Connolly v. Connolly

• Court: Virginia Supreme Court
• Writing for the Court: BURKS, J.
• Citation: Connolly v. Connolly, 73 Va. 657 (1880)
• Decision Date: 22 January 1880
• Parties: CONNOLLY v. CONNOLLY & als.

73 Va. 657

CONNOLLY v. CONNOLLY & als.

Supreme Court of Appeals of Virginia.

January 22, 1880

I. The court in which a bill is filed under the statute to impeach or establish a will is not a mere court of probate, but something more. It is a court of equity, and though its powers over the subject confided to it are limited, it may on a proper bill, review and correct errors in its proceedings after final decree in the cause.

II. On a bill filed under the statute to invalidate the probate of a will, which had been admitted to probate as the will of C there was a final decree in the cause establishing the paper as the will of C, and this was affirmed on appeal. A relation of C, interested in his estate, who was an infant at the time, and was not made a party, or represented in the case may file a bill to review the decree. And the bill stating the fact that the plaintiff was an infant at the time of the decree, and was not a party or represented in the case; and also the discovery of evidence since the decree which, as stated, is of great importance and not cumulative--HELD:

1. Upon the application for leave to file the bill, the statements of the bill must be taken as true.

2. The grounds stated in the bill are sufficient to authorize the bill of review.

III. The present state of the law of probate in Virginia is, that a sentence pronounced by a court having jurisdiction, whether it be a sentence admitting a paper to probate or excluding it from probate, as long as it remains in force, binds conclusively not only the immediate parties to the proceeding in which the sentence is had, but all other persons, and all other courts; and the principle applies as well to a sentence represented by a verdict of a jury and decree thereon in the proceeding by bill under the statute as to a sentence pronounced in any other authorized probate proceeding.

This was an application by Rosa Ann Connolly to the circuit court of Fairfax county, to be permitted to file a bill to review the decree of said court, which had been affirmed upon appeal by the court of appeals, admitting to probate a paper propounded as the will of Edmund Connolly. That case is reported in 27 Gratt. 313, under the name of Cody v Conly & als. The grounds upon which the application is made are set out in the opinion of the court delivered by BURKS, J.

The circuit court refused to allow the bill to be filed, and the petitioner applied to a judge of this court for an appeal which was granted.

H. O. Claughton, for the appellant.

Thomas & Carter, for the appellees.

OPINION

BURKS, J.

After the affirmance by this court of the decree of the circuit court of Fairfax county, in the case of Cody v. Conly & others, reported in 27 Gratt. 313, et seq., and within three years after said affirmance, the present appellant, Rosa A. Connolly, one of the heirs and next of kin of Edmund Connolly, deceased, presented her bill to the said circuit court, praying a review and reversal of the decree aforesaid, which established, on the verdict of a jury rendered on the trial of the issue directed, that a certain writing set out in the record, which had been admitted to probate in the county court of Fairfax county, was the true last will and testament of the said Edmund Connolly, deceased, and praying further that an issue be ordered to be tried by a jury to ascertain whether any, and if any, how much of the said writing was the true will of the said Edmund Connolly, and that said writing bc cancelled and declared void, & c.

The record of the original suit is referred to and made a part of the bill, and the prayer for review and reversal of the decree, and for an issue, is based on two grounds:

1st. That the complainant, as one of the heirs and distributees of the decedent, Edmund Connolly, had a direct interest in the subject-matter of controversy in said suit, and should have been a party thereto; that she was an infant at the commencement and during the pendency of the suit, was not a party, and was not represented therein either by guardian ad litem or otherwise.

The record does not show that any guardian ad litem was appointed to represent her, or that any answer was ever filed for her, or that any one ever appeared for or represented her in the cause, although she was named as a party defendant in the bill, and the process was returned " executed by posting copies on door of residence, no person being found there."

