The petition for probate and the attempt to contest were in the Probate Court under Sections 10625-10636 and not under Section 10637, Code. In each of these sections the right of contest is given to "any person interested," etc.
In the recent decision of Leedy v. Taylor, Clerk of House of Representatives, et al., 231 Ala. 317, 164 So. 820, 822, these statutes were considered. The court said in that case: "In our case of Allen v. Pugh, 206 Ala. 10, [11], 89 So. 470, this court was dealing with a right to contest a will in equity, bestowed upon 'any person interested in any will.' Section 10637 (6207), Code. That was held to mean only those who had a direct legal or equitable interest in the estate which would be injuriously affected by the establishment of the will. Braasch v. Worthington, 191 Ala. 210, 67 So. 1003, Ann.Cas.1917C, 903. But in Allen v. Pugh, supra, it was held that this right was personal and not that of a property interest; and that complainant must be of that personal description at the time the will was admitted to probate. And since an administrator of one who had that personal right when the will was probated, but later died, did not in his representative capacity have it at that time, he, as such, was not in the class on whom the right was conferred. Otherwise expressed, the statute created a class of individuals who could thus contest. The right was personal to each such individual, though the basis of his membership in this class was his status in respect to property rights." [Parenthesis supplied.]
The statute is construed in the decision of Allen v. Pugh,206 Ala. 10, 89 So. 470, 471, where the court said:
"The settled construction of the phrase 'any person interested therein' is that it embraces any person who has an interest in the estate disposed of, which would be conserved by defeating the probate of the will, or jeopardized or impaired by its establishment. Montgomery v. Foster, 91 Ala. 613,8 So. 349; Elmore v. Stevens, 174 Ala. 228, 57 So. 457; Stephens v. Richardson, 189 Ala. 360, 66 So. 497. As stated in the later case of Braasch v. Worthington, 191 Ala. 210, 213,67 So. 1003, 1004, Ann.Cas.1917C, 903:
" 'A contestant of a will must have some direct legal or equitable interest in the decedent's estate, in privity with him, whether as heir, purchaser, or beneficiary under anotherwill, which would be destroyed or injuriously affected by the establishment of the contested will.'
"Meredith Pugh, the father of this complaining contestant, since he was an heir at law of the testator, and would have been a distributee of his estate in case of intestacy, was unquestionably a competent contestant of the will in the probate court." [Italics supplied.]
In the instant case the nephews and nieces of the testator were parties within the class. Moreover they were beneficiaries under the will and were injuriously affected by the subsequent testamentary instrument sought to be contested. This is shown by the petition for probate, as follows: "Petitioner further represents that Willie Clyde Hendricks is the widow of the said Samuel M. Hendricks deceased, and resides at Rt. 3, Oneonta, Ala., and that the said widow is over twenty-one years of age, and that the names, ages and condition of the next of kin are as follows, viz.: No father or Mother, and no Brother or Sister, but left the following nephews and nieces, viz: Lila Bussey, Romania Baker, Ollie Mead, Joe Latta, Mose Latta, Jim Latta and Marshall McAbee, each over 21 years of age, of sound mind, and whose residence is unknown and cannot be ascertained by reasonable diligence; and Greenwess McAbee and Adrin McAbee, each over 21 years of age, of sound mind, and nonresidents of the State of Alabama, Greenwess McAbee resides in Kansas City, Mo., and particular address unknown, and Adrin McAbee resides in Texas, and particular address unknown, and cannot be ascertained by reasonable diligence." [Italics supplied.]
We are of the opinion that they came within the class defined by our decisions *Page 622 as "parties at interest" and that they have the right of contest under either of the foregoing statutes. The instant parties are interested in the estate of decedent and as beneficiaries under another testamentary instrument are injuriously affected by the subsequent instrument sought to be contested by Romania Baker, indicated as a codicil in the pleading.
All the parties to this appeal have treated the question herein discussed as properly presented on their appeal from the final judgment rendered, and no question has been raised as to any matter of the bill of exceptions or otherwise. We have likewise treated the case and determined the matters of merit involved. New York Life Ins. Co. v. Mason, 236 Ala. 44,180 So. 775.
Application for rehearing overruled.
ANDERSON, C. J., and GARDNER, BOULDIN, FOSTER, and KNIGHT, JJ., concur.