The purpose of this bill is to contest in chancery an instrument that was previously probated in the probate court of Houston county as authorized by Code, § 6207. The bill avers that the instrument so probated was not the last will and testament of Mrs. Walker, deceased, and that these complainants did not contest the same in the probate court. It is further averred that the decedent subsequently executed a testamentary instrument in which the complainants were named as beneficiaries, which later instrument operated and effected, according to the statute, Code, § 6174, as interpreted in Bruce v. Sierra, 175 Ala. 517, 57 So. 709, Ann. Cas. 1914D, 125, to revoke the elder instrument to which the probate court gave probate. The elder instrument, of date December 17, 1907, is set out in the statement of facts. Unaided by the averment of any illuminating circumstances surrounding it, my judgment is that it should be held to be a deed, not a will. If it was delivered to the grantee, undoubtedly it was intended to be a deed, not a will. However, there is no allegation that it was delivered; but, since it is in form and expressed purpose a deed, it should be taken at its own avowal of its nature, and held to be a deed. This acceptance of its nature consists with what was its otherwise undisclosed intention, viz. to pass properly in præsenti to the grantee, the actual enjoyment of which was postponed during the life of the grantor. The elder instrument neither expresses nor imports a promise to make a will. It purports, upon consideration, to convey the property described therein. It is not an executory contract. Whatever effect it has, that effect it had and fully accomplished when executed. What property of that the instrument undertook to convey, it did effect to convey, is of course another question.
That the bill has equity to avail of the right of contest declared in Code, § 6207, cannot, it seems to me, be a matter of doubt, unless it can be soundly ruled that Mrs. Walker by executing the instrument of date December 17, 1907, absolutely, permanently, denuded herself of the right and power to make a subsequent will. It cannot, in my opinion, be so affirmed. Sumner v. Crane, 155 Mass. 483, 29 N.E. 1151, 15 L.R.A. 447, where the proposition was well decided. Moreover, this court in Bolman v. Overall, 80 Ala. at page 456, 2 South. at page 626, 60 Am. Rep. 107, while defining rights, and remedy to give effect to them, where one validly contracts, for a consideration, to make a certain disposition of property after death, said:
"The courts do not set aside the will in such cases [i. e., a will made in violation of a contract to dispose of property in a certain way], but the executor, heir, or devisee is made a trustee to perform the contract."
It is a total misapprehension of the Bolman-Overall Case to read it as denying the power to make a will in violation of such a contract. The very language of that opinion refutes that notion. It is not wise or conservative to, at this late day, enter upon the hazard of a short cut that to take which violates rules of law that have long since become rules of property in this state.
My judgment is that the chancellor's ruling was well grounded in reason and authority.
On Application for Rehearing.