40 Ky. 390 | Ky. Ct. App. | 1841
delivered the Opinion of the Court.
After probate, in the County Court of Fayette, of a paper purporting to be the last will of Joseph Rogers, deceased, some of his heirs filed a bill in Chancery, in the Circuit Court of that county, for contesting the testamentary validity of the document thus admitted to record in the County Court.
The Circuit Court of Fayette ordered an issue, devisavit vel non, and afterwards, on a change of venue to Woodford, the judge of that Circuit, upon the filing of an amended bill admitting the formal publication but all eg
The defendants, (now appellants,) having excepted to that order and having offered an additional issue, whether the paper loas the last will of Joseph Rogers, deceased, which was rejected, filed a plea, averring that it was his true last will, to which the other party replied that, though it was formally published as such, the said Rogers, at the time of publication, was of unsound mind, and that the publication was fraudulently procured, and concluded to the counti'y.
Upon that issue, a jury found that the paper was not the last will of Joseph Rogers, deceased; and the Court having refused a new trial, rendered a decree declaring that it was not his will. But there is no formal bill of exceptions certifying what the evidence was upon the trial of the issue.
In the revision of that decree, now sought to be reversed, we shall consider two preliminary questions only, that is: 1st. Whether the Circuit Judge of Woodford, erred in making up the issue: and 2ndly. Whether there was available error in trying that issue when all necessary parties were not before the Court.
I. The 11th Sec. of the act of 1797, (Statute Laws, 1643,) which regulates this proceeding, provides that, “When any will shall be exhibited to be proved, the “Court, having jurisdiction as aforesaid, (that is, a “County Court,) may proceed immediately to receive ‘1 the proof thereof, and grant a certificate of such pro- “ bate: if, however, any person interested shall, within “seven years afterwards, appear, and by his bill in “ Chancery, contest the validity of the will, an issue shall “be made up, whether the writing produced, be the last “ loill of the testator or not, which shall be tried by a ju- ‘ ‘ ry, whose verdict shall be final between the parties — sa“ving to the Court a power of granting a new trial for
The tenor of this enactment seems to authorize the inference, that the Legislature intended to provide against the ordinary probates, altogether or partially ex parte, by-allowing seven years to any person or persons interested, to appear and contest, as he or they might in the first instance have appeared and contested the validity of the document as a will, and not to revise the correctness of the probate thereof in the County Court, by a bill in Chancery, and the trial by jury of such an issue as necessarily involves the comprehensive question, whether it be the last will or not.
In England there were two modes of proving a testament of personalty in the proper Court of probate: 1st. “in the common form,” 2nd. “in the form of law,” sometimes called “solemn form” or “per testes.” The first, like the ordinary mode of probate in our County Courts, was ex parte, the last was inter partes, upon chation of all persons interested, and upon full proof by witnesses, for and against the will. Probate in the first mode, though an anomaly in jurisprudence, was, nevertheless, authorized by the frequent necessity of such a summary procedure for preventing the embarrassing and •even injurious consequences to creditors and others, which ■might often result from unavoidable delays, incident to •regular citations for contesting, in the more “solemn form,” and establishing wills finally and conclusively; and therefore, this ordinary probate, ex parte, was good ¿until the recorded document had been contested and rejected, upon a trial in the more effectual mode, which might have been done anciently at any'time within thirty years, which were allowed to any person interested, to ■■appear and require the executor to prove the will in the solemn and conclusive form, upon citations to all concern-id. And upon such requisition, the former probate, without contest or citation, was waived, and it was the •executors duty to prove the will as if it had never been recorded: Godolph. pt. 1, c. 20, s. 4; Swinb. pt. 6, s. 14, pt. 3. Swinburne considered ten years as the more mod
■ In Kentucky, the accustomed and almost universal mode of probate in the County Courts is, “in the common form,” by proof of the subscribing witnesses immediately on the voluntary presentation of the will by the executor. To consider such hasty and ex parte probates final and conclusive at once, would have been unreasonable. It must have been felt to be equally unreasonable to allow as long a time as thirty years, for contesting the will and requiring probate in the more satisfactory and effectual mode; and it seems that our Legislature deemed a jury, under the supervision and control of a Chancellor, a more eligible tribunal than a County Court, for the ultimate contest and conclusive probation.
