Rust, Judge of said Court, at office, this
— day of , 18—
.
Issued on the — day of in the year of our Lord, 18-t-.
Attest
:
, Judge.
[No. 17. ]
COMMISSION to take TESTIMONY.—Code § 2320. et seq.
Btaie of Alabama, )t»i,/>. ^ e -jz-i M W C f X
"'*0"^^^ Court or said County.
-, Escp's.—Greeting:
In the matter of) To ,
Know ye, that we, in confidence of your prudence and
fidelity, have appointed you, and by these presents, do give
you, or any one of you, full povi^er and authority to examine
~ , as a witness, in a cause or proceeding now
depending in our said Court, entitled as is set forth in the
caption hereof. And therefore we command you, or any one
of you, that you do cause the said — , to came
35
before you, or either of yon, and then and there examine
* , oil oath as a witness in the cause aforesaid^
(If there are interrogatories, add to the last sentence, the
words,—upon interrogatories annexed, or, upon the annexed
direct and cross-interrogatories.) And that you, or either of
you, do take such examination, and Cause the same to be re-duced
into writing-, and return the same annexed to this writ,
closed up under your seals, or the seal of any one of you,
into our said Probate Court, with all convenient speed.
Witness, Edwin Rust, Judge of our said Court, at office,
this — day of , A. D. 18.5—
.
Attest
:
'
^ ., Judge.
(If the ' witness is to he examined without interrogatories.
Code % 2319, add the folloimng:) Let or his attorney
have days notice of the time and place of executing
this commission. , Judoe.
For general directions as to evidence in the Probate Court, see Code $ '682.
The reference in this section is to what is contained between pages 424 and 434,
of the Code, inclusive.
There are various provisions in the Code and in the Statutes, besides those
referred to at the commeucehienfi of the above form, authorizing the taking of
depositions, which it is hardly necessary to refer to here, inasmuch as they will
not be called into requisition except when the provisions are alluded to for other
purposes.'
C No. 18. ]
FORI of CAPTION to DEPOSITION.
In the matter of ^ By virtue of the commission hereto at-fHere
state the names of > tachcd, and which isSUCd frOm the Pro-parties
and the matter in I
/» i • r^
question-briefly.] ; bate Lourt of Mobilo County, in the
foregoing stated matter and proceeding, and in which said
commission, I am named as one of the commissioners, I have
caused the witness named in said commission, and who is
known to me, to come before me at the times and j)laces
hereinafter named, and the said witness having been first
36
duly sworn by tne, did testify and depose as follows to wit :
—
{Here folluws the testimony, only commencing the depotsiilon of
each icitness as follom : "I caused
(naming the ivifness)
one of the witnesses aforesaid to come before me at
—
(naming
the place)—on the
—
(naming the time.ichen)—and said
(naming the icitness)—then and there testified as follows,
viz :
—
(If there are no interrogatories proceed at onceivith the
Ustimony ; if there ctte interrogatories, preface each answer of
the icitness, thns: In atjswer to the first interrogatory, he
says: In answer to the second interrogatory, he says : and so
on through the direct interrogatories. If then there are cross-interrogatories
proceed thus: In answer to the cross^interro-gatories
said
—
(name the icitness)—answers as follows, to wit
:
to the first cross-interrogatories, he answers, &;c.,
—
and so
on through the cross-interrogatories.
After getting through irith the testimony of all the witnesses
the commissioner should append the following form of certifi-cate
:
I, , one of the commissioners named in the
commission hereto attached, and acting under and by virtue
of said commission, which issued from t!:e Probate Court held
in and for the county of Mobile, and State of Alabama, in a
certain matter and proceeding, pending in said Court, entitled
as is set forth in the commencement of the foregoing deposi-tion,
do hereby certify that I caused
—
(here name the witnes-ses)—
to come before me at the times and places respectively
hereinbefore named, that the said witnesses were, and each
of them was duly sworn by me, that they severally testified
as it is hereinbefore set down, that the testimony of said wit-nesses
was by me—(or see Code § 2322) reduced to writing,
and that each of said witnesses subscribed his name to his
own testimony in my presence after the same had been first
read over to him by tne ; that said depositions are by me en-veloped,
together with all documents which have been deposed*
37
to by said witnesses, the whole to he sealed and directed by
me to the Jiidge of said Court, with the title of said matter or
proceeding thereon endorsed. , [seal.]
Commissioner.
Directions to Commissioner.—Above you will find form of caption, cei'tificate,
(fcc, to be used where tbere is more than one witness. If only one witness is
Darned it will be easy to alter tlie forms accordingly. In putting your seal to
your certificate you cau use either wax or wafer, or a mere scroll of the pen, as
you may choose. If any time and place for taking the testimony has been
named in the commission, the testimony must be taken at tbat precise time and
place. If, however, in such a case the examination is commenced on the day
appointed, and cannot be completed, it may be continued on the next day (but'
between the same hours, if any are named) and so on, from day to day, till
completed. In such a case your certificate should show the facts, and circum-stances
attendmgthe adjournment, ^recommencement, continuation and close of
the examination. In case any paper should be referred to by a witness in his
examination, which is to be returned to Court with his evidence, such paper
should be marked by you in some way to designate by What witness it is refer-red
to, &c. In case any witness has conscientious scruples about taking an
oath, it wiU answer to let him affirm, and your certificate may be altered ac-cordingly.
