Campbell v. Porter

• Decision Date: 20 April 1896
• Docket Number: No. 137,137
• Citation: 40 L.Ed. 1044,162 U.S. 478,16 S.Ct. 871
• Parties: CAMPBELL v. PORTER et al
• Court: U.S. Supreme Court

162 U.S. 478

16 S.Ct. 871

40 L.Ed. 1044

CAMPBELL

v PORTER et al.

No. 137.

April 20, 1896.

This was a petition by the executors of the will of the late Admiral David D. Porter, who died February 13, 1891, to the special term of the supreme court of the District of Columbia, sitting as an orphans' court, for the admission to probate of his will, and of a codicil thereto.

Upon citation to the next of kin, Elena Porter, a daughter of the testator (having become, by marriage, Elena Campbell) appeared, and demanded full proof of the execution of the will and codicil.

The will and the codicil each bore the signature of the testator, and those of the same three persons as witnesses. At the hearing in special term, it was shown by the examination of the witnesses that the will was duly executed by the testator, and attested by all three witnesses, and that the codicil was signed by the testator, and attested by two of the witnesses; and the only controverted question was whether the testator did or did not make or acknowledge his signature to the codicil in the presence of the third witness.

Upon the whole evidence (which was set forth in the record, but is unnecessary to the understanding of the points decided by this court), the judge holding the special term ordered the will to be admitted to probate as to both real and personal property, and the codicil to be admitted to probate in respect of personal property, and certified to the general term, for hearing in the first instance, the question of the sufficiency of the codicil to devise or dispose of real estate.

At the hearing in general term it was ordered and adjudged, for reasons stated in the opinion reported in 9 Mackey, 493, that the codicil was duly executed by the testator, and subscribed and attested by three witnesses, as required by law, and should be admitted to probate as a devise of real estate. A bill of exceptions to this ruling and order was tendered by Mrs. Campbell, and allowed by the court, which certified that the value of the real estate devised to her in the codicil was less than that devised to her in the will by more than the sum of $5,000,—a sufficient amount to sustain the appellate jurisdiction of this court, under the act of March 3, 1885, c. 355 (23 Stat. 443). And Mrs. Campbell on June 22, 1892, sued out this writ of error.

Walter D. Davidge, for plaintiff in error.

Chapin Brown, for defendants in error.

[Argument of Counsel from pages479-481 intentionally omitted] Mr. Justice GRAY, after stating the case, delivered the opinion of the court.

It was contended in behalf of the defendants in error that the case should have been brought to this court by appeal, and not by writ of error. But we consider this point as settled by the decision made six years ago in Ormsby v. Webb, 134 U. S. 47, 64, 65, 10 Sup. Ct. 478, in which a motion to dismiss, for the same reason, a writ of error to review a judgment of the supreme court of the District of Columbia, admitting a will to probate, was denied by this court, not merely because in that case a trial by jury had been actually had, but upon the more general ground that a proceeding for the probate of a will in the District of Columbia was not a suit in equity, and was a case in which the parties had the right to claim a trial by jury, and in which there might be adversary parties, and a final judgment affecting rights of property. See Price v. Taylor, 21 Md. 356, 363. The decision in Ormsby v. Webb has since been understood as governing the practice in the District, and evidently guided the course of the plaintiff in error in the present case. Under these circumstances, the question whether the form of bringing up a probate case shall be by writ of error or by appeal does not apper to us to be so important in its consequences that it should now be reconsidered.

A more serious question of jurisdiction, presented by this record, is whether the supreme court of the District of Columbia had power to admit a will or codicil to probate as a devise of real estate. Curiously enough, it is the plaintiff in error who contends that it had, and the defendants in error who insist that it had not. But it is immaterial by which party the question is made; for, being a question of jurisdiction, it would be the duty of this court, of its own motion, to take notice of it.

This question depends upon the act of congress of July 9, 1888, c. 597, entitled 'An act relating to the record of wills in the District of Columbia,' and the whole of the rest of which is as follows: 'The record of any will or codicil, heretofore or hereafter recorded in the office of the register of wills of the District of Columbia, which shall have been admitted to probate by the supreme court of the District of Columbia, or by the late orphans' court of said district, or the record of the transcript of the record and probate of any will or codicil elsewhere, or of any certified copy thereof, heretofore or hereafter filed in the office of said register of wills, shall be prima facie evidence of the contents and due execution of such wills and codicils: provided, that this act shall not apply in any cause now pending in any of the courts of the District of Columbia.' 25 Stat. 246.

