Gilbert v. Gilbert
Supreme Court of Alabama
ERROR to the Court of Probate of Sumter. William Gilbert, the plaintiff in error, as executor of James M. Gilbert, deceased, propounded bis nuncupative will for probate, which was contested bj the defendant in error, a son of the deceased, who appeared in person, and, being a minor over fourteen years of age, was represented by a guardian ad litem appointed by the court.
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ERROR to the Court of Probate of Sumter. William Gilbert, the plaintiff in error, as executor of James M. Gilbert, deceased, propounded bis nuncupative will for probate, which was contested bj the defendant in error, a son of the deceased, who appeared in person, and, being a minor over fourteen years of age, was represented by a guardian ad litem appointed by the court. By the will propounded for probate, the testator bequeathed all his property to his wife Mary, and his infant daughter, Susan Frances; and further provided that his son David, the defendant in error, should not have any of…
1Opinion of the CourtGoldth Waite, J.
Tbe ruling of the court below in refusing to allow the plaintiff in error to become a witness to sustain the validity of the will, was correct. He was incompetent, not because he was named as executor, but for the reason that he was the proponent of the will. He offered it for probate, and in the coniest which arose in relation to its validity, occupied the position of the plaintiff in the suit. If the issue was determined against him, under the operation of the statute, (Clay’s Dig. 316, § 26,) he was responsible for costs. His renouncing as executor could have had no effect in exonerating…
2Cases cited1 opinion
- Roberts v. TrawickSupreme Court of Alabama · 1848
3Cited by40 opinions
- Blakey's Heirs v. Blakey'sSupreme Court of Alabama · 1859
- Hodges Bros. v. Coleman & CarrollSupreme Court of Alabama · 1884
- Councill v. MayhewSupreme Court of Alabama · 1911
- Taylor v. KellySupreme Court of Alabama · 1857
- In re the Probate of the Will of JackmanWisconsin Supreme Court · 1870
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