86 Tenn. 277 | Tenn. | 1888
Lead Opinion
In June, 1858, John Brown died in Maury County, leaving a widow and two children, a son and daughter, surviving him. He was the owner of a very large estate. Tie left a will, which was duly probated in July, 1858. After providing for the payment of his debts, the comfort of his widow, and the maintenance of his children during the minority of his son, this will proceeds:
“ Item 4. Upon the coming of age of my son, and after the division and allotment to my wife, as aforesaid, shall have taken place, I will and direct that the residue of my real and personal estate be equally divided between my two children.
* * ■ * * * * * * * *
“Item 5. I will and direct that the property, real and personal, which my children shall take tinder this will shall, upon the death of either of them without leaving a child or children, or the issue of such child or children, living at his or her death, go to the survivor of them; and should both of my children die without leaving a child or children living at their death, then, and in that event, I direct that the property given to them as hereinbefore provided, embracing that which they may get as survivor, shall go over to and be*282 equally divided among the children of my deceased sister, Elizabeth Stewart,, and of my brother, Hamilton Brown, taking per capita; and in case any of said children should be dead, but leaving children then living, such child or children shall represent the deceased parent, and take such interest as said parent would have taken if alive.”
The controversy arises on these two items.
Testator’s daughter died in 1858 without issue. March 1st, 1878, testator’s son, John P. Brown, filed his original bill in the Chancery Court of Maury County, asking a construction of the said fourth and fifth' items of his father’s will, insisting that the limitations over, contingent upon the death of his sister and himself without issue living at that time, were void, and claiming the whole estate. This bill was filed against H. A. Brown and his two children, Thomas and Hamilton, citizens of Maury County, and James Stewart, Jane Collett, Ann Pointer, and others, the children and grandchildren of Elizabeth Stewart, deceased. H. A. Brown is the son of Hamilton Brown, mentioned in the fifth item of the will. Process was issued and served upon him and his two children. Publication was made for the non-residents, save two omitted by mistake. II. A. Brown answered the bill, raising a single issue, denying the construction placed upon. the will by the bill, insisting that the limitations over were valid. Guardian ad litem was appointed for Thomas and Hamilton Brown, and he
In this state of the pleadings the cause came on for hearing, and the Chancellor decreed in defendant’s favor, construing the fifth item of the will as creating a valid executory devise in favor of the children of Elizabeth Stewart and Hamilton Brown, and dismissed the bill. The complainant, John P. Brown, appealed to this Court. This was in Uo-vember, 1878. Pending this appeal, the General Assembly passed the Act of March 25th, 1879,'en-titled “An act to relieve the dockets of the Supreme Court of Tennessee of the great number of cases now encumbering them, and for the appointment of a special commission,” commonly known as the Commission Court. On the first Monday in October, 1879, this cause was heard before the Commission Court, and held under advisement until 'the 20th of January, 1880, on which day a decree was rendered by that Court, whereby the decree of the Chancellor was declared to be erroneous, and was reversed. The decree of the Commission Court set forth and construed the fifth item of the will, and declared void the executory devises of that item to
Pending this suit John P. Brown married, and one child was born to him. This child died in October, 188L On the first day of January, 1882, John P. Brown died without issue living at his death, but leaving surviving him his wife, Maggie C. Brown. He left a will under which his widow and his nephew, Hoy Alexander, and his niece, Mamie Cole, are claiming the estate; and in this will Wiley J. Embry was nominated executor, and was duly qualified; and all these parties are properly represented in the record. It is not necessary to the settlement of the questions arising in this cause to notice the will of John P. Brown -in terms more particular.
On the 9th day of March, 1882, J. T. Stewart, and all others entitled in the Elizabth Stewart interest, presented their petition to this Court, in which, along with other grounds of relief not necessary now to notice, they sought to have the decree of January 20th, 1880, opened under the provisions of the Code, §§ 4379-4381 (New Code, §§ 5122-5124), providing for a three years’ saving in behalf of non-resident defendants not served
At the April term, 1882, of the Chancery Court of Maury County these same parties presented their petition to that Court, reciting the foregoing facts, and others not now necessary to notice, insisting that, under a proper construction of the said fifth item of the will, they were entitled to the estate, and asking to have the decree opened under the sections of the Code above cited, and accompanied the petition with bond for costs, and prayed leave of the Court to file it. Thereupon, the Court ordered the .petition, exhibits, and bond to be filed, subject to all lawful defenses and exceptions, including the right of the persons made defendants thereto to move the Court to take the petition from the files; and further ordered that process issue, as prayed for in the petition, against Wiley J. Embry, executor of John P. Brown, Maggie C. Brown, his widow, the nephew, Roy Alexander, and his guardian, E. IT. Hatcher, and likewise against Mamie Cole, returnable on the first Monday in October, 1882, that being the first day of the next ensuing term.