In order to determine the scope and effect of this act, it as necessary to consider what the law upon the subject was in the District of Columbia before its passage.

The law of wills and of probate, as existing in Maryland on February 27, 1801, is the law of the District of Columbia, except as since altered by congress; and the supreme court of the District of Columbia, in special and general term, respectively, has, by virtue of successive acts of congress, the probate jurisdiction formerly exercised by the orphans' court and the court of chancery of the state of Maryland, and by the orphans' court and the circuit court of the United States for the District of Columbia; with authority, also, at a special term, to order any matter to be heard in the first instance at a general term. Acts Feb. 27, 1801, c. 15, §§ 1, 12 (2 Stat. 103, 107); March 3, 1863, c. 91, §§ 3, 5, 16 (12 Stat. 763, 764); June 21, 1870, c. 141, §§ 4, 5 (16 Stat. 161); Rev. St. D. C. §§ 772, 800, 930.

The older laws of the state of Maryland concerning wills, executors, and guardians were amended and codified by the statute of 1798, c. 101, drawn up by Chancellor Hanson, and published in 2 Kilty's Laws, and containing the following provisions:

By subchapter 1, § 4 (following the English statute of frauds of 29 Car. II. c. 3, § 5), it was enacted that 'all devises and bequests of any lands or tenements, devisable by law, shall be in writing, and signed by the party so devising the same, or by some other person in his presence, and by his express directions, and shall be attested and subscribed, in the presence of the said devisor, by three or four credible witnesses, or else they shall be utterly void and of none effect.'

Subchapter 2, in sections 1-3, made various provisions for securing the prompt delivery of 'a will or codicil,' after the death of the testator, to the register of wills for safe-keeping until probate, and, in section 4, enacted that 'an attested copy, under the seal of office, of any will, testament or codicil, recorded in any office authorized to record the same, shall be admitted as evidence in any court of law or equity, provided that the execution of the original will or codicil be subject to be contested until a probate hath been had according to this act.'

That statute did not authorize the probate of wills of real estate. But in subchapter 2, §§ 5-13, and subchapter 15, §§ 16-18, it made full and minute provisions for the probate in the orphans' court of 'any will or codicil, containing any disposition relative to goods, chattels or personal estate,' by which such a will might, if uncontested, be admitted to probate at once, or, if contested, be dealt with 'according to the testimony produced on both sides,' and be admitted to probate 'on such proof as shall be sufficient to give efficacy to a will or codicil for passing personal property,' or, at the request of either party, by a plenary proceeding, upon bill or petition, answer under oath, and depositions, and, it might be the findings of a jury upon issues sent to a court of law for trial, with a right of appeal from the orphans' court to the court of chancery or general court.

By the law of Maryland, and consequently of the District of Columbia, in accordance with what was the law of England until the statute of 1 Vict. c. 26, a will of personal property need not be attested by subscribing witnesses, but might be established, when offered for probate, by the testimony of any two witnesses, or by equivalent proof. 1 Williams, Ex'rs (7th Ed.) 85, 343; Dorsey, Test. Law, 57; McIntire v. McIntire, 16 Sup. Ct. 814; 8 Mackey, 482, 489. A will of personal property, until admitted to probate, was not competent evidence in another suit Armstrong v. Lear, 12 Wheat. 169, 176. And in Maryland, under the statute of 1798, an order granting or refusing probate of a will, as to personally, has been considered, not merely prima facie, but conclusive, evidence in a subsequent suit. Warford v. Colvin, 14 Md. 532, 554; Johns v. Hodges, 62 Md. 525, 534.

In Darby v. Mayer (1825) this court recognized that by a probate under that statute the will was conclusively established as to personalty, but decided that the clause of subchapter 2, § 4, above quoted, by which 'an attested copy, under the seal of office, of any will, testament or codicil, recorded in any office authorized to record the same, shall be admitted as evidence in any court of law or equity,' did not make such a copy of the recorded probate of a will evidence...