Opinion
(Spring Riding, 1802.)
1. If a reprobate of a will be moved for and refused by the county court, an appeal will lie from that determination.
2. Where an issue of devisavit vel non had been made up between some of the next of kin and the executor, and the issue found again the will, a devisee who had not been a party was not permitted to come in afterwards and have the issue retried, because our courts of probate are courts of record, and what is done by them is conclusive; otherwise of the ecclesiastical courts of England.
THIS was the case of a will which had been offered to the county court for probate, and was contested there by some of the next of kin; an issue had been made up in the County Court of LENOIR between some of the next of kin, and the executors who offered it, and the issue was found against the will. At the next court a devisee who had not been a party before moved to have a new issue made up, which the county court refused; whereupon the cause removed to this Court. And now it was moved that the cause be dismissed, on the ground that the issue, will or no will, had been once tried, and was not appealed from, as the act of Assembly directs, and, therefore, after the term, could not be overhauled.
Woods, e contra: This case came before the Court several terms ago, and was solemnly argued, and the Court took time to advise, and some of the then judges afterwards made up a solemn opinion which was drawn out at length, taking notice of all the authorities on this head which could be found, and concluding that the issue should be tried again. There is a way in England of bringing on the probate again in more solemn form, as it is called; God., 62; 2 Off. Exrs., 18, 48; Swinb., 448, 449. Moreover, it is against a general principle to bind any one by a trial without being a party and perhaps not knowing anything of it. The devisee now moving for a new issue to be made up was not a party to the former trial, and surely he ought not to be bound by the verdict, which possibly would not have been as it is had he been a party.
This is too clear a case to admit of doubt. Our courts which receive probates of wills are courts of record, and, therefore, what is done by them is conclusive. The ecclesiastical courts which receive probate in England are not of record, and, therefore, what they do may be reconsidered. This person should have appealed from the decision of the county court, as the act of Assembly directs. I will not say but such a case might be relievable in equity, if any fraud were used; but it is not proper for this Court.
Quere de hoc.
NOTE. — The opinion alluded to by Woods was that of HAYWOOD, J., shown to WILLIAMS, J., and approved of by him — and is as follows:
John Ward died, and a paper purporting to be his will is presented to the county court to be proved; and on an issue made up, there was a verdict of the jury against the paper. Afterwards, at another term, one of the devisees named in that paper moved to have leave to present it again for probate, and had that leave given; whereupon (165) the party opposed to the probate appeals to this Court, insisting that the order for granting such leave was illegal, as the verdict on the issue was conclusive to all persons whatsoever, and particularly to Noah Ward, who was a devisee, and therefore a party in the former trial. It does not appear by the record, nor is it admitted by his counsel, that he was in fact a party on that occasion.
This statement is not made wholly out of the record, for that states only an application by Noah to exhibit the paper in July Term, 1796, and a permission by the Court to do so, etc., and an appeal in consequence of that permission. And the question now is whether this appeal is sustainable; and it is objected that it is not — First, because it is an appeal from a final sentence, judgment, or order of the Court, and, second, because the verdict of the jury upon the former trial, and the rejection of the paper thereupon, is conclusive as to this devisee.
With respect to the first objection, the permission to reintroduce the paper for probate is a final adjudication of the Court upon the point submitted to them — whether by law such will could be introduced — and is, therefore, within the meaning of the act, such a sentence as may be appealed from; but if he had waited till after the trial and verdict, and had then appealed, that would have been an appeal from the verdict, not from the sentence for reexamining the will; and there must have been a trial de novo without again arguing the propriety of the Court's judgment; else this inconvenience would result, that there must be a trial in the county court upon an issue made up and tried by examination of witnesses brought to court perhaps at a great expense, and after an attendance of all the witnesses at a very great expense also in the Superior Court, when it was not certain that their attendance would ever be necessary, since the question might be decided by the opinion of the Court on argument merely.
