Gustavus Leach v. Charles Burr

• Decision Date: 27 January 1903
• Docket Number: No. 145,145
• Citation: 188 U.S. 510,47 L.Ed. 567,23 S.Ct. 393
• Parties: GUSTAVUS LEACH, William F. Leach, Chester H. Shaw, et al., Plffs. in Err. , v. CHARLES R. BURR, Executor, and Samuel H. Lucas
• Court: U.S. Supreme Court

188 U.S. 510

23 S.Ct. 393

47 L.Ed. 567

GUSTAVUS LEACH, William F. Leach, Chester H. Shaw, et al., Plffs. in Err.,

v CHARLES R. BURR, Executor, and Samuel H. Lucas.

No. 145.

Argued January 27, 1903.

Decied February 23, 1903.

Messrs.William A. Meloy and George F. Hoar for plaintiffs in error.

Messrs. J. J. Darlington and R. B. Behrend for defendants in error.

Mr. Justice Brewer delivered the opinion of the court:

Plaintiffs in error, caveators in the trial court, seek a review of the order of the supreme court of the District, holding a special term for orphans' court business, admitting to probate the will of Ezra W. Leach. The order was entered March 17, 1900, and on appeal was sustained by the court of appeals of the District, November 6, 1900. 17 App. D. C. 128. Thereupon this writ of error was sued out.

Whatever may have been the fact theretofore, it is not seriously questioned that by the act of June 8, 1898 (30 Stat. at L. 434, chap. 394), the trial court had jurisdiction to entertain the application for probate, for by § 2 of that act it is provided that 'plenary jurisdiction is hereby given to the said court holding the said special term to hear and determine all questions relating to the execution and to the validity of any and all wills devising any real estate within the District of Columbia, and of any and all wills and testaments properly presented for probate therein, and to admit the same to probate and record in said special term.' The specific objection to its action is an alleged defect in the publication required in case any party in interest is not found; the statute (§ 6) providing that the court 'shall order publication at least twice a week for a period of not less than four weeks of a copy of the issues and notification of trial in some newspaper of general circulation in the District of Columbia, and may order such other publication as the case may require.' The order was made on January 26, 1900, setting the hearing for February 26, 1900, and was 'that this order and a copy of said issues heretofore framed shall be published twice a week for four weeks in The Evening Star.' Publication was made January 26 and 30, February 2, 6, 9, 13, 16, and 20. There were, therefore, two publications in each successive seven days from the date of the order. January 26 was on Friday. The contention is that the word 'week' means that series of days called a week commencing Sunday and ending Saturday, and that under this construction there was only one publication in the last week. Ronkendorff v. Taylor, 4 Pet. 349, 7 L. ed. 882, is cited as authority. In that case notice of a tax sale was required 'by advertising once a week, in some newspaper printed in the city of Washington, for three months,' and it was held that this did not require a publication on the same day in each week, the court saying (p. 361, L. ed. p. 886):

'A week is a definite period of time, commencing on Sunday and ending on Saturday. By this construction the notice in this case must be held sufficient. It was published Monday, January the 6th, and omitted until Saturday, January the 18th, leaving an interval of eleven days; still, the publication on Saturday was within the week succeeding the notice of the 6th.'

But the language of this statute is not 'for four weeks,' but 'for a period of not less than four weeks,' and the words of the order must be construed in the light of the statute. A like difference was called to the attention of the court in Early v. Homans, 16 How. 610, 14 L. ed. 1079, where the publication was to be 'once in each week, for at least twelve successive weeks,' and commenting thereon it was said (p. 617, L. ed. p. 1082):

'The preposition 'for' means of itself duration, when it is put in connection with time, and, as all of us use it in that way in our everyday conversation, it cannot be presumed that the legislator, in making this statute, did not mean to use it in the same way. Twelve successive weeks is as definite a designation of time, according to our division of it, as can be made. When we say that anything may be done in twelve weeks, or that it shall not be done for twelve weeks, after the happening of a fact which is to precede it, we mean that it may be done in twelve weeks or eighty-four days, or, as the case may be, that it shall not be done before.'

Further, the object of a notice is to enable the parties affected thereby to be present and obtain a hearing. The caveators appeared and without seeking further time, for the purpose of securing additional testimony or preparing for the hearing, went to trial on the issues submitted to the jury. They at least cannot claim to be prejudiced by any defect in the notice.

But the substantial question is whether the court erred in taking the case from the jury and directing a verdict sustaining the will. The questions submitted for consideration were whether the testator was at the time of executing the will 'of sound mind, capable of executing a valid deed or contract;' whether the will was 'procured by the threats, menaces, and duress exercised over him (the testator) by Samuel H. Lucas or any other person or persons,' and whether it was 'procured by the fraud of Samuel H. Lucas or any other person or persons.'

Although jurors are the recognized triers of questions of fact, the power of a court to direct a verdict for one party or the other is undoubted, and when a court has done so and its action has been approved by the unanimous judgment of the direct appellate court, we rightfully pay deference to their concurring opinions. Patton v. Texas & P. R....