Melville Fuller

“ The decisions of the supreme court of Alabama recognize that an application for the probate of a will is a proceeding in rem, but it is held that it becomes a suit inter partes where there is a contest, that is, 'a suit between the party alleging the existence of the will and the contestant.' And that the result of the statutory provisions is to afford two modes of contest, in the probate court before the will has been proved, or in the chancery court after probate by the institution of a suit by those who were not parties to a contest in the probate court. ”

“ The contention of plaintiff in error is that the proceeding in the probate court of Madison county was simply a proceeding to establish and probate the will, and as such was not a 'suit of a civil nature, at law or in equity,' and therefore not removable; that if the proceeding were otherwise removable, Llewellyn Jordan was not a defendant and could not remove; and that the application for removal came too late. ”

“ But whether as coexecutor or as sole legatee and devisee, his appearance in the cause would be as proponent of or on behalf of the will, and not against it, and without going into the authorities as to where the burden of proof lies when a contest is initiated as to the validity of a will, when it is presented for probate, and even conceding that the specific provision of this state statute may be disregarded, we are nevertheless of opinion that the application to remove came too late. ”