Rylee v. Union & Planters' Bank & Trust Co.

delivered the opinion of the court.

The clerk of the chancery court of Tallahatchie county on the 14th day of April, 1919, upon the petition of the appellee bank admitted to probate- in common form the last will and testament of Andrew Jackson Rylee and *391granted letters testamentary to appellee, named as executor under the will. On the same day and after the issuance of these letters testamentary, appellant attempted to file a caveat against the probate of this will. On the next day appellant filed with the clerk an ex parte petition for probate in common form of another so-called last will and testament of deceased. No action was taken by the clerk with reference to the attempted caveat nor the attempt of appellant to probate'in common form this second alleged will. Thereafter the appellant filed in the chancery court a motion to set aside the acts of the clerk in admitting to probate dn common form the will in which appellee in made executor. The appellee also made a motion in court to have the acts of the clerk with reference to the probating of this will in common form approved. These two motions were heard together, and the court entered a decree denying the motion of appellant and granting that of the appellee and ratifying, approving, and confirming the acts of the clerk in admitting the will to probate in common form. This decree was entered on May 2, 1919. ‘ On June 2, 1919, appellant filed with the chancellor a petition for an appeal with supersedeas to this court. On June 26th the chancellor granted the appleal but denied the supersedeas. An appeal bond was approved by the clerk on the 1st day of September. The case is now before ns upon motion of the appellee to dismiss the appeal.

It is contended by the appellee that the decree or order appealed from is not a final, but is an interlocutory, decree and was not applied for within ten days after its rendition as is provided in section 35, Code of 1906, section 10, Hemingway’s Code.

The appellant contends that this is a final decree. The decree appealed from is an -approval of the act of the clerk admitting this will to pirobate in common! form and is an interlocutory decree. As is said in the opinion of *392the court in the case of Kelly v. Davis, 37 Miss. 76, on page 103:

“The first probate of a will in this state is substantially after the same manner, and with the same effect, as the probate in common form in England; and it has been repeatedly held by this court,. that such probate is a mere incipient step», necessary to enable the court to take steps to carry it into execution, but that it is not conclusive on heirs and distributees. Hamberlin v. Terry, 7 How. 143; Cowden v. Dobyns, 5 S. & M. 82; Garner v. Lansford, 12 Ib. 558. The statute prescribes the mode in which the heir or distributee shall proceed to impeach the will. It is to be done» in the. same court in which the p»robate was granted, and the issue to try the validity of the will is made up by that court, and directed to be tried. Bearing in mind that the first probate is a mere inceptive step towards the establishment of the will, and not conclusive upon the heir or distributee, what must be taken to be the effect of this proceeding in the court of probates t It is manifestly a re-examination of the question of the validity of the will, and a demand upon the parties claiming under it to establish it. ”

Again in the case of Murray v. Murphy, 39 Miss. 214, it is held that — ‘ ‘ The .probate is not a final adjudication of the validity of the will, but an incipient step» necessary to enable the court to proceed to carry the will into execution. Kelly v. Davis, 37 Miss. 76. It is not conclusive against the heirs and distributees; and if they desire to contest the validity of the will, the statute prescribes the mode in which that shall be done, by an issue of devisavit vel non.”

It is established by these two decisions from which we have quoted, and by those referred to. in them, that the probate of a will in common form is not a final adjudication of its validity, but is merely an incipient step necessary to enable, the court to carry the will into *393execution. At the time of the rendition of these decisions the law of the state relating thereto was practically the same as it is to-day, with the exception that now under section 1999, C'odei 1906, section 1664. Hemingway’s Code, the probate of a will in common form in a contest is prima-facie evidence of the validity of the will. This is merely a rule of evidence and in no wise changes the character of this decree.

The motion is sustained, and the appeal dismissed.

Dismissed.