The petition was filed on the 27th day of April, 1882, and the process was duly issued and executed. At the October term, 1882, Wiley J. Embry, ex-
The sections of the Code under which the questions made in this case arise are as follows. After providing for suits brought by attachments of property, the Code proceeds:
“ Section 4379. In all other cases a decree against a defendant, without personal service of process, who does not appear to defend, is not absolute for three years from the decree, unless a copy of the decree is served upon the defendant, in which case it becomes absolute if the defendant fails to come forward and make defense within six months after service.”
Section 4380 is not important in the present inquiry.
“ Section 4381. The original defendant, his heir, representative, or assignee, claiming under him by virtue of any act done before the commencement of the suit, may, within six months after service of a copy of the decree, or. within three years after the decree, be admitted to answer the bill, upon petition showing merits and giving security for the payment of costs; and witnesses on both sides*287 may be examined, and such other proceedings may be had thereon as if the cause were then newly begun.”
Many grounds were assigned in support of the motion to dismiss in the Chancery Court, and the same grounds are relied on here. Leaving out of view for the present the fourth and seventh ground, the others may be summarized as follows: That a final decree having been rendered in this cause in the Chancery Court in November, 1878, and appeal having been prosecuted to the Supreme Court, and final decree entered in the Supreme Court, there was and could be, when the petition was filed, no such cause in the Chancery Court as John P. Brown v. H. A. Brown et al. — this cause — and that this petition was unknown to the forms of law; that the petition was an effort to re-instate or rehear a cause finally disposed of both in the Chancery and Supreme Courts; that it was an effort to review the decision of the Supreme Court on a question of law; that the decree of the Supreme Court was a decision on the merits, and a final adjudication between the parties in matters both of law and fact, and could not be again inquired into in this form; that the petition failed to show any other or additional fact not fully passed upon and adjudicated already by both the Chancery Coui-t and the Supreme Court; that the petition was an effort to attack the decision of the Supreme Court, and this could only be done by original bill; that being professedly a proceeding under §§ 4379-4882 of
"We are of opinion that, although a final decree had been entered in this cause in the Chancery Court more than three years before the presentation of the petition, and an appeal had been prosecuted by the complainant from that decree to the Supreme Court, and judgment final had passed in the Supreme Court, the petition was properly presented to the Chancery Court within three years of the final decree in the Supreme Court. We reaffirm the ruling heretofore made when the petition was presented to this Court: That to allow a petition under these sections of the Code to be presented to this Court would be to invoke the exercise of original jurisdiction by this Court, whereas it has only appellate jurisdiction. 6 Bax., 95; 9 Lea, 21. Hence, if the non-resident has no remedy in the infei’ior Court, the statute would be a dead letter, for the reason that the resident litigant could, by appealing to this Court, always place the decree in a condition, where it could not be disturbed. He could reply to the non-resident’s application: “You have no standing in the Supreme Court, because that Court cannot exercise original jurisdiction; you have no standing in the Chancery Court, because the decree is vacated by the appeal,
Nor is it in any aspect an effort to review the action of the Supreme Court. It is not a proceeding for the correction of errors in any sense. But where the case provided for in the statute is made out, then the condition that by operation of law inheres in every decree against non-residents not served with process and not legally appearing in the cause, emerges; and where a petition in proper form is presented to the proper court, and contains the averments required by the section of the Code referred to, a way is at once opened for the judicial ascertainment of the status which renders the decree null by reason of the infirmity that inheres in it through the implied condition imposed by law; and where the Court adjudges that the petition is in proper form, and contains the matters of substance required by the sections named, then, by the allowance of its unconditional filing, ex vigore 'statuti, the decree before entered is annulled, and the original status is restored.