It is more proper and reasonable to decide that question before any issue made up than to go to trial at so much expense, in order to give the party an opportunity to take his exceptions to the opinion of the Court in the court above. I think the appeal proper.
As to the second objection, that the former adjudication is conclusive to Noah Ward, who is a devisee, but was not by his guardian or otherwise a party to the former trial, the case admits of much doubt, and will involve consequences which seem in some measure irreconcilable with natural justice, which way soever it may be determined. If it be decided that such a trial is conclusive to all persons, it infringes the rule that "No person should be condemned unheard, or without having an opportunity to be heard," and by this means many invalid wills be admitted to probate for want of that opposition which parties (166) might effectually make if they were present, or many rejected for want of the evidence which the parties might produce to support them, had they an opportunity to do so.
On the other side, if no person is bound by the admission to probate or rejection, who has an interest and is not a party, property held under wills, and those also who act under them as executors, legatees, or devisees, will never be safe so long as any person having interest, either as next of kin or as legatees under a former will, who has not been summoned, are remaining; for they may all come, one after another at different periods of time, and without limitation, for a new trial; and, indeed, they may choose to come then only when the evidence to support the will, or which caused it to be rejected, is no longer to be had; and what further increases the inconvenience is, that though the heirs, the widow, the next of kin, and the legatees in the contested property may be known, yet the legatees in any former will who are concerned in interest may not be, and frequently are not known so as to be summoned — and, indeed, should they be known, they as well as the heirs or legatees in the contested paper, and the next of kin, may be so far removed from the court of the county where the paper is exhibited that it be impossible to summon them; or they may be removed to places unknown, and for that reason cannot be summoned. Shall the probate be delayed till they can be discovered and summoned, and in the meantime the property be wasted for want of some one to take care of it? Or shall the probate be denied because it is impossible to summon them, and the property inevitably wasted, and creditors defrauded of their debts? Or shall the will be rejected and an administrator appointed to distribute to the next of kin for such reasons, and the legatees defeated of the bounty intended for them by the testator? Or shall the will be proved, notwithstanding, and established beyond any further controversy, though these persons may afterwards appear with proofs sufficient to overturn the probate in one case, or to support it in the other, had they been produced in time? The laws cannot lose sight of the fundamental principle, that "No person is bound by a decision he could not controvert," nor should it abandon that useful rule, "Interest republicae ut sit finis litium." They are both of the last importance in the administration of justice: The one is intended to secure justice to every individual; the other to secure that peace of mind which arises from the consciousness of being secure in the enjoyment of his possessions. Neither of them can be abandoned without injury or violence to the whole system of jurisprudence; and, therefore, the true rule of decision must be in some medium which infringes neither.
Suppose, then, we look for it in a rule like this: that a will proven by witnesses in the presence of the widow, the next of kin, and the heirs, if they can be summoned, and of the legatees of a former will, if known to be summoned, shall be decisive; but if any of them be in a situation which notoriously incapacitates them to assert (167) their rights (which will comprehend the case of minors and persons beyond seas), that they shall have a right still to question the validity of the will if they apply for that purpose in a reasonable time, after which it shall be conclusive to them also as having relinquished their right; and that the probate of a will, or the disallowing the probate, shall be subject to the same rule.