When the witnesses have all been ex^rained„all the papers should be attached
together with tape, or riband, and the whole enclosed in an envelope, sealed up
in such a manner that it cannot be opened without breaking the seals. Across
the seal you should write your name or names. The package should then be
endorsed with the title of the matter or proceeding in which examination has
been had, and the names of the witnesses examined. The whole may then be
directed to the Judge of the Court from which the commission issued. You
must deposit the package in the post office, with your own hands, and, either
yourself certify that fact, and the date on the outside, or else get the postmaster
to state, in writing, on the outside, that it was received by him, from you, and
the date of its receipt. You will bear in mind also, that the postal laws now
absolutely require a pre-payment of postage.
[ No. 19. ]
NOTICE to party opposed in interest of the fact of filing INTER-ROGATORIES.—
Code § m^.
^f^l^^f^^^^'J'"'^ ] Probate Court of said County.
Mohile County. ) •'
To or : , his Attorney, Greeting :
Please to take notice, that in the foregoing stated cause
or matter, pending in said Court, interrogatories to be pro-pounded
in behalf of to examine as a witness,
have been this day filed in my office : which said interroga-tories
will remain on file as aforesaid, ten davs after service
38
of this notke upon you, during whi'ch time yqfu can fife cross-interrogatories
if you think proper. • • '
Witness, Edwin Rust, Judge of said Coui,'t, at office, this _ day of , A. D. 185—
.
Attest
:
,
', Judge.
[ No. 30. ]
A convenient form. of RENUXCIilTION of the right to EXECUTE a WILL,
under section 1662 of the Code, to k presented to the Judge, hy the
EXECUTOR in perj5on.
State of Alabama, )
Mobile County.I' 5
To. the Hon. Eduin Rust, Judge of Probate of said County:
I, John Jones, the person named in the last \vill and tes-tament
of Richard Rich, deceased, to be the executor,
—
(or,
one of the executors) thereof—which will has been probated
and recorded in said Court, do hereby renounce the office
and trust confided to me, in and by said will, and all right
to letters testamentary upon the same, and pray that this,
my renunciation, may be duly entered of record.
John Jones.
If the person so renouncing, Is absent from the county where the probate is
made, the foregoing renunciation should be attested, as required by the latter
clause of $ 1662 of the Code.
[ No. Ql. ]
ORDER proper to he made, on such RENUNCIATION being filed.
Richard Rich, deceased, >
In the matter of the Execution of the Will of.)
John Jones, who was nominated and appointed by said
testator, to be the executor,
—
{or, one ofthe executors)—of his
last will and testament, having duly renounced all right and
claim to execute said will, and in writing, filed the same
{or^
39
if Old 6f the county,—"caused the same to be duly attested
and fil^d in writihg,")—if) this Court. It is ordered by the
Court, that said renunciation be recorded, as required by
law, which is accordingly done—and said- renunciation is in
the words and figures following, viz : (Here folloivs the
record.) .
'
',
•
[ No. 2J3. 3 .
PETITION PROPOUNDING for PROBATE a WILL DISCOVERED after
Administration commenced.—See Code § IW-'fl
To the Hon. Edwin Rust, Judge of the Probate Court, in and
for the County of M9bile, and State of Alabama :
The petition of John Jones, respectfully shows, that hereto-fore,
to wit : on, or about the— day of , 185—, Richard
Rich, who was then, and had been theretofore a resident of
said County, departed thi^ life, as was then supposed by your
petitioner, and by those believed to have been best acquainted
with his alFairs, without having made any testamentary dis-position
of his property: and your petitioner, so believing,
at the request of Mrs. Olivia Rich, the widow of said dece-dent,
and under and by virtue of the order and due appoint-ment
of this honorable Court, made and entered on the—
day of , 185—, became the adminstrator of the estate of
said deceased—which said administration of your petitioner
is, at this time incomplete, and still remains unsettled in this
Court,
Your petitioner further states, that it was not known,
until sometime subsequent to the death of said Richard, and
not until after your petitioner had obtained authority from
this Court, as aforesaid, to administer upon said estate, that
said deceased had left any such will. Your petitioner further
states that such will was discovered as follows, viz : The
said Olivia, who is totally unable to read writing, about the
40
-—day of , 185—, handed to your petitioner a bundle, or
mass of papers, which, she said, had belonged to said de-ceased,
in his lifetime, and requested petitioner to exam-ine
them, and see if there was anything of value among
them. Petitioner states that he accordingly examined said
papers, and that during said examination, and among said
papers, he found the said written document, purporting to be
the last will and testament of said deceased. And now, your
petitioner states that said document, purporting to be such
will, has, ever since the same was, so discovered, as aforesaid,
continually remained in his possession and under his con-trol,—
your petitioner being, as he humbly conceived, the
rightful custodian of such paper, in as much as he is therein
named by said testator as the sole exe'cutor thereof, and has
no other interest in the same. (See Code >§) 1620.)