Nor do we think it necessary that the petition should be accompanied by an answer. The language of the statute is that the non-resident “may be admitted to answer the bill upon petition showing merits and giving security for the payment of costs.” He is first to acquire his status by the
The fourth ground presents the point that the original hill was a suit against a class of persons having a common right of defense, and that a decree against the representatives of the class before the Court would he binding on the whole class; and hence that the case would not fall under the sections of the Code cited. Not deciding the point that such a case would or would not, as to the non-residents, fall under the statute, on inspection of the original hill we find that the persons made defendants therein are not proceeded against as a class of persons. This is indispensable in order to invoice the operation of the chancery rule on that subject: “Where it is attempted to proceed against two or three individuals as representing a numerous class, it must be alleged that the suit is brought against them in that character.” Lanchester v. Thompson, 5 Madd. Ch. Rep., 15, 16. In the case at bar the defendants were proceeded against individually under the license given in subsections 1, 4, and 5 of Section 4352 of the Code, and no attempt whatever was made to fix upon any of them a representative character, either within the letter or spii’it of the chancery rule.
The seventh ground assigned for dismissing the petition makes the point that the petition shows no merits. This necessitates a construction of the fourth and fifth items of the will above quoted.
It is insisted that this operates to create a perpetuity; that it is, in effect, a devise to the “unborn child of an unborn child,” or may, per possibility, result in that, and hence is void. We concede the point that for the purposes of this construction the will must be looked to as matters stood at the dea/th of testator, when it went into effect, and that subsequent evénts cannot he noticed in aid of the construction; and that if, on a fair construction of the will as matters then stood, it is open to the legal possibility of producing a result violative of the settled policy of the law, it must he declared void. It is conceded that a devise eo nomine, to the “unborn son of an unborn son,” would he void for remoteness, and he in violation of .the rule against perpetuities. It is con
The misapprehension arising out of this circumstance will be cleared up by a consideration of the rule that “a devise to the unborn son of an unborn son is invalid” in connection with the broad general rule governing this class of inquiries, wherein it will be seen that the rule just quoted presents but a particular aspect, as it were, of the general rule, and -is, so to say, but a corollary of it.
“To constitute a valid executory devise, the contingency upon which it is to take effect must occur within a life or lives in being and twenty-one years and a fraction of a year afterward.” Booker v. Booker, 5 Hum., 508; 4 Kent, 295 and 317; 1 Jarmon on Wills, 518; 2 Redfield on Wills, 845; 1 Wash. on Real Prop., p. 97, Sec.- 57.
This is the fundamental and controlling rule underlying the doctrine against perpetuities, and is to be applied to the will at the death of testator;
Mr. ' Washburn e says: “As will be shown hereafter, it has become an imperative and unyielding rule of law * * * that no estate can be given to the unborn child of an unborn child.” 1 Wash, on Real Prop., p. 97, Sec. 57. “The rule already mentioned is one of universal application that a limitation to the issue of an unborn person would be, under all circumstances, too remote, and void if he is to take as a purchaser.” 2 Wash., p. 667, Sec. 8.
This rule is laid down strongly also in Brudenell v. Elwes, 1 East, 452, 454; Jackson v. Brown, 13 Wend., 442, 443; and see 2 Wash., 539; and, thus broadly enunciated, seems to sustain .complainant’s contention. But we apprehend there is a distinction. Lord Kenyon, who delivered the opinion in Brudenell v. Elwes, said in Long v. Blackwell, 7 Term Rep., 102: “ It is an established rule that an executory devise is good if it must necessarily fiap: pen within a life or lives in being and twenty-one years and the fraction of another year, allowing for the period of gestation.” In Wilkinson v. South, 7 Term Rep., 558, the same learned Judge again says: “ The rule respecting executory devises is extremely well settled, and a limitation by way of executory devise is good if it must take place
“Indeed, it is clear, from Cadell v. Palmer, that even a long succession of estates for life to unborn persons and-their issue is valid, if subjected to the restriction that in order to take they must come into existence during lives in being and twenty-one years afterward.” 1 Jarmon on Wills, 548.
“ It seems to be settled that a devise to an unborn person will be valid if the will provides that in order to take they must come into being during the continuance of lives in existence and twenty-one years.” 2 Bedfield on Wills, 850, Sec. 19.