2d. That since the decree and affirmance thereof by this court she has discovered evidence that would prove that the said writing, admitted to probate as the last will and testament of Edmund Connolly, deceased, is not in his handwriting, and is a forgery, a pretence, and a fraud, of which Margaret Connolly (the widow of said decedent, and a party to the suit) had notice, and in which she participated; that she has discovered that the said paper is in the handwriting of one Thomas Kerans, and was written by him after the death of the said Edmund Connolly; that said Kerans being ill and expecting to die, did, on the 26th day of November, 1876, (which was after the affirmance of the decree aforesaid by this court), send for the Rev. Father J. B. DeWolf to receive his last confession, and did then confess that he wrote the said paper after the death of the said Edmund Connolly, and requested the said DeWolf to give to the parties interested information of the fact: and believing he was about to die, executed a paper in the following words:

" LEWENSVILLE, Nov. 26, 1876.

I certify on oath that I wrote, after the death of Edmund Connolly, the will that was supposed to be written by Mr. Connolly himself.

THOMAS KERANS."

That she can prove the fact that the paper admitted to probate aforesaid is not in the handwriting of the said Edmund Connolly, but in the handwriting of said Kerans, and was written after the death of said Edmund Connolly, by evidence not known at the time of the hearing and decision of the aforesaid suit, and which could not have been discovered before said hearing by the use of the most extraordinary diligence; that Kerans did not die, as he expected, at the time of the confession, and is now living and can be required to testify.

The bill was sworn to by the complainant; and, on being tendered, the circuit court refused liberty to file it, and from this order of refusal the present appeal was allowed.

That there may be an appeal from such an order, is decided in Lee's infants by next friend v. Braxton, 5 Call. 459; Williamson v. Ledbetter, 2 Munf. 521.

If the circuit court of Fairfax had jurisdiction, as a court of equity, to review the decree and proceedings complained of, there can be no doubt, we think, that liberty should have been granted to file the bill tendered. The complainant was an infant, not really a party to the suit, though named in the bill, being unrepresented by guardian ad litem or otherwise, and yet, in such a proceeding, the decree unreversed was to her prejudice, and this alone would seem to be a sufficient foundation for the review asked; but, in addition, the after-discovered evidence, in ordinary cases, would warrant the filing of the bill. All the requisites of a bill based on this ground are found in the bill of the appellant. 1. The evidence was discovered after the decree was rendered and affirmed. 2. It could not have been discovered before by the exercise of reasonable diligence. 3. It is material, and such as, if true, ought to produce, on another trial of the issue, a different result on the merits. 4. It is not merely cumulative.

A bill founded on after-discovered evidence, with the requisites just stated, may be filed to review a decree even after it has been affirmed by an appellate court. J. B. Campbell's ex'ors v. A. C. Campbell's ex'or, 22 Gratt. 649, and cases cited; Singleton v. Singleton & others, 8 B. Monroe, 340.

But it is contended by the learned counsel for the appellees, that on a bill filed under our statute to impeach the validity of a will, which has been admitted to probate in an ex parte proceeding, the court exercises the functions of a court of probate merely, and not of a court of equity, and that its jurisdiction is exhausted when the jury have rendered a verdict on the issue, and the court, approving the same, has pronounced its decree thereon; and hence, that a bill of review, which is a remedy appropriate only to courts of equity in the exercise of their ordinary powers, will not lie to correct errors in such a case.

There is no doubt that the statutory proceeding was designed as a secondary or final probate, and that the verdict of a jury on the issue prescribed is an essential feature in such proceeding. It is the verdict which ascertains and determines " whether any, and if any, how much of what was offered for probate be the will of the decedent." But the court though limited in its functions, is still a court of equity, and acts as such to the extent of its powers over the subject confided to it by the statute. The proceeding is commenced by bill, denominated in the act a " bill in equity." It must be framed as any other bill in equity would be framed, except that it must be confined in its aim and object to the specific relief contemplated by the statute--namely, the determination by a jury, on an issue to be directed and tried, of the validity or invalidity of the testamentary paper or papers which are drawn in question. Process to convene the parties issues, as in other cases in equity suits, and the pleadings are of the same nature. The court, by decree, settles and directs the issue. The trial may be had at the bar of the chancery court, or in some court of common law; but wherever had, the chancery court alone in which the suit is pending can grant a new...