50 Ky. 17 | Ky. Ct. App. | 1850
delivered the opinion of the Court.
The plaintiffs in error exhibited a bill in chancery in the Madison Circuit Court, asserting title as the heirs at law of Rachael Shackelford, deceased, to a tract of land in Madison county. In their hill they alledged that William Masterson had fabricated, and set up, and caused to be entered of probate in the Lincoln County Court, a writing purporting to be the last will and testament of Rachel Shackelford, in which he was appointed executor, and was made devisee of part of her estate. They also alledged that the instrument of writing thus recorded in the Lincoln County Court was not the last will and testament of Rachael Shackelford : but nevertheless, Masterson, acting as her executor under the pretended will, had taken possession of the land in Madison county, and had rented it out and received the rents. It was further alledged that
By consent of the parties, the suit was taken to the Garrard Circuit Court, and after a day had been appointed for a trial by a jury, to determine the question in relation to the validity of the will, and several continuances had been procured, the Court took up the case upon the plea to the jurisdiction, and rendered a decree dismissing so much of the complainant’s - bill, with costs, as attempted to impeach the validity of the will. The propriety of that decree, is now questioned by the complainant’s on several grounds.
It is admitted that the jurisdiction belonged to the Lincoln, and not to the Madison Circuit Court, according to the decision in the case of McCall and wife, against Yallandingham, &c., (9. B. Monroe, 449,) but it is insisted that the objection to the jurisdiction was waived, by answering to the merits, and by subsequently consenting to a change of venue, and permitting the cause to progress from one stage to another, without pressing for an adjudication of the question of jurisdiction.
If the court in which the suit was originally instituted, had jurisdiction, it must have been acquired by the consent of the parties. There are cases, where a Court of chancery having jurisdiction over the subject matter, but not having a right to exercise it, in a particular case, because the defendants are not found, and served with process within the limits of its jurisdiction — may
And having placed his objections to the jurisdiction of the Court upon the record, whereby the complainants were notified that he relied upon that ground of defense, no inference of assent to the jurisdiction of the Court in opposition to his explicit protest against it, can be deduced from his subsequent acts, in consenting to a change of venue, and permitting days to be fixed by the Court for the trial of the issue by a jury.
When the complainant’s bill, as in this case, shows that the Court has no jurisdiction, no plea to the jurisdiction is necessary. If the defendant does no act, from which his assent to the jurisdiction of the Court can be implied, he may avail himself of the objection, at any stage of the proceedings; and if an answer to the merits, without any objection to the jurisdiction of the Court, would be considered as a waiver of the objection, such an inference cannot arise when the answer alledges the want of jurisdiction, and sets it up, and relies upon it as matter of defense.
We would not, however, be understood as admitting that the Madison Circuit Court could have acquired jurisdiction to inquire into, and determine the validity of the will, probate of which had been made in the Lincoln County Court, even by the express assent of. the parties. The probate of a will, is a proceeding in rem, affecting not only the parties before the court, but other persons. It is evidence, not merely against parties and ' privies, but also against strangers. If probate be granted by the County Court, any person interested, if he appear within a certain period, may exhibit his'bill, and by contesting the validity of the will, virtually impeach
The real question presented by the complainant’s bill, is- in relation to the validity of the will. All the other questions are subordinate to that one, and to a great degree dependent upon it. That question should have been tried and determined in the proper Court, and when that had been done, a suit for partition in the county where the land is situated might have been brought there, if the result of the contest about the will rendered it necessary.
An objection is also made to the decree, because it <iirecte(i the complainants to pay the costs that had accrLiec^ uPon that branch of the controversy, that was dismissed out of Court for the want of jurisdiction. Ar
Wherefore the decree is affirmed.