189 S.E. 139 | W. Va. | 1936
Lead Opinion
This certification presents for review the action of the circuit court of Kanawha County in sustaining in part and overruling in part the demurrer to a bill in chancery wherein E. O. Canterberry is plaintiff and M. O. Canterberry and Clara A. Canterberry are defendants. The main purpose of the suit is to impeach the purported will of G. F. Canterberry, deceased.
The instrument challenged was probated October 30, 1930. This suit was instituted October 29, 1935. The bill was filed February 3, 1936.
The first question presented is as to what limitation period applies.
At the date of the stated probate, there was in force and effect a statute (Code 1923, Chapter 77, Section 32) which provided that after the probate or rejection of a will by a county court "a person interested, who was not a party to the proceeding, may, within five years proceed by bill in equity to impeach or establish the will * * *. If no such bill be filed within that time, the sentence or order shall be forever binding." By Code 1931,
We are of opinion that the plaintiff continued to have five years after the probate of the will within which period to institute suit for impeachment. At the time of the probate the plaintiff's right to sue within five years came into being. Such right must not be deemed to have been interrupted by the statute which became effective about two months later, unless it clearly appears from the new statute itself that it was intended to be retroactive. The statute discloses no such legislative intent. The case of Harrison v. Harman,
The demurrants place much reliance on the case ofMcClintic v. Ocheltree,
The situation at bar is entirely different from that case. Here, the new statute, cutting down the limitation period, was enacted immediately following probate and after the plaintiff had come into the enjoyment of his privilege to undertake impeachment of the will. That privilege, having been given by an earlier statute, could, of course, have been curtailed by later legislative enactment even after right of action arose, but such will not be presumed to have been the legislative intent. Harrison v. Harman, supra.
Repealer sections of the new Code also have bearing on the instant situation. All acts of a general nature in effect on the day preceding the effective date of the new Code were repealed, subject to exceptions and limitations stated in the statute. Code 1931,
If the new statute (Code 1931,
The second question is whether the suit was brought in time, considering that the bill was not filed until after the expiration of the five-year period.
The defendants insist that, if the five-year limitation is considered by the court to be the applicable period, the filing of the bill nevertheless came too late. It is urged that under the language of the statute not only must the suit be instituted, but the bill must be filed within five years. The language of the statute is that "a person interested, who was not a party to the proceeding, may, within five years proceed by bill in equity to impeach or establish the will * * *." Code 1923, Chapter 77, Section 32. This authorization of a proceeding by bill "within five years" does not carry the requirement that the bill actually be filed within that period. If the suit is begun within the prescribed time, the date of the filing of the bill is not controlling. The statute must be construed in the light of pertinent decisions of the court of last resort of the state. For a long time, it has been the settled law of this jurisdiction that when a bill in chancery is filed, it relates back to the time of issuance of process in the suit. Finance Trust Co. v. Fierbaugh,
The matters pertaining to the two-year statute and the five-year statute constituted the first and second points of demurrer, respectively. For the reasons stated, we are of opinion that the learned chancellor was in error in sustaining these points of demurrer.
The third ground of demurrer is a challenge of the sufficiency of the bill's allegations charging that the paper writing admitted to probate October 30, 1930, as the last *187 will of G. F. Canterberry, deceased, was not in fact his last will and testament. The demurrants assert that it appears from the paper filed with the bill as a copy of the purported will of said decedent that he, in fact, had properly executed the original. This deduction from the exhibit is not warranted. The original may, or may not, have been properly executed. Proper determination can in no wise be made from the face of the exhibit. The plaintiff's unequivocal averment that the original paper "bears neither the signature nor the seal of the said G. F. Canterberry, deceased * * *" is sufficient to put the matter on proof. The trial court correctly held that this ground of demurrer was not well taken.
The last assignment of basis of demurrer extends to the portions of the bill which seek an accounting from M. O. Canterberry, devisee, and from Clara A. Canterberry, devisee and executrix under said purported will. This matter cannot properly be included in a bill for the impeachment of the said instrument. Suits of this sort can have but one purpose, namely, to establish or impeach a challenged instrument purporting to be a will. Ward v. Brown,
Thus, having answered the several queries involved on the certification, we reverse the trial court as to points one and two, affirm as to points three and four, and remand the cause for further proceedings not at variance herewith.
Reversed in part; affirmed in part; remanded.
Dissenting Opinion
I am obliged to disagree with the conclusion which has been reached by my brethren in this case.
Our statute (Code,
Being of the opinion that the statute is the grant of a right to invoke equity jurisdiction which may be done under its terms only within a limited time, I think that the new statute requiring the assertion of such jurisdiction within two years is the statute that governs. But supposing that we take the view expressed in the majority opinion to the effect that the exception contained in the repealer provision of the 1931 Code, saves to the plaintiff the right to invoke equity jurisdiction to attack the probate within the period prescribed by the old statute, the question then arises, have they done this, as is required, in strict conformity with the terms of the old statute? The statute requires that their bill be filed within five years from the date of the order of probate. In this case, that was not done. It is true that the suit was brought and process was issued within the five-year period. The statute says that the bill must be filed within that period. The position taken in the majority opinion to the effect that the filing of the bill relates back to the issuance of process, is based upon cases which concern only the general equity jurisdiction of the court. None of the cases cited relates to specially conferred statutory jurisdiction. Such jurisdiction can be invoked only in strict conformity with the terms of the statute which creates it. In the case of McVey v. Butcher,
Of course, if we take the view that the exception in the repealer provision of the Code of 1931 has no application, we reach the same result, in my view of the case.