“Whatever may be the number of limitations after the first executory devise or limitation by deed by way of springing or shifting uses of the whole interest, any one of them which is so limited that it must take effect, if at all, within twenty-one years after the period of a life then in being, may be good'in event that no one of the preceding executory limitations which would carry the whole interest happens to vest.” ‘ 2 Washburn on HettL Prop., 354 (margin).
In the case of Coster v. Lorillard, 5 Paige, 172, the devises were of this character: “To trustees in fee, in trust to receive the rents and profits, and pay over and divide the same equally between twelve nephews and nieces, and the survivors and survivor of them, during their lives, respectively; and after the death of all the testator’s nephews
Chancellor Kent, in commenting on this case, says: “ The will would have been good under the English law, and the law of Hew York as it stood before the Revised Statutes of 1830.” 4 Kent, 272, note b.
In this case some of the devisees might have been the unborn children of unborn children, as matters stood at testator’s death.
In the Matter of Ryder, 11 Paige, 185, rents, and profits, and income of real and personal property, were devised and bequeathed to a feme-covert for life, for her separate use, free from the control of her then husband, or of any future husband, with remainder to her surviving children, and to the issue of such of her children as should have died leaving issue at the time of her death.
“ Here,” the Court says, “ the children have only a contingent interest, even in the capital of the estate; and the extent, even of that contingent interest, cannot be ascertained while the mother is alive and is capable of bearing children; for the afterborn children are equally entitled with those who are in esse at the death of testatrix. And such of the children as may happen to die in the lifetime of their mother will have no right to the estate, even if they should leave issue, for the estate, -in that event, is given to the issue, and not to them,”
The distinction resides in this: A devise to the unborn child of an unborn child, eo nomine, is void, because it may not take effect within a life or lives in being, and twenty-one years and the fraction of a year thereafter.; but when by the express terms of the devise the limitation over must take effect within the life or lives of persons in being, then the reason supporting the objection fails, and the limitation is good.
The opinions in the Eden will' case, reported in 2 ' Cowan, 333, do not involve the present controversy. By the terms of that will the testator’s brother and sister were to take his property in the event that his two sons, the first takers, should both die without lawful issue. The ulterior devise was held void, because limited upon a contingency too remote — the indefinite failure of issue of the two previous devisees. And see Waring v. Jackson, 1 Pet., 570.
This objection cannot be urged against the will now under consideration. Here, by the express terms of the will, the limitations over are to take effect immediately upon the death of the survivor of testator’s two children, lives in being at the date of the will and at the death of testator; hence, the contingency upon which the estate is to. vest cannot, by any possibility, be for a longer time than a life or lives in being, and twenty-one
In truth, the estate devised to John Brown’s children was a fee, determinable upon their dying without issue living at their death. On the general principles governing contingent estates, it would seem that no estate could be limited to take effect after a fee-simple; but under the doctrine of uses and executory devises this is often done. 1 Washburn on Meal Prop., p. 76, § 76.
“ A devise in these words, ‘ I give unto my three sons — A., B., and C., — all my other lands, etc.; also, my will is, that if either, or any, of them should die without children, the survivor, or survivors, to hold the interest or share of each, or any, of them so dying without children, as aforesaid,’ passes an estate in fee-simple, determinable on the contingency of their dying without issue, and on that contingency vesting in the survivor, or survivors, by way of executory devise.” Richardson v. Noyes, 2 Mass., 56.
By one clause of a will an absolute estate in land was vested in testator’s son; by a subsequent clause it was provided that if the son should die without heirs, the land should be divided between testator’s three daughters. It was -held that the latter clause raised an executory devise over in favor of the daughters, upon the contingency of the son dying without heirs or children; that if the contingency happened, the limitation over took
In the case now in judgment the contingency happened, and we have seen that the limitations over do not violate any principle of law.
So we conclude that II. A. Brown and the children of Elizabeth Stewart took a valid estate in fee, per capita, on the death of John P. Brown; and that the places of such of Elizabeth Stewart’s children as are dead are filled by their children; and in showing this in their petition the. nonresidents showed merits under the statute.
But here we are met by the objection that the merits required in the statute must be some new fact not passed upon by the Court before, and that it cannot be an issue of law. We do not agree to this view. The purpose of the statute was to place the non-resident who comes within its saving in the same plight as if the cause were then .newly begun — when he presents his petition and is admitted to defend; that is, to place him in the same status as if the cause were just standing for defense. It is obvious that by this construction he could make an issue of either law or fact. Any other construction would be but to offer a benefit with one hand, and withdraw it with the other.
