Mrs. Annie B. Davis, a resident of Dade County, Florida, died in that State on 7 February 1960. Among other assets Mrs. Davis owned real estate in Birmingham, Alabama, at the time of her death.
Her will was duly admitted to probate by the Probate Court of Dade County, Florida, on 15 February 1960, and letters testamentary were issued to Robert H. Davis, Sr., named in the will as sole executor thereof.
We note that Mrs. Davis' will was witnessed by seven witnesses.
On 15 April 1960, Robert H. Davis filed a petition in the Probate Court of Jefferson County, Alabama, asking that the will of Annie B. Davis be admitted to probate in Alabama, certified copies of the proceedings admitting said will to probate in Florida being attached as exhibits to the petition. Thereafter, on 30 September 1960, the Probate Court of Jefferson County entered an order admitting the will to probate in Alabama.
Thereafter, the appellants, who are daughters of Annie B. Davis, filed a bill in the Circuit Court of Jefferson County in Equity, seeking to contest the validity of the will. The grounds of invalidity asserted were that the will was the result of undue influence, and further, that the testatrix was of unsound mind at the time of the execution of the will.
The chancellor sustained the appellee's demurrer to the bill, and dismissed it. This appeal is from that order.
Section 46, supra, provides among other things that when a testator was not at the time of his death an inhabitant of this State, but was an inhabitant of a state or territory of the United States, and his will has been proved in the state or territory of his residence, the will may be admitted to probate in this State by presentation to the proper Probate Judge of a copy of such will authenticated as provided by Section 905 of the revised statutes of the United States. Upon presentation of such authenticated will the Probate Judge shall, without notice, enter a decree admitting such will to probate.
It is further provided in Section 46, supra, that if the will has been admitted to probate elsewhere than in a state or territory of the United States, and such will purports to dispose of real or personal property situated in Alabama, such wills are required to be probated in the courts of Alabama, and are subject to be contested in the same manner as wills offered for original probate in the courts of this State.
In Brock's Administrator v. Frank, 51 Ala. 85, in writing to the precursor of Section 46, supra, which precursor was in all material respects substantially similar to Section 46, supra, Justice Stone wrote:
The appellants contend, however, that by virtue of Section 64, Title 61, Code of Alabama 1940, they are entitled to contest the will of Annie B. Davis in the equity court. This section provides:
Prior to the enactment of Section 64, supra, or its progenitors, there was no jurisdiction in equity for contesting a will.
Both Sections 46 (pertaining to probate in Alabama of a non-resident's will) and Section 46 (pertaining to contest of a will in equity,) or their progenitors, have been in our digests or our codes since 1806. They are in pari materia. Section 46 was re-enacted in 1951, without any change material to this review. See 1951 Acts of Alabama, Special and Regular Session, Vol. 2, Act No. 988, page 1663. No right to contest a will probated in another state or territory of the United States and admitted to probate in Alabama, is provided for. On the other hand, the right to contest a will proved in some place other than a state or territory of the United States is provided for in the section. We think this latter express provision for contests only as to wills proved elsewhere than in a state or territory of the United States, necessitates the conclusion, when aided by the maxim "expressio unius est exclusio alterius," that the legislature did not intend to permit the contest of a will probated in this State, when such will has already been probated in the state or territory of the United States wherein the testator was living at the time of his death. City of Birmingham v. Brown, 241 Ala. 203, 2 So.2d 305; Weill v. State ex rel. Gaillard et al., 250 Ala. 328, 34 So.2d 132. Having no right to contest the will in the probate court, we think it must rationally follow that no jurisdiction exists in the equity court to entertain such contest.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur.