131 Tenn. 378 | Tenn. | 1914
delivered the opinion of the Court.
The magnitude of the estate involved in this cause, and the importance of the questions made, demand some elaboration in a statement of its facts.
On the same day the petition was filed, and in response thereto, an order was made by the probate judge directing the clerk to issue subpoena and copy .as prayed for in the petition summoning Messrs. Buckingham and Carroll to appear in court at 10 •o’clock a. m., November 1, 1912, and directing them to bring with them the paper averred by the petition to be in their possession, and also directing subpoena to issue to each of the attesting witnesses to appear 'before the court on the day above stated to testify as ■such witnesses concerning the execution of the will. With their petition the petitioners filed a cost bond -with proper surety.
' On November 1, 1912, Miles S. Buckingham, as executor, and in his individual capacity, filed his answer in response to the above subpoena. By this answer it was disclosed to the court that, prior to the ■discovery of the paper propounded for probate by -the petition, it had been reported to the executor that
“ Respondent states that parties interested in the probated will deny the validity of the paper writing of 1900, and say that it is not the last will and testament of Caroline Cloth, deceased, and respondent submits himself to such orders and directions as this honorable court may give and in the premises, and will abide thereby.”
It was also disclosed by the answer of .Mr. Buckingham that the paper writing sought to be propounded
On the same day the answer of Buckingham was filed, the Hon. William H. Carroll filed his answer to the petition, from which it was made to appear to the court that the paper writing sought to be propounded by the petition had been deposited in a safety deposit box in the bank aforesaid. Just when or how the paper sought to be propounded by the petition was finally presented to the probate court does not clearly appear from the transcript, but it does clearly appear that at some stage of this proceeding, and before the final judgment of the probate court was rendered in the matter, the paper writing was produced, and was before the. court when its final judgment was rendered.
On the 8th day of November, 1912, Mrs. Mary Mur-rell filed an. intervening petition in said proceeding-averring the execution by Mrs. Caroline Cloth of the same last will and testament sought to be propounded by the original petition, and that by the twenty-first item of that will a devise was made in favor of Mrs. Mary Murrell of certain real estate located in the city of Memphis, and in the petition described. It was also averred that on or about the 13th day of August
The certificate of the clerk of the probate court of Shelby county, which is attached to the supplemental transcript wherein the foregoing proceedings appear, after certifying the correctness of the copy of the proceedings above referred to, shows the following:
“I further certify that the caveat of Mary Beattie, et al., was filed on November 8, 1912, hut cannot be found in the record, as the same appears of record and now on file in my office.”
The next step in this proceeding in the probate court, as disclosed by the transcript before us, is the judgment of that court. This judgment recites that the cause came on to he heard on the 9th day of November, 1912, and that Mrs. H. Rich caused to he produced in open court the paper writing purporting to he the last will of Caroline Cloth, lately deceased, hearing date the 1st day of August, 1900', having the name of Caroline Cloth signed thereto, and being subscribed by H. J. Lenow, H. A. Hunter, and John Bright as attesting witnesses, asd naming Miles S. •Buckingham as executor, but, as the decree recites,
“And, it appearing to the court from the testimony of H. J. Lenow and H. A. Hunter, two of said subscribing witnesses, that said paper writing was written in the lifetime of the said Caroline Cloth in her own handwriting and signed by her and subscribed in the presence of the said three witnesses, and subscribed by the said three witnesses in the presence of the said Caroline Cloth as attesting witnesses at her request, and that the same was executed on the day it bears date, and that the said Caroline Cloth was at the time of sound mind and disposing memory, and that the said Caroline Cloth lately died at her usual place of residence in the city of Memphis, Shelby county, Tenn.; but it further appears to the court from the testimony of said witnesses, and from an examination of said instrument, that four pages of said will, to wit, pages 5 to 9, inclusive, are missing from said instrument: It is therefore adjudged by the court that said instrument is not the true, whole, and last will and testament of the said Caroline Cloth, deceased. The motion of proponents to probate said instrument as the true, whole, and last will and testament of Caroline Cloth, deceased, is overruled and disallowed. To which ruling of the court proponents*390 excepted, and prayed an appeal to the next term of the circuit court of Shelby county, Tenn., which is granted upon proponents executing a bond with good and sufficient surety in the sum of $500, which has been accordingly done.”