We are, however, confronted with the case of Ledgerwood v. Miller, (MSS., Knoxville,) and it is pressed upon our attention as an authority oppos
II. A. Brown’s rights stand on a different footing. He has had his day in court. He now joins in the petition with these non-residents, and seeks with them to have the decree opened, to be again allowed to litigate the issue. He alleges certain special grounds of relief, impeaching the proceedings of the Commission Court. We express no opinion as to the questions made by him on the decree of the Commission Court. We hold that he cannot make these questions by joining in a petition with non-residents seeking to have tlie benefit of the statutory saving, and certainly cannot have the relief vouchsafed to non-appearing defendants only. If he has any rights left, which we do not decide, he should have presented them by an original bill.
The decree of the Chancellor is accordingly affirmed in so far as it dismisses the petition as to
Judge M. M. Neil, of the Trenton bar, was appointed by the Governor, on the 18th of January, 1888, to serve during the temporary absence of Judge Caldwell.
Rehearing
ON PETITION TO REHEAR.
The following opinion was delivered on petition to rehear:
This cause was decided at a former day of the term, and an opinion was then delivered construing Code, Sections 4379-4381 (New Code, 5122-5124), in some points, adjudging the validity of certain clauses in the will of John Brown, deceased, and their meaning, sustaining the petition to open the decree rendered within three years next before the filing of the petition, and remanding the cause to the Chancery Court of Maury County, to be proceeded in as if newly begun.
We are now asked to rehear the cause, and to so modify the decree as to permit an answer to the petition, to the end that complainants may therein show cause why the decree should not be set aside, either by denying the facts alleged, or by bringing forward any such other facts as will show that said petition should not be sustained; as, that petitioners had notice of the decree under
We do not, think the statute contemplated that a side issue should be made and fought out upon the petition. ETor yet was it intended that any substantial rights of the complainants should be impaired by the opening of the cause; further than the mere fact of granting a retrial may be said to impair rights. The gist of the matter is, that whereas the cause has been heretofore tried, and the rights of certain persons determined without their being heard in their own defense, they being absent, and having no legal, actual notice of the proceedings; they are now, within the statutory period, allowed to come in and be heard. The Court has simply ordered that the cause do now stand for answer, as if newly begun.
This order is made upon a particular state of facts, as shown by a petition filed in the cause, taken in connection with the other parts of the record in the' particular controversy under consideration. The complainants in that cause cannot justly complain. They have invited the defendants to meet them and contest the matters set out in
Whether the other elements that complainants now desire to add to the controversy have any merit in themselves, or any existence, in fact, we cannot consider, because there is nothing whatever in the record on the subject. We may, however, make this remark, on complainants’ suggestion that they should have the right to show notice of the decree under the statute: The language of the statute is:
* * “A decree against a defendant without personal service of process, who does not appear to defend, is not absolute for three years from the decree unless a copy of the decree is served upon the defendant, in which case it becomes absolute if the defendant fails to come forward and make defense within six months after service.” New Code, Section 5122. “ The original defendant, his heir, etc., * * may within six months after service of a copy of the decree, etc.” * * * New Code, Section 5124.
Wo are of opinion that the service of a copy of the decree here spoken of need not be an official service, but may be proven by any competent testimony; and we are further of the opinion that when such service has been indeed made, that fact may be brought forward by supplemental bill, as, indeed, may any material matter that has arisen since the entering of the decree, or any other ma
If such notice has been given it will, in connection with the decree, operate as an effectual estoppel upon the defendants. The question whether such notice has been given or not, must, or may be, in any ease a matter of controversy, which may depend upon mixed questions of law and fact, to be decided upon proper issues.
What we have settled on this point, and what we still adhere to, is that when the petition ' is filed, as in this case, under the statute, and there is no entry upon the record, or' other record evidence in the cause, showing that service of the decree has been made upon the defendant, and the petition, as in this case, negatives such service, and contains the other averments required by the statute, and is otherwise in proper form, it should be received by the Court, and if not fatally contradicted by the record the petitioner should be admitted to answer; and when this occurs the petition has served its purpose, and all controversies are transferred to tlie pending cause, including every question of notice of the decree, if there should be such in fact, and any and every material matter that has arisen since the decree was entered, and every other material matter that may be brought forward by proper pleading.