Thus we have a plain clue to the true object and construction of the 11th section of the statute already quoted.
In declaring that the proper County Court “may proceed immediately to receive the proof” of a will, the Legislature evidently contemplated probates ‘ ‘ in the common form;” and this is fortified by the provision that “if, however, (or nevertheless) any person interested shall, within seven years afterwards, appear, and by his bill in Chancery, contest,” &e. that is, a person who had not before appeared and contested the will. It, therefore, seems to us that the provisions of this 11th section were intended as an improved substitute for the citation and “solemn form” of probate in England; requiring, as in England, a full and original probate, to operate finally as to attpersons concerned. And, to guard against the accidents of a lapse of seven years, the 15th section of the same statute provides that, “in all such trials by jury, the ' ‘ certificate of the oaths of the witnesses, at tfoe time of “ the first probate, 'shall be admitted as evidence,, to have “such weight as the jury shall think it deserves,” which also implies, 1st, by “the first probate,” that'the bill in Chancery was intended as the citation and “solemn form” in England, to require a second probate; and 2dly, by admitting as evidence on the trial, “the certificate of the
Such a bill, whatever may be its allegations or its form, brings up the contested paper for final probate or rejection; and the jurisdiction of the Chancellor and jury, in every such case, is virtually that of a Court of probate.
The case is not tried on the record of the County Court, but is to be heard and decided as if there had been no probate, and should be influenced no more by the probate in the County Court than a similar case should be in this Court, when brought up from a County Court, except so far as the certificate of the oaths on the first probate, when read, may be entitled to some effect in the opinion of the jury: See Higdon’s heirs vs Higdons devisees, 6 J. J. Marsh. 52.
Then, in every such proceeding by bill, the party defendant must prove, (except so far as proof maybe waived by the pleadings,) every fact which the law requires to be proved on a question of probate in the ordinary Court: and consequently, as to every fact necessary to authorize the probate of a will in a County Court, and not admitted by the pleadings, the onus probandi devolves on the party claiming the recorded paper to be the testator’s last will. Whatever may be the form of the issue, he, as to every such controverted and essential fact, holds the affirmative on the trial before the jury; because he must, in the first instance, prove such of them as are not admitted. A negation of any or of all of these facts by the complainant, in an affirmative form, cannot change the legal attitude of the parties on the trial; for, in whatever form he may dispute a fact in dispensable to probate, he thereby denies or fails to admit it, and of course, it must be proved by the other party. Thus, if the complainant allege that the paper was not legally published as a will, he would not thereby assume on himself the burthen of proving that negative affirmation in the first instance. The effect of such an allegation would only be a denial of publication, and a requisition of sufficient proof of it. So, if he allege that the testator had not a disposing mind, or that he was of unsound mind, the
It must be evident that if it be the duty of a party to prove a will, he must prove that the testator had a disposing mind, if that fact he not admitted: such proof is expressly required by the statute, and we are satisfied that, in this case, the probate in the County Court was not sufficient prima facie evidence to throw the onus on the party filing the bill. If it be such evidence and entitled to such effect, then the party filing the bill, would, in every case of controversy, have to commence the proof on the trial and would, therefore, be entitled to the closing argument to the jury, upon an issue in any form, as to a fact necessary to the probate or rejection of the paper which had been recorded as a will; and if the probate in the County Court be not, prima facie, sufficient evidence of the validity of the will, then, as to every fact necessary for the probate of it in the first instance, the burthen of proof, except so far as proof be waived by the pleadings, would devolve on the party asserting it to be the will, on the trial of an issue involving such fact or facts, in any form. But, as already suggested, not only has this Court decided that, in such a case as this; the probate in the County Court is not alone sufficient evidence, but the statute itself, when its tenor and objects are considered, leads, as we think, to the same conclusion, by showing that the bill is to be filed, not to impeach the probate, but to “contest” the validity of the will as it might have been contested in the first instance, in the County Court, or on a writ of error to this Court, on a full trial, (but by a jury,) upon such proof and in such order as would have been proper, had the same party elected to appear in the County Court or in this Court, and by contesting the will, throw on the party asserting