The proponents, Mrs. H. Rich, et al., thereupon executed and filed an appeal bond in the cause in the usual form and in the penalty of $500.
The transcript discloses no other proceedings in the probate court except those referred to above.
On November 20, 1912, Mrs. H. Rich, and those who had joined her in the original petition, filed their declaration in the circuit court of Shelby county, ■which avers:
“Plaintiffs produce in open court a writing purporting to be the last will and testament of Caroline Cloth, deceased, dated August 1, 1900', in which the plaintiffs are named as devisees, and plaintiffs aver that it is the last will and testament of the said Caroline Cloth, deceased, and offer to prove the same in solemn form.”
The declaraton then recites the clause of the will devising certain real estate located in Memphis to the plaintiffs, and the clause thereof appointing Miles S. Buckingham as executor and trustee of the will, and that the will was offered for probate in the probate court, and that there two objections were urged to its probate, to wit:
*391 “The objection and cay eat of Mary Murrell, and the objection and caveat of Mary Beattie, Grace Beat-tie, and Benlah Sevier.”
And the declaration then avers the action taken by the probate conrt as already shown, and the appeal. The declaration then tenders the will as fonnd after death of the testatrix with fonr missing pages for probate, and demands a jnry to try the issnes.
The filing of the above declaration by the original proponents of what is known as the “missing page will” was followed by a fusillade of pleading most unusual in character. In the view which we have taken of the ease, these pleadings need not be referred to in detail. It is proper, however, to note here that the mutilated script which was propounded for probate in the probate court was not certified to the circuit court, nor sent to said court by the probate court as required by section 3905, Shannon Code (section 2173, Code 1857-58), in cases where the validity of any last will and testament is contested. But there is no controversy as to the fact that the mutilated script acted on by the probate court was the same which was propounded by the declaration. - It is also noteworthy that, while the declaration recites the clause of the script appointing Miles S. Buckingham as executor and trustee of the alleged will, it does not make him a defendant, nor pray for process to bring him into court as such, and, while it names certain caveators as having objected to the probate of the script in the probate court, it does not make them
First, Mary L. Shaller. She came into the cause without leave had or asked before the declaration of the church and others was filed, and on November 23, 1912, Mrs. Shaller filed a plea to the declaration which had been filed by the original proponents, Mrs. IT. Rich, et al. But later, on March 13, 1913, Mrs. Shal-ler, by leave of court, withdrew her plea, and demurred to the Rich declaration, but her demurrer was overruled. Her subsequent pleadings were filed after the order of April 22, 1913, and clearly her final plea and answer to the merits were in response to the declaration filed by the church and others.
The only other contestants appearing by name in the proceedings in the circuit court were Jacob Hot-
So, in substance, stood the parties and their pleadings when the ease came on for hearing before his honor Judge Pittman and a jury in the circuit court. Questions were framed under direction of the court,
Upon this verdict the judgment of the circuit court was rendered, and it was that the paper writing propounded, together with the four missing pages thereof, was the true and whole last will and testament of Caroline Cloth, deceased, and that the paper propounded was entitled to and was admitted to probate, etc. Prom this judgment the contestants appealed to the court of civil appeals, where they marshaled a large array of assignments of error against the judgment. Some of these were sustained by the majority opinion of that court, delivered by Mr. Justice Higgins. Mr. Justice Hall dissented. The result was a judgment reversing that of the circuit court, and remanding the cause for a new trial. The cause is before us on three petitions for certiorari, in one of which proponents assign errors complaining of the-reversal, and' in the other two of which Mary L. Shal-ler and Jacob Getto, et al., respectively, complain because certain of their assignments of error were overruled and certain others were not ruled upon by the court of civil appeals. During our last term at Jack
Passing now to a consideration of the assignments of error, we observe at the threshold that they raise the question that the circuit court had no jurisdiction to try and determine the cause-. This question, as already indicated, is made by those parties to the record who came into the cause voluntarily during the proceedings in the circuit court, under pleadings averring their interest in the estate in the event of intestacy.
£ ‘ Jurisdiction has been well defined to be a power constitutionally conferred upon a judge or magistrate to take cognizance of and determine causes according to law and to carry his sentence into execution. ’ ’ Swift & Co. v. Warehouse Co., 128 Tenn. (1 Thomp.), 100, 158 S. W., 485.
Beyond doubt, of course, under our statute, the circuit court, and that court alone, is invested with jurisdiction to try and determine an issue devisavit vel non. See section 2173, Code of 1857-58; section 3905, Shannon’s Code. But the contestants say that this is not such an issue. To this insistence we cannot agree. It is clearly such an issue. They say it is not such an issue because the paper offered for probate in the probate court was not by that court certified and sent up to the circuit court as required by the statute (3905, Shannon’s Code), where the validity of a will is contested, and because no contestant appeared in the probate court and there set on foot formal proceedings
None of the matters above insisted on by contestants can be held to have defeated the jurisdiction of the circuit court. Prior to the enactment of the statutes codified in section 3905 of Shannon’s Code, the county court in this State was vested with jurisdiction to admit to probate uncontested and contested wills alike, but the legislation embodied in section 3905, Shannon’s Code, deprived the county court of jurisdiction to probate contested wills, leaving, however, in the county court, its former jurisdiction to probate uncontested wills. But all wills, whether contested or uncontested, must be presented for probate in the first instance in the county court, except in the county of Shelby, where the jurisdiction formerly belonging to the county court on the subject of the probate of wills was vested in the probate court of that county when it was created. When, therefore, a will is presented or propounded for probate under our system, that step must take place in the court of first instance, and the status of the will at the time it is presented and while there awaiting judgment determines the jurisdiction of the court of first instance, and limits its powers in respect of it. If it is an uncontested will, the court of
If a will is contested when presented to the probate court, or if a contest arises after presentation and before judgment, the jurisdiction of the circuit court ip so facto attaches over the subject-matter of the contest.
• The view of our legislation above expressed has been too long settled to admit of serious controversy at this day. Patton v. Allison, 26 Tenn. (7 Humph.), 320; Wisener & Brown v. Maupin, 61 Tenn. (2 Bax.), 352; Ford v. Ford, 26 Tenn. (7 Humph.), 95; Cornwell v. Cornwell, 30 Tenn. (11 Humph.), 485; Linch v. Linch, 69 Tenn. (1 Lea), 527. In one of the cases above cited the court, after quoting section 2137, Code 1857-58, carried now as section 3905, Shannon’s Code, said:
“It is obvious this section contains only directions to the county court, which the county court is bound to obey, and which, if neglected or refused by them, might be enforced by the circuit court by virtue of its supervisory power over inferior tibunals, either by cer-tiorari for a complete record, or in a proper case by*399 mandamus; but how such -failure on the part of the county court or its clerk could be a matter affecting and defeating the jurisdiction of the circuit court to make up and try an issue of devisavit vel non we are not able to see.” Wisener & Brown v. Maupin, 61 Tenn. (2 Bax.), 347.
The statute (section 3905, Shannon’s Code) does not prescribe the manner in which it shall be made to appear to the county court or probate court that the validity of a will is contested, but it is clear that the existence of that condition or state of facts in respect of a will offered for probate at the time offered, or thereafter and before judgment in such court on the matter, is that which fixes the status of the will.
