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134 Ala. 326

Whitaker v. McKinney

Supreme Court of Alabama

Decided November 15, 1901

Supreme Court of Alabama · decided 1901-11-15

Heard before the Hon. A. M. Ayres. On December 2, 1898, the appellant, Simon Whitaker, filed a petition! addressed to the judge of probate of Marshall county, in which the . following facts were averred: In 1861 one Amos Stapler died in Marshall county, leaving considerable -real estate and personal property. His widow resided on the homestead occupied by the deceased at the time of his death up to her death in 1891.

Decided 1901-11-15

SHARPE, J.

¶1If it lie assumed that the parties in interest who were not notified of the probate proceedings would have been entitled to have the judgment of probate set aside on timely application, still laches plainly imputable to appellant must prevail against his application. A thindl of a century is ordinarily sufficient to obscure a transaction such as the making of a will, and to- make it difficult if not impossible to prove the contents of a, lost. will. A reproduction now o-f the evidence on which the contents o'f the will was established and the judgment was rendered in 1865, might be impracticable, and hence to- set aside the judgment and open the way to- a contest of the will, would be at the imminent risk of allowing the appellant an advantage from his own unreasonable delay.

¶2Affirmed.

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