Blackman v. Edsall

• Decision Date: 14 April 1902
• Citation: 17 Colo.App. 429,68 P. 790
• Parties: BLACKMAN v. EDSALL et al.
• Court: Colorado Court of Appeals

68 P. 790

17 Colo.App. 429

BLACKMAN v. EDSALL et al.

Court of Appeals of Colorado

April 14, 1902

Error to district court, Arapahoe county.

Augustus Blackman presented to the county court the will of Lizzie Du Bois, which it admitted to probate. On appeal to the district court by Lizzie D. Edsall and others, contestants, there was judgment for them, and Blackman brings error. Affirmed.

Edward R. Morris and Morrison & De Soto, for plaintiff in error.

Jos. H Maupin and O.S. Isbell, for defendants in error.

WILSON P.J.

In October, 1898, Mrs. Lizzie Du Bois, a widow 62 years of age, died possessed of property valued at about $12,000. Her sole heirs at law were four grandchildren all minors, and the children of a deceased daughter, her only child, who are defendants in error herein, as contestants of the will of the deceased. Soon after the death of Mrs. Du Bois the plaintiff in error presented to the county court for probate what purported to be her last will and testament executed about four weeks before her death. By the terms of the will, after directing the payment of two small bequests of $200 each, one to her "faithful nurse and housekeeper," and the other to her brother, the one-half of the residue of all her property was bequeathed to her four grandchildren before mentioned, in equal proportions; the same to be turned over to them as they should each become of full legal age. The remaining one-half was devised to the plaintiff in error, with the remainder at his death to his two children. The plaintiff in error was designated as executor of the will, without bond. Neither Blackman nor his children were of kin to the testatrix, and the father had been for several months prior to her death her agent and attorney in fact in the management of her property. In response to the citation issued from the county court, the defendants in error, the grandchildren and natural heirs of the deceased, appeared and filed objections to the probating of the will on the ground that at the time of its alleged execution the testatrix lacked testamentary capacity, and also that it was executed through the undue and improper influence of the plaintiff in error, Blackman. Upon hearing in the first instance in the county court it was found that the will should be admitted to probate, and from this an appeal was taken by the defendants in error to the district court. There the trial was to a jury, whose verdict was in favor of the contestants. In response to two several interrogatories submitted, the jury found that the testatrix was of sound mind at the time of executing the will, but that undue influence was exercised over her by the proponent, Blackman, to procure the making of the will. The general verdict was that the will was not the will of decedent. Judgment was thereupon rendered declaring the instrument not the will of decedent, and refusing it probate, and the plaintiff in error brings it here for review.

On the day of the commencement of the trial, but before the jury was sworn, the proponent filed a motion to dismiss the appeal on the ground that the appeal bond, which ran to the estate of Lizzie Du Bois, was not a bond with proper parties, nor one upon which suit could be maintained by the proponent. The motion was denied, and this is assigned for error. Waiving the question as to whether this motion, even if well founded at all, was interposed in proper time,--the appellee having previously entered his general appearance, and the motion not being made until the very day the case was set for trial and had commenced,--we do not think that there was error in denying it. In an ordinary action, there must be a plaintiff--one who institutes the suit--and a defendant. Upon appeal in such cases the statute requires that the bond shall run to the adverse party, but the proceeding under consideration is totally unlike an ordinary action in many respects. The proponent who produces the will may not be a party to the proceeding,--indeed, may have no interest whatever in it. The statute requires that any person having in possession any last will shall within a certain time after the death of the testator present the same to the county court of the county for probate. Gen.St. § 3490; Mills' Ann.St. § 4661. But no statute requires that he shall thereby become a party to a suit, or to any proceeding by which he might become liable for any costs. It is immaterial by whom a will is presented. In re Storey, 120 Ill. 249, 11 N.E. 209. In fact, there are no parties to the proceeding in a county court to probate a will. When the will is produced, the court may proceed of its own motion. The proceeding is in rem. The judgment is in rem, and is not for or against any party. From it any person interested may appeal. In re Storey's Will, 20 Ill.App. 188. In this case the court, after declaring that the proceeding and judgment were in rem, said: "And if so, how can the proceeding be said to be inter partes? The judgment is what determines, and it is simply a declaration on the will, and not a judgment for or against appellant or any other person interested. The appeal is the method provided by law by which the circuit court gets jurisdiction to pronounce a judgment in the matter. It is not an appeal for the purpose of reviewing the judgment of the court below, but is the transferring of the case into a forum where it is to be heard de novo on original evidence, and where evidence may be introduced which is not competent on the hearing in the probate court. The statute gives to any party in interest the right to so transfer the case by appeal, but, when once in the circuit court, the party so bringing it into court stands in the same relation to the proceeding as any other party in interest. The question in the circuit court, as in the probate court, is simply will or no will; and the judgment of the court, when rendered, unless reversed or set aside in some proceeding for that purpose, is binding on all persons, whether in any manner they appear as formal parties on the record or not. On the trial the parties may arrange themselves upon the issue as in favor of or in opposition to the probate of the will, and all those who seek to have the will admitted to probate become proponents, and those who oppose it become contestants." In Fuller v. Fuller's Estate, 7 Colo.App. 556, 44 P. 72, this court, in considering the statute controlling appeals from county courts in probate matters (Laws 1891, p. 109, § 3; Mills' Ann.St. § 1097), held that an appeal in such cases, even when taken by an executor or administrator, was, in effect, the appeal of the estate. This being true, we think it reasonably and logically follows that in a proceeding of this kind, where there is no executor or administrator, and which is not a civil action having parties plaintiff and defendant, the party adverse to the appealing contestants, if there be any at all, is the estate of the decedent upon which administration is sought. There can be no executor until after the will is probated, and hence it would seem within reason that the party adverse to the contestants could be the estate of the decedent only, until probate had been finally effected. In a proceeding to probate, the costs thereof are taxable against the estate, not against the person who had possession of the will, and who presented it for probate. In an appeal by contestants, the only object of an appeal bond is to protect from the payment of costs the person or party who might become liable therefor by reason of the appeal, and that one is the estate. In our opinion, the court properly denied the motion to dismiss.

It is also alleged for error that the court improperly overruled a challenge for cause, of counsel appearing for the proponent to two jurors, on examination upon their voir dire. Whether this was error or not requires no discussion, and is immaterial, because it does not appear from the record that, even if error, the proponent was prejudiced thereby. Neither of the two jurors was accepted, or served on the jury. It does not appear even that they were peremptorily challenged by the proponent,--much less, that the proponent was compelled by this action of the court to exhaust his peremptory challenges upon these two jurors. Even though the court erred in failing to sustain the challenges for cause, unless it should appear that the proponent was compelled thereby to accept the disqualified jurors, or to exhaust...