It is manifest from what we have recited, taken from the transcript of this cause in the probate court, that the paper here involved was a contested will within the meaning of the statute. A will prior to it in date of execution made by the same testatrix had been admitted to probate in the probate court of Shelby county before the paper here involved was offered for probate in that court. The first paragraph of the paper here involved contained a revocatory clause of any and all other wills therefore made. Moreover, the two wills were inconsistent in terms; both could not stand. The attention of the court was expressly called to the probate of the former will by Mr. Buckingham, who was the executor named in each of these testamentary papers. In his answer to the citation when that one here involved was offered for probate,
Another matter has been pressed upon us as affecting the jurisdiction of the circuit court in this cause. It is insisted for contestants that the propounding for probate, of the will here involved in the probate court of Shelby county prior to any proceeding or order in that court in the matter of the Clarendon will, looking
We do not think these cases sustain the insistence for which they are cited. Substantially the same insistence above made was considered by the supreme court of the United States in Gaines v. Hennen, 65 U. S. (24 How.), 553, 16 L. Ed., 770, but that court held against the insistence. The same question was again before the same court in Gaines v. City of New Orleans, 73 U. S. (6 Wall.), 704, 18 L. Ed., 960, where that court said:
“But it is said the probate of the will in dispute cannot stand, because there was no direct action by the Louisiana court annulling the probate of the will of 1811. This was not necessary. The probate of the will of 1813, by the mere fact of its probate, necessarily annulled the will of 1811, so far as its provisions were inconsistent, and so far as the estate was not legally administered under it, and this precise point was decided in the Hennen Case.”
The same view of the question was taken by the supreme court of Rhode Island in the case of Bowen v. Johnson, 5 R. I., 112, 73 Am. Dec., 49. Speaking of
“Tbe prayer of sncb a petition incidentally involves tbe revocation of tbe probate of tbe will of prior date, .so far as such will conflicts with tbe provisions of tbe will of later date. We can perceive no danger of confusion or injustice in allowing this double, but dependent, duty to be performed by tbe court upon a mere petition for tbe probate of tbe later will; and its simplicity and directness commend it, as a matter of practice, in other respects, to our favor. ’ ’
Upon the same subject, in Waters v. Stickney, 12 Allen (Mass.), 1, 90 Am. Dec., 122, it was said:
“A court of probate has no more power by a decree establishing one testamentary instrument to preclude tbe subsequent probate of a. later one never before brought to its notice than by a decree approving one .account to discharge an administrator from responsibility for assets not actually accounted for.”
Speaking to tbe same subject, in Schultz v. Schultz, 10 Grat. (Va.), 358, 60 Am. Dec., 335, the court said:
“And so, as it appears to me, if tbe later will contains •an express clause of revocation of former wills, or -contains a disposition of tbe estate incompatible with the provisions of tbe former, or from its general character may be inferred to be an entire new instrument .intended to supersede tbe former, tbe court of probate should receive it and admit it to probate, leaving it to have such effect as tbe law would necessarily attach lo it.”
“But the probate of a will is practically a direct proceeding looking to placing a testator’s property in the hands of his executors, and adjudging that all others, including administrators having it in possession, should surrender it to the executors for administration. Indeed, it is the proceeding laid down in the statute to the exclusion of all others. If the view should be adopted that a will could not be probated until a decree had been obtained in an independent proceeding annulling a previous grant of letters of administration, the whole question of will or no will would necessarily be tried in such independent proceedings, whereas the statute provides it must be tried only in proceedings instituted to have the will admitted to probate.” ' ' .
It is, of course, true as insisted by contestants, that the cases on which they rely establish the rule in this State to be that a judgment of the county court admitting a will to probate in common form cannot be collaterally attacked. But those cases do not sustain the insistence made by contestants, unless we should hold that the proceedings to probate the will involved in this cause was a collateral attack upon the judgment admitting the Clarendon will to probate. But we do not so hold. The proceeding to establish the will involved here was a direct proceeding looking to the making up of an issue devisavit vel non to be tried and determined in the circuit court, to the end that it
It results from what has been said that, in our opinion, the rule best sustained by reason and authority is that the proceeding to probate the missing page will was not a collateral attack upon the judgment probating the Clarendon will nor upon any of the proceedings leading up to that judgment.
Another question made by contestants upon the jurisdiction of the circuit court is, as they say, that the
We now pass to a consideration of the assignments of error made by proponents upon the judgment of the court of civil appeals.
