The bill, a copy of which the reporter will set out, shows that a will and a deed, both executed by Duncan C. Walter, deceased, stand in the way of complainants' inheritance from the deceased, and the averment of the bill — to state it generally — is that both the will and the deed were procured by the fraud of the devisee and grantee, the defendant in the bill. The will and the deed undertake to dispose of the same property, and it is not questioned that the bill avers fraud as to both with sufficient particularity. No one will deny that, if these averments shall be proved, complainants in the bill should have relief against both the will and the deed.
The circuit court, sitting in equity to hear defendant's motion "to strike all the allegations of the bill in this case in reference to the execution of a deed by the deceased to J. B. Walter [the defendant in that cause] on the ground that it has nothing to do with the bill to contest the will and is impertinent," *Page 285 granted the motion, whereupon complainants in that cause came to this court for a writ of mandamus to correct that ruling.
The will in question had been probated in a proceeding to which petitioners here, complainants in the circuit court, were not parties. But under section 6207 of the Code petitioners had the right to contest the validity of the same by bill in chancery. In the opinion with which the decree in the circuit court was prefaced, authorities were cited to show that the contest of a will in chancery is a proceeding in rem, and the gist of what further was said is to be found in the following language, which we quote:
"If the equity of the bill is to rest upon the theory of a fraudulent conveyance, to maintain the bill the judgment of probate must be collaterally attacked inter partes. If, however, the jurisdiction of the court attached upon the contest of the probate in a proceeding in rem, the rights of the parties upon distribution inter partes are utterly foreign to the contest"
— whereby it was intended, as we infer, to pronounce sentence of multifariousness against the bill.
But I do not think the two matters were perfectly distinct and unconnected, to use the expression of Judge Story in defining multifariousness (1 Dan. Ch. Pl. 334, note), and the language of this court (Chapman v. Chunn, 5 Ala. 397); but, without regard to that, the question of multifariousness was not raised, for there was no demurrer, and the statute, section 3095 of the Code, provides that, "unless taken by demurrer, objection to a bill because of multifariousness must not be entertained." And so the judgment in the circuit court seems to be based upon the consideration that by his motion to strike the defendant was "conceding the jurisdiction to contest the will." But it is not conceivable that the defendant in a bill in equity should be allowed at discretion to dictate the frame of complainant's bill or the order in which he must present the different issues his cause may involve. It is not conceivable that defendant, by his motion to strike, should have had the power to confine complainants to an exclusive election to proceed with their contest of the will or their attack upon the validity of the deed. Therefore this court has sought a different ground for its opinion.
In the prevailing opinion it is said that —
"The bill is clearly one having for its primary purpose the contest of the will, and this, we think, necessarily follows from the consideration of its frame and character; and from the further fact, it appears upon its face the complainants in that bill are entitled to no relief whatever as to the deed and bill of sale, so long as the probate of the will remains undisturbed. The will has been duly admitted to probate, and its probate was a proceeding in rem, binding and conclusive upon the world until set aside as provided by law. Such being the case, therefore, the bill shows upon its face that the complainants are entirely without interest as to the deed and bill of sale, unless the bill to contest the probate of the will is successfully terminated. Their interest as to the deed and bill of sale is entirely contingent upon the result as to the contest of the will. The bill is clearly filed primarily to contest the will of Duncan C. Walter, deceased, in a court of equity, as provided by section 6207 of the Code of 1907."
The opinion then cites authorities to establish the fact that the contest of the probate of a will is a proceeding in rem, and concludes that —
"As such the only question presented [by the bill in equity] was the determination of the status of the res, and in no manner involved the rights of the parties."
If it be true that the decree to be rendered on the bill in equity will in no manner involve the rights of the parties, any discussion of the bill is futile. But I cannot look upon that proposition very seriously. It appears to have been stated as a proper conclusion from authorities which hold that the contest of a will which has been probated is a proceeding in rem. I am not disposed to take issue as to that, though I think good reason can be assigned for saying that the contest of a will in equity is not strictly and exclusively a proceeding in rem. At least I can quote from Brickell, C. J., in Kumpe v. Coons, 63 Ala. 448, as follows:
"An original proceeding in the court of probate, for the probate of a will, is a proceeding in rem. The purpose is to ascertain the status of the estate of the decedent, and the condition in which he died, whether testate or intestate. It does not assume the form, and is not a suit inter partes, until the heirs or distributees intervene in the mode prescribed by the statute. Allen v. Prater, 35 Ala. 169; Clemens v. Patterson, 38 Ala. 721; Leslie v. Sims, 39 Ala. 161. The character of the suit is not changed, if there is no contest in the court of probate, and the heir at law, or next of kin, resort to the statutory remedy by bill in chancery. That remedy stands in the place of, and is the substitute for, proof of the will in solemn form as practiced in the ecclesiastical courts; or, if the will is of real estate, the action of ejectment at common law. Johnston v. Glasscock, 2 Ala. 236. In either proceeding — the contests in the court of probate, or by bill in a court of equity — the parties claiming under the will are in fact the actors, bound to support it affirmatively, while the heir, or next of kin, is in the relation of a defendant. Johnston v. Glasscock, supra. In either court, the controversy is between living parties."