Your petitioner
—
(Here state the heirs as in case of the pe-tition
for the probate of an ordinary written iirill, which is
brought into Court under ordinary circumstances.*
)
Your petitioner further states, that A. B. and C. D. whose
names appear affixed to said instrument, as subscribing wit-nesses
to the same, have departed this life since the day on
which said instrument bears date ; but your petitioner is ad-vised
and is well assured that, by testimony of various credi-ble
and respectable persons, he can amply and sufficiently
prove the death of said witnesses, and that the hand writings
of said witnesses and of said testator, as their names are res-pectively
subscribed to said will are the true and genuine"
signatures of each of the above named parties, as, also, other
facts and circumstances strongly tending to show that said
Instrument is in reality and truth, the last will and testament
of the said deceased.
Subscribed and sworn to, &c. John Jones.
*The cpncludiiig prayer for probate, &c., to be the same as in the petition
here referred to.
41
[ No. 33. ]
Final ORDER for PROBATE of WILL.
Richard Rich, deceased, ^
In the /naffer ofthe Pruhafe of > 18
his last Will ami Testament. )
This day having been regularly appointed for heauing
the application of John Jones, which was heretofore filed in
this Court, for the probate of an instrument, (or, if there
he a codicil, one or more, say, ^'instruments^'' ) of writing
purporting to be the last will and testament (and codicil
thereto) of said deceased, now comes the said applicant, and
also comes Aurelius' Goode, Esq., who was heretofore, duly
appointed, by the order of this Court, and who now consents
to act as the guardian ad litem for John and Thomas Rich,
who are minors, and for Jimsey Rich, who is alleged to
be of an unsound mind, all of whom are children and heirs
of said deceased; and it appearing to the satisfaction of the
Court, that the notice of the said application and of the time
appointed for hearing the same, has been given in pursuance
of law, and in strict accordance with the former order of this
Court, made and entered in the premises, on the—day of
, 18—, by publication, continued for three successive
weeks in the , a newspaper published in said county,
and by citations personally served, as directed in said former
order, now, on motion of said John Jones, the Court proceeds
to hear said application. And it appearing to the satisfaction
of the Court from the testimony of A. B. and C. D., that they
respectively signed the said instrument, (or, instruments) of
writing, purporting to be the last will and testament (and
codicil thereto) of the said decedent, and which writing is
now shown to them, on the day of the date thereof, in the
presence of said testator, and at his request, as subscribing
witness to the same, the said testator then declaring, that
6
42
said instrument (or, instruments,) constituted his last will,*
(and codicil,) and it bein^ also shown, by proof which is sat-isfactory
to the Court, that said testator was of the full age
of twenty-one, (or if the idll hlates only to pei'sonalti/, " was
of the full age of eighteen") years and ujawards, at the time
of making said will ; and that he was of sound mind, and
fully capable of making his said" will : (or, if the probate is
made under the Code ^ 1630, after the words in this form,
" the Court proceeds to hear said application,^^ use a form
something like the following, viz: "And it being made to
appear to the satisfaction of the Court, by due proof, that
said testator was not an inhabitant of this State, at the time
of his death: that his will, with the codicil thereto, has been
duly probated in and before the Surrogate's Court of the City
and State of New York; and the said John Jones having
heretofore produced and filed in this Court the said will, and
codicil
—
or, a copy of said will and codicil, as the case may
Je—and the probate thereof, in all respects, duly certified by
the proper officers of the said Surrogate's Court) it seems to
the Court that said application should be granted : It is,
therefore ordered, adjudged and decreed, by the Court, that
said will (and codicil
—
or, that said copy of said will—and
codicil) of said Richard Rich, deceased, be received, and the
same is hereby declared to be duly proven as the last will and
testament of said decedent, and as such, admitted to probate,
* If the icitnesses are, dead. Sec, see Code § ]624-'25, omit tchat occurs in the
foregoing form after the irords, " and it appearing to the satisfaction of the Court
from the testimony of A. B. and C. D., " doicn to and including the words" then
declaring that said instrument constitutes his last will—and in place thereof, in-sert
the icords following, viz : " that E. F. and G. H. who were subscribing wit-nesses
to said will, have departed this life since the date of said will, (or, that
that they are insane, or, out of the State, or, have become incompetent «ince
the said will appears to have been attested,) and that their signatures thereto,
(or, and having also proven that the signature of E. F., one of said subscribing
witnesses, together with the signature of the said testator, are the true and gen-uine
signatures of the said E. F. and of the said decedent.") It would also seem
that in the case supposed by this note, the icords, " and that he was of sound mind
and fully capable of making his last will," might be dispensed with, as all presump-tions
are in favor of the validity of the icill ; and the mental condition of the tes-tator
at the time of making the icill, might be impossible of proof, where the wit-nesses
are dead, or when, from any other cause, their teslimcny can not be taken.