Such a rule seems equally to avoid the imputation of an ex parte decision and of leaving property held under wills so long in jeopardy, and obviates objections that may be raised upon either ground. But the question is, Can we infer any such rule from existing authorities? For if we cannot, and that fairly, too, we cannot make a rule, however convenient and proper it may appear to be now. I think such a rule may be deduced from them. To discover whether it may or not, it will be proper to take a view of the law of probates as it stood before the time of our first passing any acts of Assembly upon the subject, and then to consider what alterations those acts have made in the old law, either with respect to wills of personal or real estates. With respect to wills of personal estate, when they were admitted to probate in the ecclesiastical court, proceeding by the rules of the canon law, the validity of the will being established by the sentence of the proper forum, could not be controverted, contested, or questioned in any other court. 1 L. Ray., 262; Stra., 1; 3 Term, 127; 2 A. B., 421, p. 4; Gil. E. C., 207, 208. But by the common law the probate was liable to be brought into question, and to be repealed if justice required it, either where it was founded on the oath of the executor singly, if application was made within ten years, or where it was proven by witnesses, if all those who were interested in opposing it were not subpoenaed to be present at the examination; and those not summoned, apply within one year afterwards to be heard against it. 2 Off. Exrs., 18. The other old books say, in the presence of all those who are interested, or in their absence if summoned, where it is implied that if some are not summoned, it will not be conclusive as to them. 2 Ba. Ab., 404; 2 Nels. Ab., 130, sec. 1; Cunningham, Verb. Probate; Off. Exrs., 48; God., 62; Swin., 449; Woodson's Lect., 330; 2 Bl. Com., 508. Or if it should afterwards be discovered that the will was obtained by fraudulent means or forged. Str. 481, 703; 3 Term, 125. Or that the probate was founded upon a perjury; or that it was revoked; or there is a latter will. 1 P. W., 287. Which repeal is effected by commission of review or citation (2 Off. Exrs., 48; 3 Term, 125; 1 P. W., 388); or those who are interested to oppose it are beyond seas at the time of the probate, and apply to be heard within six months after their return; or if infants apply for a reexamination within one (168) year after their minority ceases. Thus stood the law with respect to wills of personal estates when our first act upon this subject was passed in 1715, ch. 45, sec. 2; which directs, singly, who shall take probate of wills, not giving any rules to be observed in conducting or receiving proof of wills, and, consequently, must have intended that the courts which were to take probate under the act were to be regulated by the law in use before the act, and to have made the canon law, so far as concerns wills, the standard of decision in all controverted cases. The act of 1777, ch. 62, sec. 2, confines the probate to one only of the courts mentioned in the former act; and 1789 alters the mode of trying a contested will, both of personal and real estates by submitting the dispute to a court and jury upon issue made up by a court, without altering any other part of the common law. The revocability of the probate upon proper ground, and its liability to be questioned within the time limited by the canon law, by those who are interested and not made parties to the former contest, is not altered; and, therefore, in the case of wills of personal estate the probate is still subject to be repealed or reexamined at the instance of the probate, if he applies for a reexamination within a year after it takes place. With respect to wills of real estates, they were not provable in the spiritual court, but are regulated entirely by the common law, and a probate of them in the spiritual court by the rules of the common law is coram non judice, and void. Salk., 552; 6 Rep., 23. The devisee must always be ready, upon every new contest, to substantiate the due execution of the will (1 Burr., 429) by evidence which the common law deems competent, the facts resulting from which are to be collected and found by a jury (2 Ves., 426), or the will must be proven in a court of chancery, where nothing can be done without the heir is a party plaintiff; and where the heir is a party, and will not acknowledge the due execution of the will, and issue is made up, by the direction of the chancellor, of devisavit vel non, and sent into a court of law to be tried and determined according to the rules of the common law, upon return of the whole proceedings in favor of the will the chancellor pronounces it well proven, and orders it to be registered (3 Bl. Com., 450; 1 Vez., 286; 2 Str., 764; 2 Vez., 456, 460; 1 Vez., 274; 1 Wils., 216; 1 Bro. Ch., 99, 330); or when the facts respecting the execution of the will are admitted on both sides and the doubt concerns the law only, it is sent down by the chancellor to the judges of the King's Bench, who certify whether it be well proven or not, and thereupon the chancellor proceeds to establish the will as before mentioned, or rejects the bill. But so strictly do the courts of chancery adhere to the rule of not condemning any one unheard, that if the heir who is deprived of the inheritance by the will is not made a party to the bill for proving the will, although it be stated in the bill that he is not to be found nor anywhere to be heard of, the court of equity will not decree the will to be (169) well proven. 2 Atk., 120. The heir may afterwards appear, and shall not be bound by proofs or by a verdict founded upon proofs he could not controvert.