It is suggested in the petition to rehear that this is a dangerous holding. It is our duty not
And the practice of setting aside judgments by default in courts of law, upon petition or affidavit, is very common, and it does not appear that any answer has ever been allowed to such petition, or any countervailing evidence heard in any form. Bank v. Skillern, 2 Sneed, 698, 699; Jones v. Cloud, 2 Cold., 236; Mailroad Co. v. Dowd, 9 Heis., 179; Tucker v. James, 12 Heis., 333-337.
The principle underlying all these particular instances is, that, in obedience to the spirit of our free institutions, no man’s property, estate, or rights shall be taken from him except by due process of law; and after a fair opportunity has been afforded him to be heard, of which opportunity he cannot
But it is argued that complainants should have the right to answer the petition, because it prays for process, and that pi'oeess was issued and served upon them. It is true that such process was issued and served, and that when the petition was dismissed, the Chancellor likewise caused an order to be entered quashing the process. In these facts, however, wé find no ground for altering the views already announced. The petition was filed as a petition purely, under the sections of the Code in question; not, certainly -as to these non-residents, to tender any matter of litigation, but simply to secure the right to make defense to a bill already filed. If the petitioner erroneously prayed for the issuance of copy and a subpoena to answer in regular form, as in .case of bills in chancery, when in. fact such practice was not proper, that could not change the legal rule, and give the right to answer when none before existed.
This precise difficulty was presented to the Court several years ago in certiorari cases; and although the Article of the Code regulating the practice in that class of cases made no provision for the issuance of notice to the creditor, except in the event of a siqoersedeas, which the section (New Code, Section 3848,) provides shall be directed to the opposite party, or the officer in whose hands the execution may be, still -the Court held, and, wo think, very properly, that the opposite party was entitled to notice of the filing and pending of the petition, and, reasoning from the general rule for the service of process, declared that the notice must be served at least five days before the term at which the petition was to be acted on, and that unless such notice had been given the opposite party would not be in default in failing to
This practice of issuing a simple notice in pending causes, or in those not wholly and finally determined, is of very frequent occurrence in our Code, when the purpose is simply to ■ apprise the opposite party that something is transpiring, or proposed, or done, that may affect his rights, and it is desired that he. have opportunity to be present to protect these rights; as, where the Chancellor is asked in vacation to hear motions and make interlocutory orders and decrees to prepare causes for final hearing and determination (Hew Code, §§ 5153, 5155); or to dissolve an injunction (Jb., § 5194); or to appoint a receiver (lb., § 5201); or when a party is under attachment for contempt for the non-performance of a decree, and a habeas corpus is sued out in the same court for his dis-chai’ge (lb., 5231-5233); so, where a party makes a motion to correct a judgment in the Circuit, Chancery, or Supreme Courts, or before a Justice of the Peace (lb., §§ 3508-3591);' or where an administrator is to settle his accounts (lb., § 4845, sub-sec., 15); or petitions to resign (lb., § 3078); and in summary proceedings generally (lb., §§ 4330, 4331, 4360); and in this manner arbitrators are re
¥e are of opinion that the proper practice in such cases as the one now under consideration requires only a notice similar to that so well settled in certiorari cases, and that such notice should always be issued and served before the petition is acted upon by the Court; but the process served in this cause seems, for this particular litigation, to have answered all the purposes of notice in proper form to apprise, the parties of the matter in hand, and to bring them into court, and ’so much of it as required the complainants to answer the petition was merely surplusage.
But complaint is made in the petition to rehear, that we have settled the whole controversy in passing on the validity of the petition to reopen the cause. It may be true that the principles declared in the former opinion do practically settle the contest against the complainants, but in form the decree ordered by the opinion simply adjudges that the petition is good, and remands the cause to the Chancery Court, to the end that petitioners may make defense to the complainants original bill.