43
and ordered to be recorded, together with the proof thereof,
and all other papers on file relating to this p;:of:eeding. It
is further ordered, that said applicants pay. the costs of this
proceeding." >
[ No. Q4. ]
Form of ORDER where a WILL is DISCOVERED and admitted to PROBATE,
after GRANT of LETTERS, in case the EXECUTOR named in the WILL
fails to apply for Letters.
Richard Rich, deceased, ") , ^o
In the matter of his Estate and Will. )
Letters of administration, as in case of intestacy, having
heretofore been granted by this Court, upon the estate of
said decedent, to John Jones ; and the last will and testa-ment
of said decedent having been duly established and ad-mitted
to probate and record in this Court, since the said
grant of said administration, and more than five full days
before this day; and Olivia Rich, the widow of said deceased,
and who is named in said will to be the sole executrix thereof,
not having at any time appeared and taken out, or applied
for letters testamentary upon said will ; therefore, and that
the said will of said testator may be well and truly performed
according to its true intent and meaning : It is ordered,
adjudged and decreed, by the Court, that a copy of said will
be, and the same is hereby annexed to the said letters of
administration, heretofore granted by this Court to said Jones
;
and he, the said Jones, is hereby enjoined, as such adminis-trator
with the said will so annexed, to execute and perform
said will in all things, according to the terms thereof, and as
the law in such cases requires.
44
[ No. 25. ]
PETITION ofEXECUTOR for LETTERS TESTAMENTART,after the REMOTAIi
of former DISABILITY—the estate having heeii PARTIALLY AD311J1IS-TERED,
in the meantime, by another.—See Code § IGaS, 1660 and 1661.
State of Alabama, )
p^^^^^^ ^^^^^^ ^^^,^-^ ^^
Mobile County. )
''
The petition of John Jones, respectfully showeth unto your
Honor, that he is of the full age of twenty-one years and up-wards
: That in and by the will of Richard Rich, deceased,
which has been heretofore admitted to probate and record in
this honorable Court, he is nominated as the sole executor,
(or, as one of the executors) thereof, and that he, petitioner,
was unable to obtain letters testamentary upon said will, by
reason of his nonage, until after the — day of , 185—
,
that being the period when letters of administration upon the
estate of the said Richard, with the said will thereto annexed,
were granted and issued by this Court to Amand Figh, (or,
the period when letters testamentary upon said will were
issued by this Court to Amand Figh, who is named in said
will as co-executor thereof, with your petitioner, and who has
not, as yet, completed the administration of said will.)
Your petitioner, therefore, prays that supplementary let-ters
testamentary upon said will, may ba issued to him, in
the same manner as the said original'letteis were issued, so
that your petitioner shall be authorized to join with the said
Figh in the further execution of said will. ^
And your petitioner offers A. B. and C. D., of this county,
as securities, believing them to be good and sufficient as such
securities, in any bond that may be required of him. And
as in duty bound, &c.
Subscribed and sworn to, &c. John Jones. '
45
[ No. 36. ]
ORDER to cite PREVIOUS EXECUTOR or ADMINISTRATOR to SHOW CAUSE,
if any there be, why the foregoing petition should not be granted.*
Richard Rich, deceased, ) - IQ
As to the execution of his Will. )
Letters of administration upon the estate of said diecedent,
with his will thereto annexed
—
(or, letters testamentary
upon the will of said decedent)—having been heretofore
granted to Amand Figh, this day comes John Jones, and
files his petition in writing and under oath, alleging that he
is now entitled to participate in the execution of said will, and
praying that supplementary letters testamentary upon said
will, may be issued to him, upon his giving the proper secu-rity,
so that he may be authorized to join with said Figh in
the execution of said will, so far as the same now remains
unaccomplished. And the Court deeming it meet that the
matter of said petition should be inquired into. It is ordered,
that Monday, the — day of , 185—, be, and that day
is hereby set as a day for the hearing of said [)etition. It is
further ordered, that said Figh, have notice of the filing of
said petition, by service of citation, at least ten days before
the said — day of , requiring him to make answer and
objection, if any he has, to the allegations and prayer of said
petition.
*This course of proceeding is not required by the words of the Code; but it
does uot seem proper, that an executor or administrator should have an associate
forced upon him, without a day in Court to show cause against such step, if any
cause may happen to, exist.
46
. • [ No. 27. ] .
ORDEEfor SUPPLE}IE\TARY LETTERS, ji)iiiiflg an EXECUTOR with an
AMIXISTRATOR or EXECUTOR previously qualified.—See Code § J661.