And in Dickey v. Vann, 81 Ala. 425, 8 So. 195, Somerville, J., summed up the authorities as follows:
"The probate of a will has often been held by this court to be in the nature of a proceeding in rem — operating upon the thing itself *Page 286 and determining its status. Being an adjudication upon the status of the particular subject-matter, like other judgments in rem, when pronounced by a tribunal of competent jurisdiction, it is binding upon all other courts, and, as commonly said, concludes the world. It is only when there is an intervention of parties litigant, and an actual contest ensues, that it assumes the nature of a proceeding inter partes. Deslonde v. Darrington, 29 Ala. 92; Kumpe v. Coons, 63 Ala. 448; Martin v. King, 72 Ala. 354; Blakey v. Blakey, 33 Ala. 611; Freeman on Judg. § 608; 1 Greenl. on Ev. § 550; Estoppel and Res Adjudicata (Herman) vol. 1, § 293."
But let it be conceded that the decree in a proceeding to probate a will or in the contest of a will in equity is a decree in rem, that is, that, as long as it stands, it is conclusive against the whole world — and that concession I may safely make — still the statute provides for a proceeding with parties plaintiff and defendant in the probate court, the character of the proceeding is not changed when resort is had to the equity court, and when parties come forward and join in a contest in either court the proceeding, as to them, becomes a proceeding inter partes. Knox v. Paull, 95 Ala. 507, 11 So. 156. Now the argument of the opinion is this: That because the probate of a will is a proceeding in rem, binding upon the whole world until set aside as provided by law, therefore the bill in this cause shows upon its face that the complainants are without interest as to the deed unless and until the contest of the probate of the will is successfully terminated. But the making of a deed is a proceeding in rem, and why would it not be altogether as logical in form and as sound in principle to say that the deed until set aside as provided by law is binding upon the whole world; therefore, the bill in this cause shows on its face that complainants are without interest in the will unless and until the deed has been set aside. And why not thus establish the fact that, clearly, the primary purpose of the bill is to contest the validity of the deed? Truth is, the inquiry as to the extent to which the probate of a will is a proceeding in rem is wholly beside the issue in this cause. The only possible question is one of convenience and judicial policy. It is whether the contest of the will and the deed should be permitted to go on in one proceeding in a court which delights to do justice and not by halves, or whether two bills directed to one common end, i. e. the establishment of complainants' heirship in certain property, notwithstanding the will and the deed, should be required.
In McEvoy v. Leonard, 89 Ala. 455, 8 So. 40, Chief Justice Stone said:
"We are tempted to inquire if the validity vel non of Mrs. Leonard's will should not be first determined, before any other questions sought to be presented are brought before the court."
And this language is quoted, apparently as lending color to the proposition that the contest of the will in this case should be determined before any other question is presented for consideration, and therefore, I presume, that the contest of the will is the primary purpose of the bill. The quoted language has not been appraised in the opinion as its author appraised it, for he said, speaking of that and other inquiries:
"These inquiries are suggested by the questions the bill in its present shape seeks to raise, and are in no sense to be considered as anything more than suggestions, inviting investigation."
Moreover, I am confident that a reading of the facts in that case, which are too complicated for repetition here, can produce upon the open mind but one impression, namely, that there is no analogy whatever between that case and this.
And so language is quoted from McCann v. Ellis, 172 Ala. 60,55 So. 303, an action of ejectment, to show that in a bill to contest a probated will the only question that should or can be adjudicated is the question, "Will or no will." The opinion in that case, like the opinion in every other case, takes meaning from the facts under consideration. It was there held, on facts appropriately inviting the decision, that on the contest of a will in equity the decree could not correctly pronounce the instrument in contest a will as to some of the heirs or devisees but no will as to others. The case bears no resemblance, not the remotest, to the case now before us. All it proves is that language used with reference to a given state of facts may be wrested from its intended use and meaning to serve a purpose to which its mutilated form accidently lends itself.
Again, it is said that in the contest of a will equity exercises a special statutory power, a limited jurisdiction. No connection between this proposition and the conclusion reached is stated, and I fail to see any. Equity delights to do justice, and not by halves. In pursuance of this policy, it frequently exercises jurisdiction of controversies purely legal. What difference does it make that its jurisdiction is special and limited? Its equitable powers are unlimited and its power to dispose of the contest of a will is adequate.
Finally, it is said that the question of multifariousness is not presented, but rather a question of multiplicity of proceedings, and one form of the conclusion reached seems to be that multiplicity of proceedings is not allowable. The majority opinion, as I understand it, holds that the bill in equity was bad because with the contest of the will it joined the unrelated matter of the fraudulent deed. In our practice this is considered *Page 287 to be multifariousness. Singer v. Singer, 165 Ala. 145,51 So. 755, 29 L.R.A. (N.S.) 819, 138 Am. St. Rep. 19, 21 Ann. Cas. 1102; Colburn v. Broughton, 9 Ala. 351. If it is anything else, I find in the books no statement of what it is. But it is the general rule in courts of equity, and is the rule of this court, that a bill is not multifarious which unites several matters distinct in themselves, but which together make up the complainants' equity and are necessary to complete relief. 1 Daniell, Ch. Pl. 339, note 1; Stone v. Knickerbocker Life Ins. Co., 52 Ala. 589; Wimberly v. Montgomery Fertilizer Co., 132 Ala. 107, 31 So. 524. And aside from that, as I have already pointed out, no objection was taken to the bill for multifariousness as the statute requires.
As I have stated, my opinion is that the only question involved is whether complainants should be allowed to proceed in one bill to reach the right they claim, or whether they should be required to file two bills. All considerations seem to me to indicate the adoption of the first-mentioned alternative.
It is conceded that mandamus is the proper remedy, if the trial court erred in striking the averment as to the deed, and in my judgment the writ should be awarded.
SOMERVILLE, J., concurs in the foregoing.