The first of these is that the court of civil appeals erred in sustaining the twentieth assignment of error made by contestants. The substance of the matter is that, during the trial, and while Mr. Buckingham was being examined as a witness, the missing page will was handed him, and he was asked what paper it was. His answer was that it was the last will and testament of Mrs. Caroline Cloth. This statement of the witness was objected to by contestants, and their objection was overruled, but later, in the progress of taking evidence, on motion of contestants the court excluded said statement on the ground that it was only the opinion of the witness Buckingham, and should not have been admitted in evidence. But, after all the evidence had been introduced and three arguments had been made to the jury, and six arguments remained
“Yes; she made that will, but after she went to G-ermany she got out with some of the heirs of Herman Cloth and destroyed it or made away with it on her return, and that she died without a will.”
The further prayer of the motion was that, if Mr. Buckingham denied making this statement to Lenow, then contestants be allowed to introduce Lenow tO' contradict Buckingham. The court overruled the motion on the ground that, under all the evidence in the cause, such a statement, if made by Buckingham, would have been but the expression of an opinion and, as-such, not competent. We think the action of the circuit judge was correct, and that the court of civil appeals was in error in holding to the contrary. The-cause had passed the stage where contestants were-entitled to introduce evidence, but by leave of court, in the exercise of a sound judicial discretion, and nothing short of an abuse of such- discretion would, justify us in holding the trial judge to he in error. There was no abuse here: (1) Because the statement of Buckingham, if made to Lenow, considered in. the light of the undisputed evidence in the cause, was but an opinion, though in form stated as a fact; and
The second assignment of error relied on by proponents is that the court of civil appeals erred in sustaining the twenty-second assignment of error made-in that court by the contestants. The matter in question is the action of the circuit judge in excluding,, when offered in evidence during the trial of the cause,, the following document:
“Agreement. State of Tennessee, County of Shelby: In re Caroline Cloth’s Estate. We agree that the will of 1898 of Mrs. Caroliné Cloth, probated in Shelby county, Tennessee, is the last and valid will and. testament of the said Mrs. Caroline Cloth, and we will hereafter stand by this agreement.”
The agreement was signed: F. Bruce Garrett, by Bell, Terry & Bell, A. Geo. F. Chapline, Attorneys. It was also signed by John M. Shaller and Mrs. Mary L. Shaller, by Paid W. Evans, and by Jacob Getto, et al. (the names of his codefendants being set out), by Frank Zimmerman, Attorney. It was also signed by Miles S. Buckingham, by Caruthers Ewing.
The transcript discloses an objection made to the competency of the foregoing document as evidence by the proponents. It was insisted by the proponents that the document was not signed by Mr. Buckingham, but that it was an agreement made by his attorney, Mr. Caruthers Ewing, in the absence of Mr. Bucking' ham; but the court, on the ground that Mr. Buckingham, after he learned of the execution of this agree
The third assignment of error made by proponents is that, the court of civil appeals erred in sustaining the fifteenth assignment of error made in that court by contestants. That assignment was that the trial court erred in charging the jury as follows:
“So the la~w presumes that, if the will is in the possession and custody of its maker, and at the time of her death it is found that the.will is mutilated, in the absence of any explanation of that, the law presumes that she intended thereby to revoke the will. . . . A presumption is an inference that the law draws from certain proven facts, so that, if you prove the will was in the custody of Mrs. Cloth and in her possession, and immediately after her death it was found in a mutilated condition, unexplained, the law presumes that she revoked it.”
The two excerpts above set out oppear in the charge of the court. Immediately following the first excerpt, and immediately preceding the second, the court charged the jury as follows:
“So, in this case, the contestants claim that, inasmuch as there are missing four pages, that constitutes a mutilation, and that is a mutilation in law, and, it constituting a mutilation, the presumption arises that Mrs. Cloth revoked the will. That presumption ob*410 tains, and can obtain, only in the event the jury find that this paper, or will, was in the possession of-Mrs. Cloth, and that it was found after her death among her papers or repositories.”
