Dawson v. Dawson.

• Decision Date: 27 May 1941
• Docket Number: (CC 644)
• Citation: 123 W.Va. 380
• Parties: Carrie B. Dawson, In her own right and as Executrix ofthe will of N. C. Dawson, Deceased v. J. L. Dawson et al.
• Court: West Virginia Supreme Court

123 W.Va. 380

Carrie B. Dawson, In her own right and as Executrix ofthe will of N. C. Dawson, Deceased

v.J. L. Dawson et al.

(CC 644)

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1941.

Decided May 27, 1941.

1. Appeal and Error

"Lack of jurisdiction may be raised for the first time in this court, when it appears on the face of the bill and proceedings, and it may be taken notice of by this court on its own motion." Pt. 3, Syl., Charleston Apartments Corp. v. Appalachian Elec- tric Power Co., 118 W. Va. 694, 194 S. E. 294.

2. Wills

A county court, as a part of its probate powers under West Virginia Constitution, Article VIII, Section 24, has jurisdiction to determine whether a writing, tendered for probate is testamentary in character. A court of equity cannot interfere with such jurisdiction by injunction on the ground that an instrument submitted for probate is not testamentary in character.

Certified from Circuit Court, Preston County.

Suit in equity by Carrie B. Dawson, in her own right and as executrix of the will of N. C. Dawson, deceased, against J. L. Dawson and others to enjoin the prosecution by defendants of an appeal to the circuit court from an order of the county court refusing to admit to probate as deceased's last will and testament a certain paper writing. The circuit court overruled a demurrer to the bill of complaint and certified its action to the Supreme Court of Appeals.

Ruling reversed; demurrer to bill of complaint sustained.

Charles P. Wilhelm and J. V. Gibson, for plaintiff.

P. J. Crogan and Wyckojf & Wyckoff, for defendants.

Riley, Judge:

The Circuit Court of Preston County certifies its action in overruling the demurrer of the defendant, J. L. Dawson, to plaintiff's bill of complaint and sustaining plaintiff's demurrer to said defendant's answer, in the equity suit of Carrie B. Dawson, in her own right and as executrix of the will of N. C. Dawson, deceased, against J. L. Dawson and others.

Plaintiff seeks to enjoin the prosecution, by defendants, of an appeal to the Circuit Court of Preston County from an order of the county court of said county, entered February 19, 1940, refusing to admit to probate as decedent's last will and testament a paper writing, dated November 3, 1937, claimed by defendant, J. L. Dawson, to have been signed and written wholly in decedent's handwriting. The injunction is sought until the circuit court first determines whether the writing is testamentary, and, second, if so, adjudges it sufficiently plain to enable any "devisee" claiming thereunder to take any claimed "devise."

Because the case involves, in the first instance, an appraisement of the bill of complaint, it is necessary, at the risk of prolixity, to summarize its allegations in detail:

On or about November 6, 1937, N. C. Dawson died, owning real and personal property in Preston County; on or about November 23, 1937, a writing, dated June 3, 1912, was probated as his last will and testament; thereafter the defendants, J. L. Dawson and others, brought a suit in chancery in the circuit court against the plaintiff herein, in her own right, and others, with process returnable to October Rules, 1938, for the purpose of impeaching the instrument of June 3, 1912, and praying for an issue devisavit vel non; on November 10, 1939, a jury found the paper in issue to be the last will and testament, the court entered a decree on the verdict, and the contestants moved in arrest of judgment; on November 27, 1939, a motion was made to set aside the verdict, which motion was overruled; on November 29, 1939, contestant, J. L. Dawson, renewed the motion to set aside the verdict and asked for a new trial upon the ground of after-discovered evidence, "especially upon the ground that since the conclusion of the trial * * * there had been found a true will of the decedent, N. C. Dawson, executed on a date after the will in controversy herein"; on the last-mentioned day, J. L. Dawson presented a writing, bearing date November 3, 1937, to the clerk of the county court for probate, which was refused on the same day, and an appeal (sought to be enjoined by the instant suit) taken to the circuit court; and, on June 13, 1940, said Dawson and the other contestants renewed their motions, made in the suit to impeach the writing of June 3, 1912, in arrest of judgment, to set aside the verdict and to grant a new trial, all of which were overruled by the court. Thus it may be seen that J. L. Dawson's appeal from the order of the county court refusing probate of the writing of November 3, 1937, was had after the order of November 10, 1939, entered upon the jury verdict, and before the court had disposed of the motions in arrest of judgment and to set aside the verdict in the pending equity suit.

The demurrer to the bill, in substance, is to the effect that the writing of November 3, 1937, is testamentary in character, and a codicil to the instrument of June 3, 1912.

The threshold question on this certificate is jurisdictional, and arises under West Virginia Constitution, Article VIII, Section 24, defining the powers of county courts: Does a county court in a probate proceeding have jurisdiction to determine whether a writing presented to it for probate is testamentary in character?

This question, though argued by counsel orally in response to questions addressed to them, was not raised in the petition cr briefs. "Lack of jurisdiction may be raised for the...