21 App. D.C. 378 | D.C. Cir. | 1903
delivered the opinion of the Court:
1. A preliminary question arises on the motion of the appellee to dismiss the appeal, on the ground that appellant has appealed alone without summons to the other caveatees •and severance upon their refusal to join in the appeal.
The general rule of practice is well settled, that where there are two or more parties to a judgment who have a joint or dependent interest in the subject-matter thereof, they must join in the writ of error (or appeal under our statute) ; •or else, one who alone would appeal must summon the others and obtain a severance from those who refuse. Godfrey v. Roessle, 5 App. D. C. 299, 300; Slater v. Hamacher, 15 App. D. C. 294, 298.
But we are of the opinion that there are good grounds for excluding from the operation of this general rule an appeal from a judgment denying the probate of a will.
Proceedings for the probate of wills are statutory and are substantially in rem. The proceeding is upon the will itself ■■and to determine its status. Process issues formally to all known to be concerned, and where they cannot be found, or are unknown, notice by publication is effectual, to appear if they see proper and contest the probate. The judgment runs •against no person, but is, simply, that the instrument before the court is, or is not, the wall of the testator. As has been said by the Supreme Court of Vermont: “ The judgment is upon the thing itself; and when the proper steps required by law are taken, the judgment is conclusive, and makes the instrument, as to all the world (at least as to property within this State), just what the judgment declares it to be.
“ This is one instance of a proceeding upon a vratten instrument to determine its state or condition; and that determination, in its consequences, involves and incidentally determines the rights of individuals to property affected by it.” Woodruff v. Taylor, 20 Vt. 65, 73.
The proceeding, from institution to final judgment, is essentially different from the ordinary actions in personam, against two or more defendants, the objects of which are to recover money, or property, or to compel the performance of some act involving a right of property as between the parties-to the suit. The motion is denied.
2. The doctrine of the common law relating to the establishment of an unsigned and unattested paper-writing as a valid will of personal property (now happily denied by the recently adopted code of the District of Columbia, Sec. 1626), was given in charge to the jury in a form acceptable1 to the appellant. She has, however, assigned two errors on exceptions taken to the special instruction given at the request of the caveator, to the effect that, if the jury should believe from the evidence that the paper-writing was written by deceased as a draft of a will from which she intended to have a more formal will prepared and executed, then, unless they should further find that she was prevented from carrying this intention into effect by sudden sickness or death, their verdict must be for the caveator.
There was no error in granting this instruction. It had' direct application to the seventh issue and to the evidence relating thereto.
The paper itself furnishes no intrinsic evidence that it was intended to be the last will of the deceased, and the presumption is strongly against its operation as such. Mason v. Poulson, 43 Md. 161; Public Admr. v. Watts, 1 Paige Ch. 347, 357; Watts v. Public Admr., 4 Wend. 168. In concluding the discussion of the general question, Mr. Jarman saysr “ In all such cases the ecclesiastical courts required very distinct evidence of a testator eventually adhering to and adopting as his deliberate will the preliminary document, in case
The sworn answer of the appellant, it must be remembered, contained the statement that the deceased caused the paper to be preserved with testamentary intent, and directed that her attorney be sent for to prepare the same in proper form so that she might execute it as her will, but her death prevented the formal execution of the said paper, etc. This answer was read to her when she testified, and no explanation was attempted to be offered. Though living with her sister, the testatrix, on terms apparently of affection and confidence, the latter gave her no charge concerning the paper as her will. There was nothing in the evidence tending to show that she was prevented from having the formal will prepared and executed if such had been her intention.
The only evidence in support of the testamentary character of the paper was furnished by the witness Widdicombe, who was directly interested in its establishment as the will of deceased. According to his statement the paper was written November 28, 1900, and for nearly one month thereafter the writer remained physically and mentally capacitated to make a formal disposition of her estate. Had he been uncontradieted in a single particular, by evidence on the part of the caveator, the court would not have been bound to accept his statement as absolutely true, and thereupon to practically withhold the seventh issue from determination by the jury. He was contradicted, however, in several particulars, namely, in respect of the time when the paper had been written, and its contents.
The authorities upon which the appellant relies, and others as well, whilst asserting the doctrine that an incomplete and unsigned will or memorandum may be admitted to probate as the last will of the writer, also maintain that it must have been intended to operate as a will in its then state, or' if a memorandum for the preparation of a formal will, that the testator had been prevented from carrying out this later intention through sickness, death or some other casualty; and further, that there must have been a continuation of this
A special objection has been raised in one of the assigned errors that have been considered together to the use of the adjective “ sudden ” as qualifying the word “ death ” in the special instruction aforesaid. Had this obj ection been made •on the trial the court might well, and probably would, have caused the word to be stricken out; for in indicating to the jury the forms which their findings might take, one was stated thus: “ It was intended as such draft, but her sickness and death prevented the preparation and execution of a more formal will.” As no objection was then made to the qualifying word, the appellant is in no situation now to take advantage of the error, if such it be.
The objection, however, is technical, and appears to us to be wholly immaterial. The jury could not have been misled or confused (especially in view of the form of the answer which they were told they might return if warranted by the evidence) in determining the substantial question whether the testamentary intention, once existing, continued until the death of the writer of the paper.
3. The last assignment of error to be considered is on the exception taken to the refusal of the prayer of the caveatees, on the conclusion of the testimony, for a direction to the jury to return a verdict in their favor on all the issues submitted. The point raised has been practically disposed of by what has been said in the discussion of the preceding assignments, and we deem it unnecessary to add anything thereto.
Nor the reasons given, the judgment will be affirmed, with costs, and it is so ordered. Affirmed.