Richard Rich, deceased, > ^r^
As to the execution of his Will, )
•
This day came Amand Figli.
—
(designate him as executor or
administrator in accordance with the fact stated in the foregoing
forms)—in obedience to citation issued and served, in accord-ance
witli tlie order of this Court, made and entered in the
premises, on the — day of , 185— : (or, " and, now at
this day, it being shown to the Court, that Amand Figh
(describe him as directed above)—has been duly cited, in
strict pursuance of the terms and provisions of the order of
this Court, made and entered on the — day of , 18—:)
and the Court having heard and considered the evidence,
this day submitted by John Jones, in support of his petition,
heretofore filed in this estate, to be authorized to participate
in the future administration of the will of said testator as the
^ole executor
—
(or, " as one of the executors") therein
named, and being now fully satisfied, from such proof, that
said Jones is now of the age of twenty-one years and upwards
—(or, is now an inhabitant of this State
—
or, any other fact
under § 1661 of the Code)—and thathe was prevented from
qualifying as executor of said will, not from any willful de-fault
of his own—(see § 1663,)—but because of his nonage
—
(or any other legal disability)—at the time when said letters
were granted to said Figh ; and the Court being further sat-isfied,
from the proof, that the administration of said will is
not now completed, and also, from an inspection of said will,
that said petitioner was nominated, in said will, as executor
—(or, as one of the executors)—thereof, and that the peti-tioner
is a fit person (§ 1657) to serve as such executor
;
and the said Jones having filed the proper bond, as an exe-cutor
of said will, in the sum of dollars, which is
the amount of bond given by the said Fighj and upon which
47
he obtained the said original letters ; and the said Jones
having given A. B. and C. 1>.^ as his sureties in and to said
bond, and who have been approved as good and sufficient
sureties, in the premises, by the Judge of this Court: It is
ordered, adjudged and decreed, by the Court, that supple-mentary
letters testamentary upon said will, do forthwith
issue to said John Jones, so that the said Jones, shall be, and
he is hereby authorized and directed to join with the said
Figh, in the further and complete execution of the provisions
of said will.
• [ No. Q8. ]
Ordinary PETITION for LETTERS testamentary upon a WILL.
State of Alabama, ) „
Mobile Count//. I
^^
To the Honorable Edwin Rust, Judge of the Court of Pro--
bate of said County :
Your petitioner, John Jones, respectfully represents unto
your Honor, that he is the person who is named in the will of
Richard Rich, deceased, to execute the trusts and purposes
thereof, and that said will has been duly proved and admitted
to record in this Court.
Your petitioner begs to refer to the petition which was
filed in this Court, for the probate of said will, for a correct
statement "as to the present residence of the widow of said
testator, together with the names, ages, residences. srnd con-ditions
of the next of kin, heirs and legatees of said testator,
so far as the same are known to him.
Your petitioner, further states, that he is of the age of
twenty-one years, and upwards; that he is an inhabitant of
this State, and is now wilhngto take upon himself the tiusts
intended to be confided to him by said testator, and rhat he
is prepared to give the necessary bond and security, as your
48
Honor shall direct and require. He further states, that, to
the best of his knowledge and belief, the value of said estate,
including both real'and personal property of all kinds, does
not exceed about the sum of dollars.
May it please your Honor, therefore, to permit your petiti-oner,
to qualify in this Court, as the executor of said will, as
was the intent of said testator. And as in duty bound. Sec.
Subscribed and sworn to, &c. John Jones.
[ No. 29- ]
•
OrdiQary form of a DECREE, granting LETTERS TESTAMENTARY.
Richard Rich, deceased, Estate of,) jo
Grant of letters on his Will. )
It being known to the Court, that the last will and testa-ment
of said decedent has been duly admitted to probate
and record in this Court,
—
fif the probate of the will has
been contested, see Code § 1888, subdivision 1 and § 1694, and
proceed as follows, viz: more than thirty days since, and that
no appeal thereof, hath been taken ;) and that John Jones,
is named, by said testator, in said will, as the sole executor
thereof; and the Court being further advised, that the entire
estate of the said testator, is of the value of about
dollars, and not probably more ; now comes the said John
Jones, and files his petition, in writing, and under oath, set-tino"
forth, among other matters, his estimate of the value of
said estate, as also, the names, ages, residences and condi-tions
of the widow and next of kin, heirs and legatees of said
testator, so far as he knows the same, and praying that he
may have letters testamentary upon said will, duly issued to
him, by, and from this Court. And the said John Jones,
having given bond in the sum of dollars, with such
condition thereunder written as the law directs in such cases,
iwith •
J and — , as his securities therein,
which bond hath been duly taken and approved by the Judge
49
of this Court : It is ordered, adjudged and decreed, that
letters testamentary be, and tlie same are hereby granted to
the said John Jones, upon said testament, the said letters to
be forthwith issued, in accordance with the terms of said
will : It is further ordered, that said petition, and said bond
be recorded: It is further ordered, that an appraisement
be made of the estate of said testator, and returned, as re-quired
by law ; that A. B., C. D. and E. F., be, and they are
hereby appointed appraisers, to make such appraisement,
and that they have notice of this appointment.
