4 W. Va. 249 | W. Va. | 1870
Lead Opinion
Joseph M. Ocheltree, Campbell Hiffe, and twelve others, on the first Monday in September, 1859, filed their bill in the circuit court of Greenbrier county, to set aside the probate of the will of Eliza McClintic. The will
The proofs in the case show that Oeheltree and Rifle and two others of the complainants are heirs at law of the said Eliza McClintic, but as to the other complainants, it does not appear that they are her heirs; and as to the said Rifle, it appears that he was born in January, 1834, and that Oeheltree was born in April, 1835. Upon this state of the case, an order was made at the October term of the court, 1860, directing an issue to be made up to try the question, whether the paper writing referred to in the bill and proceedings, as the will of Mrs. McClintic, be her last will and testament or not.
At the April term, 1868, of said court, the issue was tried, and the jury found that the said paper -was not the last will, and testament of Mrs. McClintic, and afterwards, by a decree rendered at the June term, 1869, of the same court, the said order of probate was set aside. There was an appeal from the order made at the October term, 1860, to the
The additional record furnished on the second appeal, together with the record accompanying the first appeal, make a complete record of the ease, and must be looked into in considering the second appeal.
I propose to consider the points made here and arising on the record, not in the order in which they are made, but as may be most convenient.
It is insisted that the court erred on the trial of the issue before the jury, by instructing the jury, “that under a proper construction of the ante-nuptial settlement between Mrs. McClintic and her husband, Thomas McClintic, they must find that the will propounded is not the last will and testament of the said Eliza McClintic, as to the real estate therein described.”
.The only question before the jury was, whether or not a certain paper was the last will and testament of Mrs. Mc-Clintic. Mrs. McClintic was a married woman at the time she executed, or attempted to execute, the paper, and was the owner of the property in the said paper mentioned, under and by virtue of a man’iage settlement, by which marriage settlement she was authorized to dispose of the said property, notwithstanding her coverture, by any writing or writings under her hand and seal, attested by three or more witnesses, or by her last will and testament in writing, to
The case of Jacques vs. Methodist Episcopal Church, 17 Johnson, 548, is relied on by the counsel for the appellants. In this case it was held that a feme covert, with respect to her separate estate, is to be regarded in a court of equity as a feme sole, and may dispose of her property without the consent or concurrence of her trustee, unless she is specially restrained by the instrument under which she acquires her separate estate, and though a particular mode of disposition be specially pointed out in the instrument or deed of settlement, it will not preclude her adopting any other mode of disposition, unless there are negative words restraining her power of disposition, except in the'very mode so pointed out. This case was decided before the case of West vs. West, but is not referred to in that case. The sub
I conclude, therefore, that the instruction given to the jury stated the law in substance correctly. The jury could not have been misled by the instruction, and if they had found any other verdict than they did, it would have been in violation of the law and facts of the case.
It is insisted that the court should have dismissed the bill on final hearing, because nine or ten of the complainants were not shown to be heirs of Eliza McClintic, and because the complainants failed to show that they were protected in their right to sue by the disability of infancy.
There are ten of the complainants, as before stated, who do not appear from the evidence to be the heirs of Mrs. McClintic, and but lour of them who appear to be such heirs. Of the four who appear to be such heirs, two of them, Ocheltree and Riffe, were infants at the time of the probate k>f the will in March, 1840, but both of these had arrived at twenty-one years of age more than three years before the filing of the bill in September, 1859. Under section 18, chapter 104, 1 Revised Code, 1819, page 378, any person interested might, within seven years after a will was admitted to probate, appear, and by bill contest the validity of any such will. The same sections contained a saving also to infants, femes covert, and persons absent from the State, or non compos mentis, the like period after the removal of their respective disabilities.
The provisions of the act of 1838, and of the Code of 1819, materially modified in some respects, are found united in chapter 122 of the Code of 1849, in force when the bill in this case was filed; sections 28, 29, 30, 31, and 32 of said chapter contain the provisions of the act of 1838, as to the proceedings to summon the parties, and other proceedings to the final order as to the probate. Section 33 provides that in such proceeding any sentence or final order shall be a bar to a bill in equity to impeach or establish such will, unless on such a ground as would give to a court of equity jurisdiction over other judgments at law.
The 34th section provides that a court may, however, without summoning any party, proceed to probate and admit the will to record or reject the same.
After a sentence or order made under this section, 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, on which bill a trial by a jury shall be ordered, &c.
The 35th section provides that the next two preceding sections are subject to this proviso: that any person inter
As the law was in the Code of 1819, an infant might file his bill in seven years after disability removed; under the act of 1838, if an infant was proceeded against, and summoned, he might file his bill in one year after disability removed.
Under the Code of 1849, he has but one year after he comes of age, in which to file his bill, no matter what is the preceding to probate the will.
It is claimed here for the appellants, that section 19, of chapter 149, of the Code of 1849, page 594, excepts this case out of the bar of the limitations contained in section 35, of chapter 122, of said Code. The 19th section of chapter 149, only refers to the bars created by the said chapter. As none of the limitations contained in chapter 149 apply to this case, none of the exceptions or savings contained in the 19th section apply to it.
It is clear, therefore, that the complainants, Oeheltree and Rifle, were not at the time the bill was filed, protected in their rights to sue by any disability of infancy. As ten of the complainants do not appear to have ever had any right to sue, and the other four barred in their right to sue at the time the bill was filed, the bill should have been dismissed on final hearing.
This view of the Case renders it unnecescary to consider the question as to the misjoinder of parties.
The first appeal will have to be dismissed, with costs to the appellees.
The final decree or order complained of, will have to be reversed, with costs, and the complainants’ bill dismissed.
Dissenting Opinion
dissentients.
The plaintiffs were, some of them, infants, and under the law as it was before July 1st, 1850, had an accruing right to bring their suit within seven years after attaining their majority. Before the expiration of that time this suit was brought; but after July 1st, 1850, the Code of 1849, which took effect July 1st, 1850, prescribed another rule for the future, but was not intended to operate retrospectively, and therefore, the clause repealing all former laws, code 1860, chapter 216, section 2, expressly saves to parties all rights accrued or accruing, and leaves the same to be determined by the law as it was before the 1st day of July, 1850. This provision, in my opinion, saves to the plaintiffs here their accruing right to sue within the period limited by the law as it was before July 1st, 1850, and as the suit was brought within that time, the plaintiffs’ rights were not barred when suit was brought, and they should have the relief to which they are entitled. I think, therefore, that the decree of the circuit court should be affirmed as to the infant plaintiffs; but as”the court holds other views on this point, I concur' only in the rest of the opinion just delivered, so far as it is not inconsistent with the above views.
Decree reversed.