Tucker v. Whitehead , 58 Miss. 762 ( 1881 )

Cooper, J.,

delivered the opinion of the court.

The probate of the will of P. W. Tucker, in common form, is effectual and binding until attacked and overturned in direct proceedings instituted in the Chancery Court. Until this is done the devisee is entitled to the possession of the land, and to collect the rents accruing thereon after the death of the testator, unless the heirs-at-law can show circumstances sufficient to authorize the interposition of a court of equity to take charge of and preserve the property and its income until the contest of the will can be made. In Hamberlin v. Terry, Exr., 7 How. 143; Cowden v. Dobbyns, 5 Smed. & M. 82 ; Garner v. Lansford, 12 Smed. & M. 558, and Wall v. Wall, 30 Ill. 91, this court, in speaking of the effect of a probate in common form, say it is an incipient step in the proceedings, taken in order to give the court jurisdiction, and is not conclusive upon the heirs-at-law ; but this language must be construed with reference to the character of the cases in which it was used. They were all appeals from Probate Court proceedings, in which, after probate of the will in common form had been made, direct proceedings were commenced to test the validity of the wills. The contest in each of these cases was made in the manner provided by the statutes to contest the validity of the will, and if the probate might be thus overthrown, the corollary is that such probate was not conclusive.

But so long as the probate in common form remains unre-i voked, it cannot be contradicted, “ and, therefore, if a probate' under seal be shown, evidence will not be admitted that the will was forged, or that the execution of it was procured by fraud, or that the testator was non compos mentis, or that another person was executor.” Toll, on Ex. 76. The reason given is, that these are matters of which the court granting the probate alone has jurisdiction.

Appellee was the landlord after the death of P. W. Tucker, and was entitled to collect all the rent of the premises for the year 1879. Code 1871, sect. 2288; Bloodworth v. Stevens, 51 Miss. 475.

Since the adoption of the Code of 1880 a different rule prevails, by reason of sect. 1327.

The provisions of the act of 1876 (Laws 1876, p. 109) extend to any one entitled to the rent. Any one who could attach for rent under the provisions of chap. 21 of the Code of 1871 could avail himself of the remedy afforded by said act.

Appellant acquired no right to the rent by reason of the contract with the tenant. Code 1871, sect. 2289.

Judgment affirmed.