[ No. 30. ]
Form of BOND framed to suit tiie cases of EXECUTORS, ADMINISTRATORS
and GUARDIANS.
State of Alabama, } n i ^ r< * f •
i n^.,v,<.,r ,, 7 •, /7 , > Probate Court or said County.
Mobile County. 3
Know all men by these presents, that we,
, of the county of , are held and firmly
bound unto Edwin Rust, Judge of the Probate Court, in and
for the county of Mobile, and his successors in office, in the
sum of dollars, to be paid to the said Judge, or his
successor in office ; to which payment, well and truly to be
made, we bind ourselves, our heirs, executors and adminis-trators,
jointly and severally, firmly by these presents.
Sealed with our seals, and dated the — day of , in the
year of our Lord, eighteen hundred and .
The condition of the above obligation is such, that
whereas, the above bound , has been duly ap-pointed
administrator, (or, administrator with the will an-nexed)
of the estate of A. B., deceased, (or, executor of the
last will and testament of A. B., deceased
—
or, special ad-ministrator
with power hmited to the collection and preser-vation
of the estate of A. B., deceased
—
or, with power limi-ted
to the defence
—
or, prosecution—a^ the case may he—of
7
50
a suit in Chancery in the First District of the Southern
Chancery Division of the State of Ahihama, wherein C. D.
is complainant and E. F. and others are defendants, and pro-perly
to dispose of the results, if any, of such litigation*
—
or, guardian of the person and estate of C. D., an infant, of
this county
—
or, guardian of the person and estate of C. D.,
of this county, who has been found to be lunatic by due in-quisition
—
or, guardian of the property in this State of A.
B., an infant, who has estate in this county, but who is a
non-resident of this State
—
or, guardian of the property in
this State of A. B., who is a non-resident, and who hath
been duly found to be lunatic, by a competent tribunal in the
State of South Carolina, where he resides.)
Now, if the said , shall well and truly perform
all the duties which are or may be by law required of him as
such , then the above obligation to be void, otherwise
to remain in full force.
Taken and approved, — day of ^ , [l. s.]
, A. D., 18—. V , [l. s.]
, Judge. ) , [l. s.]
[ No. 31. ]
ORDER setting aside first, appointment and appointing new APPRAISERS.
It will be seen, by consulting the sections of the Code, to which reference
has been made in this connection, that the Appraisers are to be appointed by
the Judge, at the time he grants the letters. It may sometimes occur, that the
parties in interest, from some reasonable motive, may desire that a different
set of Appraisers should be appointed.—(See Code § 1733.) In such case pro-ceed
as follows
:
Richard Rich, deceased, Estate of, >
As to Appraisers. )
This day came John Jones, executor of the last will and
testament (or, administrator of the estate) of said decedent,
and moves the Court to revoke the order made in this estate
* This is one of those special administrations which is frequently required for
the conduct of a suit, either as plaintiff or defendant, but not necessary for any
otljer purpose, the forms, for obtaining which, will be found at the proper place.
61
on the — day of , 18—, so far as the same relates to
the appointment of A. B., C. D. and E. F. to be the apprais-ers
of said estate, and that the Court do now appoint G. H.,
I. J. and K. L. to be such appraisers, in the place and stead
of said A. B., C. D. and E. F. And it being shown to the
Court that the object of said motion is to save expense (or
any other benefit to the estate^ or great convenience to the par-ties)
to said estate, inasmuch as the said G. H., I. J. and K.
L. propose to perform the duty of appraisers to said estate
free of charge; and it being further shown to the Court,
that said G. H., I. J. and K. L. are entirely disinterested,
and are fit and competent persons to make such appraise-ment
: It is ordered, that said appointment of said A. B., C.
D. and E. F., be, and the same is hereby revoked and set
aside ; and that the said G. H., I. J. and K. L., be, and
they are hereby appointed to make an appraisement of said
estate ; and that they have notice of this appointment.
[ No. 33. ]
ENTRY upon the Minutes upon tlie coming in of the INVENTORY or
APPRAISEMENT.
Richard Rich, deceased,
Estate of.
This day came John Jones, the executor of the last will
and testament (or, the administrator of the estate) of said
decedent, and presents his inventory (or, appraisement) of
said estate, in due form, and properly verified : It is ordered,
that the same be filed and recorded.
52
[ No. 33. ]
Entry npon the Minntes on filing a SUPPLEMENTAL INTENTORY.—Code
§.17il-'i2-'33.
Richard Rich, deceased, )
Estate of. y
This day coraes John Jones, the executor of the last will
and testament (or, the administrator of the estate) of said
decedent, and, in due form and under oath, presents a sup-plemental
inventory of certain property of said estate which
has come to his knowledge, (or, possession, as the case may
he,) since he made and filed his former inventory in this es-tate
: It is ordered, that said supplemental inventory be filed
and recorded; and that A. B., C. D. and E, F., who were
heretofore appointed to appraise said estate, be authorized
and directed to appraise the property mentioned in said sup-plemental
inventory.
