78 W. Va. 228 | W. Va. | 1916
This is a suit in chancery brought by the four infant children of Marcus Ropar, deceased, to contest and declare void a certain paper purporting to be the will of their father. Plaintiffs are all the children of Marcus Ropar, deceased, and are under the age of twenty-one years, and prosecute this suit by a next friend. This paper purporting to be the last will of said Marcus Ropar, dated February 14, 1913, was admitted to probate by the clerk of the county court of Marshall County on the 3rd day of May, 1913.
The bill alleges that at the time of the execution of said paper the said Marcus Ropar “was wholly insane, non coinpos mentis, and incapable of understanding or transacting any business.” The bill further alleges, “that at the time of his' death and for a long time previous thereto, — for at least a period of seven years — the said Marcus Ropar had deserted his wife and children, and had been living in adultery with the defendant, Mary Papa; and that she had obtained such an influence and such control and ascendency over him, that the will and mind of the said Marcus Ropar was wholly overwhelmed by the influence, will and mind of the said Mary Papa, and he the said Marcus Ropar was wholly unable to do anything of his own initiative; and that while he was under the influence of the said Mary Papa and unduly dominated by her, that she, the said Mary Papa, together with other persons to the plaintiffs unknown, conspired and procured” the paper dated the 14th day of February, 1913, to be made; and alleges that the said paper is not the last will of the said Marcus Ropar.
A copy of the will is exhibited and made part of the bill. The following are the clauses providing for the disposition of the property:
“First I want as soon as convenient after my death all of my just Debts to be paid out of my estate and all outstanding notes bearing'My Signature.
“Second after My Debts are all paid the Residue of My Estate My wife Anna Ropar is to have the one third of the amount Left as her own So Long as she Lives or the interest that Accrues or Rental.
*230 ‘1 Third: and the Residue Left after all debts and Expenses are paid and a Deed of Trust against My Real Estate and note held by Mary Papa for serviced Rendered by her for taking care of Me during my Sickness and for keeping house for me for Several years
“Third: Now my children namely Nicholas Ropar Mary Ropar Katie Ropar and John Ropar the Residue whatever be Left is to be divided Equally between My four children as named in my Last Will and Testament. ’ ’
By the fourth clause he revokes all former wills; and by the last clause appoints Stephen Vidonic his executor. It is alleged in the bill that Marcus Ropar died possessed of real estate worth $3,000.00, and personal estate of about -the same value.
The bill further avers that the note in favor of Mary Papa, referred to in the will, is for $2,000.00, dated the same day the will is dated, and payable one year after the death of the said Marcus Ropar. Plaintiffs deny that said note was executed at all, or if executed, it was done while said Marcus Ropar was under the influence of said Mary Papa, and while he was insane, etc.; and that there was nothing due or owing to the said Mary Papa from said Marcus Ropar, on said 14th day of February, 1913.
The bill further alleges that the said Stephen Vidonic qualified as executor under the alleged will, and that he represented to the mother of the plaintiffs that the claim of Mary Papa would not be paid, and could not be collected, and that he would defeat the claim and care for the interests of the plaintiffs; and that plaintiffs and their mother relied upon these representations, but that said Vidonic instituted a suit in chancery in the circuit court of Marshall County,, alleging that the said Marcus Ropar was largely indebted and had no personal property at the time of his death out of which the debts could be paid, and set up this note of $2,000.00 in favor of Mary Papa as a debt. Such proceedings were had in that suit, that a decree was made for the payment of the same,, the said Vidonic making no defense. The decree of sale has not yet been executed.
The bill prays that an opportunity be given to the plain
The defendant Mary Papa appeared and demurred to the bill, which demurrer was sustained, and the bill dismissed.
Counsel for Mary Papa insists that the circuit court did right in sustaining the demurrer to the bill:
First; Because the bill is multifarious, in that it seeks to impeach the will, and set aside a decree in another suit, and to enjoin the sale of property under a pending suit in the same court. An examination of the bill will show that it is not prop.erly subject to this criticism. The object of the suit is to contest the alleged will. This suit was not instituted for nearly twenty months after the will was admitted to probate. The person named as executor had taken possession of the property, and had instituted a suit to settle the estate, under the alleged will. The will could not be contested in that suit, so that when this suit was instituted to impeach the will, it was proper to provide for the preservation of the property. If the plaintiff shall succeed in this suit, and the paper purporting to be the will shall be declared not to be the will of Marcus Ropar, then it will be necessary to make very material modifications of the suit'brought by the alleged executor to settle the estate. It was entirely proper to stay the proceeding until after ■ this is determined. Therefore the bill is not multifarious.
Second; Counsel for defendant Mary Papa insists that the
" But a.person desiring to have a paper purporting to be a will admitted to record, instead of proceeding ex parte, may, under section 26, chapter 77 of the Code, file his petition there
Rut an ex' parte proceeding before the clerk of the county court, or a proceeding before a county court on a petition as-above stated, or on appeal therefrom to the circuit court, does not take from a person interested, unless he was a party to the proceeding upon such petition before the county court, or on the appeal therefrom to the circuit court, the right to-file a bill.in equity within five years after such order or sentence, to impeach or establish the will, and to require a trial by jury to ascertain whether any, and if so, how much, of what was so offered for probate be the will of the decedent. Sec. 32, ch. 77, Code.
In the ease at bar the proceeding was before the clerk of the county court, and notwithstanding the plaintiff may have been notified, it was ex parte. The notice availed nothing. The plaintiffs had a perfect right to institute and prosecute this suit to impeach the will. See Coffman v. Hedrick, 32 W. Va. 119.
Third; Counsel for Mary Papa insists that the court did right in sustaining the demurrer to the bill for the reason that the plaintiffs show no right to maintain the bill, because-they will take the same or more under the will than they would take under the law as heirs. This would be true were-it not for the fact that the will directs the payment of “a note held by Mary Papa for services by her for taking care of me during my sickness and for keeping house for me for several years. ’ ’ It- is alleged that this note was for two thous- and. dollars. It is alleged that this note was executed, if at all, on the same day the will was executed; that at that time-the decedent was insane; that the note was without consideration ; and that there was nothing due her from the decedent at the time it was executed. These allegations, upon de
The plaintiffs are infants. They need not have brought this suit until after they arrived at the age of twenty-one years. Sec. 33, ch. 77, Code. But this is simply a privilege accorded infants. They need not wait. Under the circumstances of this case, it was proper that the suit should be brought before the assets were all disposed of.
We are of opinion to reverse the decree of the circuit court and remand the cause for further proceedings to be had in the circuit court of Marshall County.
Reversed and remanded.