Childers v. Milam

• Decision Date: 24 January 1911
• Parties: CHILDERS et al. v. MILAM et al.
• Court: West Virginia Supreme Court

70 S.E. 118

68 W.Va. 503

CHILDERS et al. v. MILAM et al.

Supreme Court of Appeals of West Virginia.

January 24, 1911

Submitted June 3, 1909.

Syllabus by the Court.

In a suit under the provisions of Code 1906, c. 77, § 32, to impeach the probate of a will, the validity of a subsequent probate of a wholly different paper cannot be established.

The absolute validity of the rights of plaintiff is not a question in such suit. In this particular it is sufficient for plaintiff to show a bona fide interest in impeaching the will.

Admissions in answers of adult defendants cannot bind infant defendants in the cause. A decree against the rights of infants standing only on these admissions must be reversed.

Appeal from Circuit Court, Wyoming County.

Bill by Col. Childers and others against Victoria Milam and others. Decree for plaintiffs, and defendants appeal. Reversed and remanded.

File & File, for appellants.

ROBINSON J.

The object of this suit, as plainly expressed in the plaintiffs' bill, is to determine whether a certain paper writing admitted to probate is the last will and testament of John A. Dixon, deceased. It is clear that the proceeding is based on the provisions of Code 1906, c. 77, § 32. The bill invokes the aid of this statute. It seeks to impeach the probate of the paper, and the validity of that paper as a will, in the manner and within the time provided by the statute. Plaintiffs are the alienees of one of the heirs of the decedent. If the probated will is annulled they may be able to take a larger share in the lands devised by the will then they can have under it. They properly aver the interest which they have in impeaching the probate, and they exhibit the contract and deeds by which the interest of the heir is now vested in them. All proper parties are made defendants. The demurrers to the bill were rightly overruled.

The infant children of the decedent were represented by guardian ad litem, who put in the usual formal answer for them. The widow and adult children of the decedent filed answers, in which they admitted that the paper probated is not the decedent's last will and testament. They say that it is a substantial copy of the genuine will, and that the original and true will has been probated since the institution of this suit. They pray that the will last probated be established by proceedings in the cause. The answers of the adult defendants undertake to raise an issue as to the interest of plaintiffs enabling them to maintain the suit, by averring that the heir was insane at the time he conveyed his interest in the land to the plaintiffs.

The court very properly sustained exceptions to the answers in so far as they undertook to set up and establish the probate of another and different paper writing than the one sought to be impeached by the bill. And very properly in the final decree annulling the will attacked, a clause reserved all questions regarding the validity of the later probate and the genuineness of the paper therein involved as a will of the decedent. Questions in relation to the validity of the probate of another paper were not properly cognizable in the cause. The issue in the suit was a narrow one. It was an issue wholly in regard to the validity of the will first probated and sought to be impeached. This issue could not be extended so as to involve the validity of the other document. That document may be the basis of another suit and a separate issue, but its establishment has nothing to do with the proceedings simply to impeach a wholly different paper. The statute defines what the issue shall be in a case like the one at hand: "If required by either party, a trial by jury shall be ordered, to ascertain whether any, and if any how much, of what was offered for probate be the will of the decedent." So observe that the issue relates merely to "what was so offered for probate." It does not relate to something that was not embraced in the probate brought into question by the suit. "Upon the determination of the question as to whether the paper is the will of the decedent or not, the...