Immediately following the second excerpt, the court charged the jury as follows:
“On the other hand, the proponents claim that before that inference or presumption is well founded there must be evidence of facts sufficient to found it. upon. There must be evidence that this will was in her possession and custody; and their theory of the question is that, prior to Mrs. Cloth’s death, or at about the time of her death — just before .or just after-wards — that her house and papers were ransacked, and that this missing part was either purposely, or carelessly, or accidently lost or removed from the will. This legal presumption to which I refer is what we call in law a rebuttable presumption. That means that evidence may overturn the presumption, if the facts and circumstances before the jury in evidence are such as to warrant the jury in the belief that Mrs. Cloth did not remove the missing part, or authorize its removal, but that some other person did it; then that overturns that presumption — the presumption that she did do it.”
Further on the court charged the jury among other things, as follows:
“If the proponents should merely show that somebody bad opportunity to get the will, had access to it, that would not overthrow the presumption, but before*411 the presumption is overthrow, they must go.further and prove such facts as would reasonably justify the jury in finding that some other person did, either purposely or intentionally, remove the paper.”
In the light of the whole charge, and especially of those portions of it which we have above set out, in addition to those on which the contestants’ fifteenth assignment of error was based, we are unable to see that reversible error was committed by the court in the excerpts complained of. We do not understand, as was insisted by contestants, that by the excerpts complained of the court told the jury that a presumption of revocation would only arise when unexplained upon finding a mutilated will in the possession of the testatrix, nor do we think the word “immediately,” as used in the excerpt from the charge complained of, can fairly be said, considering the entire charge, to have the m'eaning attributed to it by contestants. Considering the entire charge in connection with the two excerpts, we conclude that the court of civil appeals was in error in sustaining the fifteenth assignment of error made by the contestants.
Proponents made' a fourth assignment of error which, we need not discuss.
Passing now to the assignments of error made by contestants, we take up first the single assignment made by Mrs.' Mary L. Shaller, which raises the question that the court of civil appeals should have dismissed this suit. We think not, and therefore overrule this assignment.
“The learned court of civil appeals committed most prejudicial error against cross-petitioners in preter-mitting numerous assignments of error and not determining same at all. These assignments of error are Nos. 4 to 11, inclusive, 13 to 14, 17 to 19, inclusive, and 21. ”
This fifth assignment of error does not comply with the twelfth.rule of this court. 126 Tenn. (18 Cates), 720, 160 S. W., viii; Acts 1907, ch. 82; Mayor and Aldermen of Nashville v. Patton, 125 Tenn., 361, 143 S. W., 1131. The rule specifies by reference to rules 14 and 15 (126 Tenn. [18 Cates], 721, 724, 160 S. W., ix, x) the form in which assignments of error shall be made, and expressly states (126 Tenn. [18 Cates], 720, 160 S. W., viii), that:
*413 “The assignments of error, briefs, and arguments filed in the court of civil appeals cannot be refiled here in compliance 'with this rule, as the case is brought before this ourt for error in the action of the court of civil appeals, and not of the trial court.”
For the reason indicated, we overrule the fifth assignment of error.
We find, beginning at page 106 of the brief for contestants filed in support of the fifth assignment of error to which we have referred, a discussion under the head “Pretermitted Assignments of Error should have been Sustained by the Court of Civil Appeals.” Following this are set out seven special requests made by the contestants on the trial of the cause as to which they complain because the circuit judge did not embody them in his charge to the jury, and as to which they say the court of civil appeals was in error because it pretermitted the assignments of error filed in that court covering each of these matters. This method of setting out the assignments of error for the purpose of discussing them in the brief does not cure the defect we pointed out in the fifth assignment of error. The rule of the court above referred to must be observed not only by counsel assigning errors, but by this court, because the particular rule involved is, in substance, a requirement of the statute creating the court of civil appeals and regulating the method of securing in this court a review of a judgment or decree of the court of civil appeals.
It results from what has been said that the judg ment of the court of-civil appeals will be reversed, and that of tbe circuit court affirmed.