In determining the sufficiency of the petition it became necessary to try the question, whether it showed merits, and to settle this question it became compulsory upon us to construe the will of John Brown, deceased. To this labor we were invited by counsel upon both sides, with a zeal
The result which complainants seem to have reached is not infrequent in litigation. It often happens that an entire controversy is in effect settled by the judgment of the Court upon a demurrer, or a motion to dismiss, wherein the principles governing the controversy being settled, and there being no dispute about the facts, subsequent litigation, while not impossible in form, becomes impracticable in substance.
It is respectfully suggested that, in another branch of the inquiry, we disregarded the authority of McCaleb v. Crichfield, 5 Heis., 288-292. The opinion delivered in this cause, at a former day of the term, contains, on the point indicated by the objection now under consideration, the following language: “The fourth ground presents the point that the original bill was a suit against a class of persons having a common right of defense, and that a decree against the representatives of the class before the Court would be binding on the whole class, and hence that the case would not fall under the sections of the Code cited. Rot deciding the point that such a case would or would not, as
That case was as follows: Iienry Crichfield died, leaving a will, by the fifth and sixth clauses of which he provided: “All the remainder of my estate, including land and personal property, shall be sold by my executors, and proceeds equally divided between all my grandchildren, and also William Ball, a son of a granddaughter.” Sixth’ clause: “And if any of my grandchildren should die after my death, the share going to such grandchild shall be equally divided between his or her brothers and sisters, provided the deceased has not received his share before his death.” Three of the grandchildren, and the assignee of another grand
It is obvious that McCaleb v. Crichfield does not present the case, nor was it intended to present the case of one or a few members of a class standing for all others, in which, while the unnamed members are not parties by particular designation, yet they are in substance and legal effect parties by substitution and representation of their legal vicariate; but, on the contrary, it presents the case of a dispensing with parties who would be necessary to the cause at the outset but for the special circumstances of exception set up in the pleadings. It was not contended by any one, nor was it held by the Court, that any party to the record represented or stood in the stead of any other person whose rights were involved; nor does the Court by any other means hold that the rights of the parties so dispensed with could be in anywise affected by such decree as might be rendered in the cause upon the hearing, but, so far from this, the bills were allowed to stand for the purpose of decreeing the shares only of the parties before the Court; and this, instead of antagonizing the
Indeed, the only similarity between McCaleb v. Crichfield, and the case at bar, is that in both the other persons interested, or supposed to be interested in' the estate, are described as unknown and numerous. But, while in McCaleb v. Crichfield the fact is brought forward in order to enable the complainants to dispense with their presence, in the case at bar the allegation is made to enable the complainants to make the unknown persons parties in their own right, under the provisions of Code, §4352 (New Code, §5095), and the prayer of the bill asks that they be made parties, and to that end that publication be made. The caption of the bill, after naming as defendants nineteen persons as children or grandchildren of Elizabeth Stewart, proceeds (still making parties), “and all the unknown children and grandchildren or heirs
We think it very clear that the hill sought to make all of the children and grandchildren of Elizabeth Stewart defendants, each in his own right, and that no defendant was sued in a representative capacity; and we know of no authority that impeaches the rule laid down .in the former opinion, that where it is attempted to proceed against two or three individuals as representing a numerous class, it must be alleged that the suit is brought against them in that character. Certain it is that McCaleb v. Critchfidd is not such an authority. Moreover, the rule is founded in inherent justice, and could stand by its own strength, even if it were unsupported by the eminent authority which has been adduced in its behalf. It is without doubt highly important that the Court, by proper pleadings, should be apprised of the fact that the party named as defendant does not appear in the record in his own right merely, but, by construction of law, representing in his own person the rights and interests of others. Being so informed, the Court has imposed upon it a duty, especially in the supervision of agreements and compositions during the trial, as well as other points looking to a fair presentation of the case, similar to the duties imposed where the rights of infants are involved. And for a stronger reason must this be true, when the fact is considered that it is always in the power of one about to file such a bill to select
It is insisted that it appears in the petition that other parties have acquired rights under the decree, and that these rights are protected under the provisions of Code, §4383 (blew Code, §5126). That section reads as follows: “ The decree, if executed before it is set aside under any of the foregoing provisions, will be a protection to • all persons acting upon its validity, and *will confer a good title to all property sold under it.” The page of the petition referred to contains a .recital, setting forth the fact ■ that John P. Brown had exempted a mortgage upon certain portions of the property in May, 1880, to secure a loan.