If new appraisers should be appointed, the language of the original appoint-ment
will apply.
[ No. 34. ]
NOTICE to APPRAISERS.—As to appointment of, see Code § 1727.
State of Alabama, > tj i . /-.
Tir i-i n J t Probate Court.
Mobue County. )
John Bonte, deceased, ) To A. B., C. D. and E. F.
:
Estate of. 5 You are hereby notified that let-ters
testamentary, (or, of administration) have been this day
granted to Archelaus Bonte, on said estate, (or, upon the
last will and testament of said deceased,) and that you have
been appointed appraisers of said estate.
Witness, my hand at ofiice, this — day of , 18
—
Edwin Rust, Probate Judge.
53
[ No. 35. ]
PETITION for LETTERS TESTAMENTARY, where' the WILL EXEMPTS the
EXECUTOR from BOND and SECURITY, and when one of the EXECU-TORS
renounces.—Code § 1685.
Sfate of Alabama, }
Mobile County.
To the Hon. Edwin Rust, Judge of the Probate Court of
said County :
The petition of John Jones respectfully shows unto your
Honor, that he, together with Mary Rich, the widow of said
testator, was duly nominated and appointed in, and by the
terms of the last will and testament of Richard Rich, de-ceased,
which will has been heretofore duly proved and ad-nsitted
to record in this honorable Court, to be one of the ex-ecutors
thereof..
For the names, ages, residences and conditions of the
next of kin of said testator, your petitioner begs leave to re-fer
to the statenient contained in the petition which was
filed in this Court, for the probate of said will.
Your petitioner further states, that the said Mary Rich,
who is the only other person named as executor in said will,
has declined to qualify; and that she has, accordingly, had
her renunciation of said trust, duly certified to your Honor
—
which renunciation and certificate is now herewith submit-ted
(or, if she appears personally in Court, proceed thus, and
the said Mary appears before your Honor, with petitioner,
and now, here in open Court, tenders her renunciation of
said trust, in such form as may be required by law, and the
rules of this Court in such cases juade.)
Your petitioner further states, that he is of the age of
twenty-one years and upwards, and that he is an inhabitant
of this State.
Wherefore your petitioner prays that he may be con-firmed,
by the order and decree of this Court, in his said
nomination and appointment by said testator, as executor of
said will. In making such order and decree, your petitioner
54
prays your Honor to inspect the terms and requirements of
said will, inasmuch as he is advised and believes that he is
thereby exempted from giving bond and security as such
executor thereof And your petitioner as in duty, &c.
Subscribed and sworn to, «fcc. John Jones.
[ No. 36. ]
GRANT OF LETTERS TESTAMENTARY, without BOND, one of llie EXECU-TORS
named in the WILL having RENOUNCED—Order of APPRAISE-MENT
and Appointment of Appraisers.—Code § 1727.
Richard Rich, deceased, Estate of,
Grant of Letters Testamentary.
It being known to the Court that the last will and testa-ment
of said decedent has been duly proven and admitted to
record in this Court; and that Mary Kich, oneof the executors
named in said will, has, this day, duly renounced such ap-pointment
; and, it appearing to the Court, from an inspec-tion
of said will, that said testator, hy an express provision,
in his said will to that effect, did exempt, his executors,
therein named, from giving any bond, as such ; now comes
John Jones, the only other person named in said will as an
executor thereof, and files his application in writing, pray-ino-
that letters testamentary, upon said will, may be duly
issued to him : It is, therefore, ordered and decreed, that
letters testamentary, upon said will, be granted to said John
Jones; and that said letters issue without bond or security
being required, in accordance with the terms of said will, and
agreeably to the provisions of the law in such cases made.
It is further ordered, that an appraisement be made of the
estate of said testator, and returned, as required by law
;
that A. B., C. D. and E. F., be, and they are hereby ap-pointed
appraisers, to make such appraisement, and that
they have notice of this appointment.
It is further ordered, that the petition of said John Jones,
filed in this behalf, be recorded.
55
[ No. 37. ]
NOTICE of his Appoinliiieul to be iUBLlSllED by EXECUTOR or ADMIN-JSTRATUR.—
See Code § ITU-'U-'U.
Richard Rich, deceased, )
' Estate of. \
Letters testamentary upon the last will and testament (or,
letters of administration upon the estate) of said decedent,
having beeti -granted to the undersigned, on the — day of
, 18—, by the Honorable Edwin Rust, Judge of the
Probate Court of Mobile county—notice is hereby given,
that all persons, having claims against said estate, will be
required to present the same within the time allowed by
law, or that the same will be barred.
John Jones.
