13 Ga. 171 | Ga. | 1853
By the Court.
delivering the opinion.
We are to determine whether the Circuit Judge administered the law when he overruled the demurrer to the plea filed by the defendants in the Court below. The defendants pleaded in bar, a judgment of the Superior Court of Upson County, upon appeal by consent from the Court of Ordinary, setting aside the will of Mrs. Bunkley, upon an'issue of devisavit vel non. The case originated before the Ordinary upon a citation to_ the executor, on the part of Terrel Barksdale and Stephen Harvey, parties interested in the estate of Mrs. Bunkley, calling upon him to show cause why the 'will should not be propounded for probate in solemn form. At the same time; they filed a caveat to the will, upon various grounds. The executor answered upon the order of the Ordinary, the rule calling upon him to show cause why the will should not be proven in solemn form, traversing the caveat, and pleading in bar of the right of the applicants to have the will'proven in solemn form, that it had already been proven in solemn form and passed to record. The question made on this plea in bar went to the Superior Court upon appeal. The judgment of the Superior
1st. The Ordinary had no jurisdiction of the cause, because the parties were estopped from having the will proven, on the ground that it had already been once proven in solemn form, and if the Ordinary had no jurisdiction, the Superior Court could acquire none by appeal, and therefore, its judgment was void. We are, therefore, first to inquire whether there was a previous probate of Mrs. Bunkley’s will, per testes. As to this point, how stand the facts ? By authority of the Act of 1810, the will was presented to two of the Justices of the Inferior Court, Messrs. Bethel and Beall, by the executor, Anderson, in vacation, and proven by the written oaths of the subscribing witnesses. No notice to the parties in interest, whatever, was given. The Act of 1810, whilst it allows probate in vacation, requires the will to be passed to record at a regular term of the Court of Ordinary. Cobb’s N. D. 284. At the next term after the probate, to wit: at May Term, 1850, the will was ordered to record upon tho written testimony of the witnesses, taken before Bethel and Beall, and the executor qualified. Whether they were present or not does not appear ; it is certain, however, that they were not examined. Notice of his intention to apply at this term for the record of tho will was given by the executor to the legatees. Was there, under these facts, a probate of this will in solemn form ? We are very clear that there was not.
Exactly the same formalities are not required with us, but it is necessary with us that all parties' in interest be cited to witness proceedings; that the will be produced in open Court; that the witnesses be there examined, and that all parties in interest have the privilege of cross-examination. The probate in form of law, may be at the instance of the executor, or it may be at the instance of the parties in interest. The probate of a will in solemn form is conclusive; the executor cannot be compelled to prove it again, and although all the witnesses afterwards be dead, the will still retains its full force. Not so when proven in common form ; for in that case, the executor may be compelled by any party interested, to prove it per testes. The time within which this must be done, does not appear í o be certainly fixed; it is, howmver, by weight of authority, thirty you rs in England. 1 Williams’ Executors, 209. Swinb. pt. 6, §14, p. 4. Godolph. pt. 1, ch. 20, §4. Newde vs. Weeks, 2 Phillim. 331, note.
It becomes important, to a fair view of these points, to ascertain the precise status of the cause when the parties entered into the agreement to carry it to, the appeal, and to present the agreement itself. Some six months after the will Ayas passed to record, to Avit, at Nov,. Term, 1850, of the Court of Ordinary of Upson County, the petitioners applied for and obtained a rule ni si. calling upon the executor, Anderson, to show cause Ayhy the will should not be proven in solemn form, and setting forth divers grounds of caveat to it. At the January Term following, Anderson, the executor, answered the rule, by setting up the previous probate as conclusive, and claiming that it could not be opened, because it was a probate in solemn form of law; and also by traArersing the grounds of caveat. As the case then stood, and before any decision whatever was had in it, the parties agreed that the rule ni si. and answer, be carried to the appeal by consent, and that if the Superior Court should overrule the estoppel pleaded by Anderson, the executor, that the caveat contained in the rule ni si. be considered on the appeal a caveat to the will, and that the caveators be allowed to make any amendment they may deem proper, and Anderson to traverse the caveat, and the same to stand for trial in the Superior Court as though it had been decided in the Court of Ordinary. Upon this appeal by consent entered at the time, it Ayas the questions last stated originated., _ The issues made by the pleadings, were as I consider them, two.
1. Upon the setting up of the previous probate, which was an issue of laAV, and in the nature of a plea in bar.
These issues were formed on the rule and caveat of the petitioners on the one hand, and the answer of the executor on the other. The pleadings in the Ordinary, are not technical; in this case they presented with sufficient distinctness, two questions for decision; the first on the plea in bar, and the second on the will itself. The former was preliminary, and if decided in favor of the executor, would discharge the rule and the cause"; but if decided against him, would leave the latter for a hearing and determination. No decision upon either was made by the Ordinary. And it is first claimed that for that reason the consent could not so carry the cause to the Superior Court as to give that Court jurisdiction. There are two constitutional provisions which relate to the appellate jurisdiction of the Superior Courts, in cases arising in the Courts of Ordinary.
There is a general grant of jurisdiction in cases"wbich may be pointed out by law, which arise in inferior judicatories, in the following words: “ And the said Superior Courts shall have appellate jurisdiction in such other cases as may be pointed out by law, in cases arising in inferior judicatories.” Cobb’s N. D. 1121. Whenever, therefore, the Legislature authorizes an appeal in cases arising in inferior judicatories, the jurisdiction granted by the Constitution attaches. By the Act of 1805, appeals are authorized from the decisions of the Courts of Ordinary. Cobb’s N. D. 283. The jurisdiction of the Superior Courts, upon appeals from the Court of Ordinary, is thus founded in a constitutional grant. Not content with this general grant, the framers of the Constitution farther provided for appeals from the Courts of Ordinary, in these words: “ The powers of a Court of Ordinary or Register of Probates, shall be vested in the Inferior Courts of each County, from whose decision there may be an appeal to the Superior Court, under such restrictions and regulations as the General Assembly may by law direct, &c.” Cobb’s N. D. 1122. Here is a special grant of jurisdiction, with power in the Le-
It is equivalent to a confession of judgment by the mov
Upon these views, we are satisfied that an actual decision by the Qrdinary was not necessary to tho validity of this appeal, and that Judge Starke was right when he declined to sustain the demurrer to the plea on that ground.
Upon the other point, to wit: that the issue on the caveat was not appealed on, because that issue had not been reached when the consent was made, and might not have been reached at all, we cannot entertain a doubt. That issue Avas made by the caveat and the executor’s traverse of the caveat. It was part and parcel of the cause, and it Avas not the less so because the matter pleaded in bar preceded it, and stood for adjudication as a preliminary question. It is true that if the parties had not appealed and tho case had taken the regular course, the Court of Ordinary might have determined the plea in bar in favor of the executor, and in that event no decision would have been made' on the caveat, and upon it the jurisdiction of the Superior Court could not have been invoked. But we have no right to assume that the decision of the Ordinary would have been in favor of the executor on the former question. When the consent Ava-s made, both questions were on tho record for consideration. The appeal carried up the case as it stood- — the whole case — and presented it for the consideration of the appellate Court, just as it stood beloAv. The determination of the issue on the caveat, the issue of devisavit vel non, Avas as much a contingency before the Superior Court on the appeal, as it was before tho appeal before the Ordinary. By the judgment of tho law, as Avell as by the express agreement of the parties, wo think the AArholo case Avent up. t
Let the judgment be affirmed.