Branch v. Branch

• Decision Date: 10 April 1939
• Docket Number: Record No. 2037.
• Citation: 172 Va. 413
• Parties: EARLEY BRANCH v. ROSA BRANCH, IN HER OWN RIGHT AND AS EXECUTRIX OF THE ESTATE OF GEORGE BRANCH, DECEASED.
• Court: Virginia Supreme Court

Page 413

172 Va. 413

EARLEY BRANCH v. ROSA BRANCH, IN HER OWN RIGHT AND AS EXECUTRIX OF THE ESTATE OF GEORGE BRANCH, DECEASED.

Record No. 2037.

Supreme Court of Virginia, Richmond.

April 10, 1939.

Present, Campbell, C.J., and Holt, Gregory, Browning, Eggleston and Spratley, JJ.

1. WILLS — Contest — Pleading — Demurrer Based on Statute of Limitations — Case at Bar. — In the instant case, a suit to impeach a will, defendant filed a demurrer on the ground that the action was barred by the statute of limitations, because the will had been probated more than four years prior to the institution of the suit. Complainant contended that defendant could not take advantage of the statute of limitations by demurrer to a bill in equity.

Held: That in view of section 5259 of the Code of 1936, authorizing the proceeding, there was no merit in complainant's contention.

2. WILLS — Contest — Jurisdiction Purely Statutory. — The only jurisdiction in a court of equity to hear a suit to impeach a will is that conferred by section 5259 of the Code of 1936.

3. WILLS — Contest — Method and Right Dependent on Statute. — The method and the right of impeaching a will depend upon section 5259 of the Code of 1936.

4. WILLS — Contest — Limitation — Statutory Limitation Is of Right as Well as Remedy. — The right to impeach a will is provided by section 5259 of the Code of 1936, which creates the right and prescribes a special limitation upon the right — the time within which such right can be exercised; thus, the limitation is of the right as well as of the remedy, and does not constitute a pure statute of limitations — one affecting the remedy only.

5. LIMITATION OF ACTIONS — Pleading — Necessity for Pleading Statute Specifically. — A pure statute of limitations must be specifically pleaded.

6. LIMITATION OF ACTIONS — Special Limitation Prescribed by Statute Creating New Right — Effect on Right to Sue and Jurisdiction. — In the case of a special limitation prescribed by a statute creating a new right, the right to bring the suit and the jurisdiction of the court depend upon the suit being brought within the period of limitation.

7. LIMITATION OF ACTIONS — Pleading — Demurrer — Special Limitation Prescribed by Statute Creating New Right. — In the case of a special limitation prescribed by a statute creating a new right, a declaration or a bill is demurrable not only where it shows on its face that the prescribed period has elapsed, but also unless it affirmatively shows that such period has not expired.

8. WILLS — Contest — Limitation — Bill Filed More Than Four Years after Probate Demurrable — Case at Bar. — In the instant case, a suit to impeach a will, defendant filed a demurrer on the ground that the action was barred by the statute of limitations, because the will had been probated more than four years prior to the institution of the suit. No evidence was taken, and the trial court sustained the demurrer and dismissed the bill. Leave was not asked to amend, and neither in the record nor in the argument on appeal was it denied that the will was admitted to probate more than four years prior to the institution of the suit.

Held: That the bill was on its face insufficient in law, and the trial court should have sustained the demurrer.

Appeal from a decree of the Corporation Court of the city of Newport News. Hon. Thomas J. Barham, judge presiding.

The opinion states the case.

William Davis Butts, for the appellant.

R. H. Pree, for the appellee.

SPRATLEY, J., delivered the opinion of the court.

In December, 1937, Earley Branch and Andrew Branch filed their bill against Rosa Branch, in her own right and as the executrix of the estate of George Branch, deceased, to impeach and set aside the will of the decedent.

The bill was in the barest skeleton form. The complainants alleged that the defendant, without any notice to them, had "offered for probate," in the clerk's office of the Corporation Court of the city of Newport News, a paper writing purporting to be the last will and testament of George Branch, their late brother, bearing date of November 12, 1932; that the paper writing was not the last will and testament of George Branch and was not in the form required by law. They prayed that George Branch be declared to have died intestate and the paper writing not his last true will and testament.

The bill does not, in terms, allege that the will was admitted to probate, or state the date of such probate. No copy of the will, or order of probate, or any record of an appeal therefrom, is attached as an exhibit. Since the defendant was described as the executrix of the will, there must have been a probate, and it may be assumed that it was made before the clerk on the date the will was "offered for probate."

The defendant filed a demurrer, and, in addition to the ground that the bill was not sufficient in law, assigned the further ground that the action was barred by the statute of limitations, because the will had been probated for more than four years prior to the institution of the suit.

No evidence was taken. The trial court sustained the demurrer on the ground that the suit was barred by the statute of limitations, and dismissed the bill. Leave was not asked to amend the bill. Neither in the record, nor in the argument here, is it denied that the will was admitted to probate on February 28, 1933, more than four years prior to the institution of this suit.

Andrew Branch having died after the suit was instituted, the cause was dismissed as to him, and Earley Branch thereafter prosecuted this appeal.

The plaintiff in error contends that the defendant can not take advantage of the statute of limitations by a demurrer to a bill in equity. To sustain his contention, he relies upon the cases of Salyer Co., Inc., et al. Doss Coal Co Inc., et al., 157 Va. 144, 160 S.E. 54 and Hubble Poff, 98 Va. 646, 37 S.E. 277.

The answer to this contention is found in a consideration of the provisions of the statute authroizing .this proceeding, and in the case of Savings Bank of Richmond Powhatan Clay Mfg. Co., 102 Va. 274, 46 S.E. 294, 1 Ann.Cas. 83, and the several pertinent authorities therein cited.

This proceeding was instituted under and by virtue of Virginia Code 1936, section 5259. This section provides that a proceeding by a bill in equity to impeach or establish a will may be filed with one year from the date of the order of probate made by a court, with a like limitation upon an order of probate made by a clerk of a court, if no appeal be taken from such order. It further expressly provides "If no such bill be filed within that time, the sentence or order shall be forever binding." Prior to the amendment of this section in 19...