Such a special issue, therefore, should not be deemed either immaterial or illegal. Nor could it, by any form of words, change the attitude of the parties as to the bur-then of proof or the closing argument to the jury; for whatever might be the form of the issue, the party claiming the contested paper to be the will, -would hold the affirmative and should be required first to offer proof, as to every controverted fact necessary to the probate of it. Thus, in Massachusetts, on an appeal from a Probate Court, an issue having been directed to try the soundness of the testator’s mind, the party contesting the will pleaded that he was of unsound mind, and the other party replied that he was of sound mind, and yet the Supreme Court properly and unanimously decided that the party asserting the will and alleging testamentary capacity, held the affirmative of the issue: Blaney vs Sergent, 1 Mass. Rep. 335.
In such a case as this, therefore, the form of an issue, necessarily involving a testamentary question only, cannot be so material to either of the parties as to justify a
In this case the form, as well as the legal effect of the issue as tried, imposed on the appellant the burthen of proof, and therefore entitled his counsel to the opening and closing speech before the jury — for he pleaded affirmatively and generally, that ihe contested paper was the last will of Joseph Rogers, deceased, and the appellees specially traversed that general averment, concluding to the country — whereby the affirmative of the matters in issue was indisputably assumed by the appellant: 1 Chitiy on Pleading.
We are unable to perceive why the Circuit Judge directed a restricted issue, and refused to permit one more comprehensive, But still, as he did not thereby essentially change the attitude or rights of the parties, we cannot reverse his decree on that ground alone.
The struggle in the Court below, about the form of the issue, may indicate a belief, by the Court and the Couu
We should hesitate, therefore, to reverse on the first point alone.
II. Two slaves, emancipated by the contested document, were not made parties. They were necessary parties, whose rights cannot be concluded by the verdict and decree between other parlies. One of the chief objects of such a procedure by bill, was to settle finally and conclusively, all litigation as to a contested will; and it is the Chancellor’s duty in such a case to require all persons interested as heirs or devisees to be made parties before he permits a final trial or renders a final decree. Endless litigation and confusion might result from permitting a decree to stand, which cannot conclude all persons directly interested in establishing or invalidating the will. This is not always a matter of compromise between such persons as shall happen to become parties. It is a matter of public policy, essentially affecting the end of litigation in Chancery, especially in such a class of cases as this, in which it is necessary for effectuating the end of the 11th. Sec. of the Statute.
An ambiguous agreement on the record cannot be understood as certainly importing even that the appellant, who was a defendant below, consented to waive objection to parties. The entry purports that the complainants only waived all benefit of question or time as to parties.
This does not necessarily imply that the defendants agreed to waive, on the final trial, ail objection for want of necessary parties. But if it did, the radical error in trying the case and rendering a final decree when all essential parties were not before the Court, was not thereby cured.
It does not appear that the infant heirs of Richard Rogers, deceased, were regularly before the Court, by a
But the interest of the pretermitted persons of color is against the decree and may be, to them, very important.
And therefore, it is our opinion that the decree should be reversed for want of parties, and especially as it may be probable that the appellant’s counsel were improperly deprived of their right to conclude the argument before the jury, and, as also (if the record before us contains all the evidence) there may be reason to doubt whether the Circuit Judge did not err in overruling the motion for anew trial.
It is, therefore, the opinion of this Court that the decree of the Circuit Court be reversed, the verdict set aside, and the cause remanded for further proceedings and trial.