[ No. 38. ]
ORDER requiring an INVENTORY to be RETURNED, or that the Adminis-trator
snow CAUSE why an ATTACHMENT should not issue, or why he
should not be REMOVED.—Code § 671, § 1696.
Richard Rich, deceased, Estate of, )
As to Inventory of. )
It being known to the Court that John Jones was duly
appointed in this Court, and that he qualified as the admin-istrator
of the estate of said intestate more than two months
since; and it appearing to the Court, from an inspection of
the records and papers on file in this estate, that said admin-istrator
has failed to file an inventory of said estate, as re-quired
by law : It is ordered, that citation issue, to be served
on said Jones, requiring him to be and appear in and before
this Court on the — day of , 18^—, to file such inventory,
or to show cause, if any he can, why an attachment should
not be issued against him (or, why he should not be re-moved
and his letters be revoked, if such a course is desi-rable,)
for his neglect in the premises.
There can never be any difficulty in fillinf; up the ordinary form of citation,
which will be found among these precedents, if the language of the decretal
part of the order is taken as a guide.
56
[ No. 39. ]
ORDER to ATTACH or to REMOVE ADMINISTRATOR for failure to file
IMENTORY on CITATM, or to SHOW CAUSE.
Richard Rich, deceased, Estate of. ^
Attachment (or removal) for want >
of Inventory. )
This being the day appointed, in and by order of this
Court, made in the premises on the — day of , 18—
,
for John Jones, the administrator of said estate, to return an
inventory of said estate, or to show cause wiiy an attach-ment
should not be issued against him, (or, why his letters
should not be annulled and revoked, according, as may he
required,) fov failure so to do; and the said administrator
having wholly failed to return such inventory, in accord-ance
with the law in such cases made, and with the said
order of this Court, and having also wholly failed to show
any sufficient cause, or to give any good reason for such
failure : It is ordered, adjudged and decreed, that an at-tachment
be issued out of this Court, against the said John
Jones, commanding that lie be attached and committed to
the common jail of this county, there to remain, until he
shall return such inventory, as by law is required, or until
he shall be discharged by due course of law
—
(or, if the de-cree
is for removal, jJroceed as follows—viz : It is ordered,
adjudged and decreed, that the letters of administration
heretofore granted by this Court, on the — day of ,
18—, to the said John Jones, iriand upon the estate of said
intestate, be, and the same are hereby revoked and annulled.
A form of Attachment will be found elBcwhere. The introductory recitals,
upon which the process pui-ports to be based, must, in each case, follow the
causes set forth in the order or decree.
57
C No. 40. ]
ORDER REVOKING letters on failnre to fite an INVENTORY,
Richard RicJi, deceased, Estate of,
Revocation of Letters.
This being the day duly appointed by the order of Court,
for John Jones, as the administrator of said estate, to file
an inventory of said estate, or to show cause, if any he has,
why he should not be removed from said administration ; and
it appearing, from the papers on file, that said Jones hath
been duly cited, in conformity with said order ; now, there-fore,
more than two months having elapsed since the said
Jones was appointed to said administration, and he having
wholly failed, and now failing to return any inventory of said
estate, as by law, and by the said order and citation he was
and is required to do ; and said administrator having al?o
failed to show any sufficient cause or excuse for his non-compliance
with the law in this behalf made, and with the
said order and citation : It is ordered and decreed by the
Court, that the letters heretofore granted and issued to the
said Jones, authorizing him to administer upon said estate,
be, and the same are hereby revoked and annulled, and that
all powers conferred upon the said Jones by virtue of his ap-pointment
to such administration do cease and determine
from this day forth.
[ No. 41. ]
ANSWER of Administrator against an ATTACHMENT or REIOVAL, and
ask in? furtlier time to file INVENTORY.
To the Hon. Edwin Rust, Judge of the Court of Probate in
and for the County of Mobile.
The petition of John Jones, the administrator, in said
Court, of the estate of Richard Rich, deceased, in answer to
the citation heretofore served upon him, under an order of
said Court, respectfully shows unto your Honor, that he has
a
58
been endeavoring to make and return sncli an inventory of
the estate of said decedent as tlie law re(inires at his hands,
but that he has been »nable to do so, up to this time, owing
to the f^ct that the estate of said decedent consists of an in-terest
in the estate of Jacob Older, the administration of
which is now pending before your Honor, and is unsettled ;
and in a partnership, mentioned in the written application of
this respondent for letters upon the estate of said Rich, which
application is on file in said Court, and to which this respon-dent
begs your Honor to refer, for further particulars and
for greater certainty. This respondent further states, that
the assets of said firm are in the hands of A. B., the survi-ving
partner, who is proceeding, as res[)ondent believe^, to
collect what is due to, and to settle up the debts of the said
firm as rapidly as the law, and a due regard to economy will
permit.
This respondent further states, that from the best informa-tion
he can obtain, he is satisfied that the interest of his in-testate
in the assets of said firm, and in the said estate of
said Older, cannot be ascertained, so as to enable him to
render