There is no instance in the case of wills of real estates that ever the maxim was dispensed with. As to any alerations [alterations] made upon this subject by our act, 1784, ch. 15, sec. 6, directs that probate of wills of real estates, taken either before or after that act, shall be received as evidence of the devises; but they are not made conclusive evidence, but only presumptive evidence of the devise, for the act also directs that the original shall be produced when there is any suggestion of fraud committed in drawing or obtaining the will, or any irregularity in the execution or attestation. And for what purpose can this be, but to enable the court and jury to decide whether the county court, though admitted the will to probate, so far as it regarded lands or real estates, had acted properly or not — and if it had not, that they might correct what was done amiss, by a verdict and judgment against the probate? Thus a probate of a will of lands, though allowed of by the acts of 1784, had this effect more than it had in the law as it was before, namely, the registry of the will of lands may now be received as evidence, where the original is lost, which perhaps before it could not be; for in the English law, if a mere will of lands and goods were admitted to probate in the spiritual court, that was no evidence of the devises contained in the will, being coram non judice (Salk., 552), and it might afterwards happen, upon an issue made up in chancery, that the will as to the devises might be disproved and disallowed. 3 P. W., 166; 1 Vez., 278. The act of 1784, combined with that of 1789, may also, perhaps, have this further effect, that as the Court can now make up the same issue of devisavit vel non that the the court of chancery could before, and have it tried by a court of law in the same manner that a verdict in favor of the will upon such an issue made up, the judgment of the Court for admitting to probate thereupon may be equally conclusive with the declaration of the chancellor that the will was well proven before the act, provided the trial be conducted and the issue made up with the same solemnities as in a court of chancery, all parties interested being parties to the issue; and that part of 1784 relating to the introduction of the original upon trial operates only upon the cases it could operate upon immediately after its passage, viz., cases of wills proved in common form, without summoning all parties interested and without the intervention of a jury, which was the usual practice before the act of 1784. However, whether such a construction may or may not fairly be put upon the two acts last mentioned, it is not very material to the present question, for the party now applying for (170) the examination and another trial was not any party to the former issue and trial; and then whether his case is to be regulated by the rules of the court of chancery as heretofore used, or by rules drawn from the spirit of the act of 1784, he cannot be concluded by the trial already had; and, therefore, he is entitled to be heard, for a rejection of a will to the prejudice of a devisee, not a party, is not to be distinguished from the proof of a will against an heir at law not a party, as far as regards the point of being bound or not by the decision and the inviolable maxim of not deciding against a man unheard. I am of opinion that the county court acted properly when they gave leave to Noah Ward to reintroduce for probate, and, consequently, that the will ought now to be remitted to them, to be tried upon an issue to be made up under their direction.
NOTE. — In December Term, 1805, the Court of Conference unanimously decided, In re Stuart's Will, from Pitt, in the suit, Dickinson and Others v. Spier's Executors, that a will proved in the absence of the next of kin shall at their instance be reexamined.
NOTE. — As to the right of appeal in such cases, see Harvey v. Smith, 18 N.C. 186. Upon the main point of the right to a reprobate by one not a party to the former issue, is Redmond v. Collins, 15 N.C. 430, in which the whole subject is elaborately discussed, and it is held that if an issue be formerly made up and tried between the executor and next of kin or one of the next of kin without collusion, the verdict and judgment will be conclusive, and no person claiming personalty under or against the will can have a new issue upon an application for a reprobate. Devisees, however, are not represented by the executor and are not affected by a sentence against a will when propounded by him, unless they are parties to the proceeding. But they cannot repropound it, and demand probate of it as a will of land as well as chattels. Their remedy is by proving it in an ejectment for the devised premises, which may be done when it has been rejected on the allegation of the executor, without notice to them.
Cited: Redmond v. Collins, 15 N.C. 446, 447; Crump v. Morgan, 38 N.C. 99.