This person, the mortgagee, is not before the Court, and in a matter so nearly affecting his rights, the Court will express no opinion in his absence. It is sufficient to say, that whatever may be his rights or claims, they cannot be allowed to interfere with the rights of the parties before the Court, as between themselves.
It is also urged that as Sections 4379 to 4383 have been declared inapplicable to divorce proceed
We need not discuss the reasons which controlled the decision of the Court in the case of Owen v. Sims, supra. By an examination of that case it will be seen that the action of the Court was based, partly on the fact that the petition to open the decree was not presented until after the death of the complainant, and, being a divorce suit, the subject-matter of the litigation was then sunk in the grave of the husband, and that to open such a case would be an anomaly and an absurdity; and partly on the peculiar nature of divorce proceedings, the repose of society, the danger that one or the other of the divorced parties might
Hor can any firmer support he found in the principles that govern the results of causes tried under the issue of devisavit vel non. If our time would permit us to go far into an inquiry so purely collateral to the present controversy, as to set forth the general nature of proceedings in rem, and compare them at large with the principles governing the class of controversies involved in the present litigation, and to note their correspon-dencies and differences, we much doubt the utility of such an intellectual excursion, and indeed fear that it would be altogether out of place. It may he sufficient to say that in proceedings in rem, all persons in interest are parties — or, as it is sometimes said, the whole world are parties, and any person having an interest in the property may interpose a claim and prosecute an appeal from the sentence or decree; and it is said that notice is served upon the thing itself, and that thereby all persons interested are presumed to have notice, because it is the part of common prudence for all persons who have an interest in the property to guard that interest by persons who are in a situation to protect it. Croudson v. Leonard, 4 Cranch, 437; 9 Cranch, 144.
It is said that “the judgment of a Probate Court, allowing proof of a will and admitting it
In Tompkins v. Tompkins, 1 Story Rep., 547, it is said, “the reason is, that it being the sentence or decree of a Court of competent jurisdiction, directly upon the very subject-matter in controversy, to which all persons who have any interest, are, or may make themselves parties, for the purpose of contesting the validity of the will, -it necessarily follows that it is conclusive between those parties. For otherwise there might be conflicting sentences or adjudication upon the same subject-matter, between the same parties, and thus the subject-matter be delivered over to interminable doubts, and the general rules of law as to the effect of res adjudicata be completely overthrown. In short, such sentences are of like nature as sentences in proceedings in rem, necessarily conclusive upon the matter in controversy for the common safety and -repose of mankind.” 5 Cold., 77.
In Hodges v. Bauchman, 8 Yer., 187, it is said: “ The probate of a will or the granting of letters of administration, is a proceeding in the nature of a proceeding in rem, operating on the subject-mat
If, in the last analysis, when on the one hand we compare probate cases' with other litigations over the succession to personal and real property,
The petition to rehear does not state the report correctly. True, some such language in effect was used in the report, arguendo, hut afterwards, speaking to the same point, the conclusion reached by the report is that all of the children and grandchildren of Elizabeth Stewart — -as well those designated as those proceeded against as “unknown”— were by virtue of the provisions of the statute in that behalf, and the action of the complainants thereunder, made defendants to the bill, . and as such, were concluded by the decree, and hence entitled to present the petition for reopening the cause. "We concur in that result.
This disposes of the statements in the petition touching all the persons above named, except Oath-
E. II. Greer, Parker Morris, and Peter Loveline appear as petitioners by reason of their marital relations.
It is impossible to say from the record whether the person made defendant to the bill under the name of Catherine E. Loveline is the same person who appears in the petition as Catherine E. Loeb-line; if they are different persons, then Catherine E. Loveline has not petitioned to open the decree, and must therefore be bound by it; if the two names represent one and the same person, and the name was wrongly stated in the bill, then she became a defendant under that clause of the bill which made the unknown children and grandchildren of Elizabeth Stewart defendants, and prayer for publication against them as such; and in any event the question is immaterial, because the decree to open is in favor of the petitioners only, exclusive of II. A. Brown.
These various questions were not overlooked on the first consideration of the cause; all of them were thoroughly weighed at the time, but not being deemed of commanding importance in the controversy, save one, they were not dwelt upon at length, and some were omitted altogether in the discussions of the opinion then delivered, to the end that the opinion might not be too much ex
Let the petition to rehear be overruled with costs.