Domestic & Foreign Missionary Soc. of the Protestant Episcopal Church v. Eells

• Court: Vermont Supreme Court
• Writing for the Court: THOMPSON
• Citation: Domestic & Foreign Missionary Soc. of the Protestant Episcopal Church v. Eells, 35 A. 463, 68 Vt. 497 (Vt. 1896)
• Decision Date: 28 July 1896
• Parties: THE DOMESTIC AND FOREIGN MISSIONARY SOCIETY, PROTESTANT EPISCOPAL CHURCH IN THE UNITED STATES OF AMERICA ET ALS., APTS., v. ISAAC L. EELLS, A. ELIZABETH SPERRY ET AL

35 A. 463

68 Vt. 497

THE DOMESTIC AND FOREIGN MISSIONARY SOCIETY, PROTESTANT EPISCOPAL CHURCH IN THE UNITED STATES OF AMERICA ET ALS., APTS., v. ISAAC L. EELLS, A. ELIZABETH SPERRY ET AL

Supreme Court of Vermont

July 28, 1896

JANUARY TERM, 1896

Bill in equity. Heard upon the demurrer of the defendants at the June term, 1895, Addison county. Ross, Chancellor, sustained the demurrer pro forma. The orators appeal.

The pro forma decree of the court of chancery is reversed; the demurrer contained in the answer of the defendants, Isaac L. Eells and A. Elizabeth Sperry is overruled, and the orators' bill adjudged sufficient and the answer of defendants, Eells and Sperry is ordered brought forward, from which and the orators' bill, it appears that the proof and allowance of the alleged last will and testament of Lydia E. Conroe, deceased, late of Middlebury, in the county of Addison, and under which will the orators claim title, is in controversy; therefore the cause is remanded to the court of chancery, with direction to that court to retain the case, and to make such further temporary orders as may be necessary to preserve the property in controversy, and to continue such orders and the injunction for such time as, in the opinion of said court may be necessary to enable the orators to prove and establish said will in the county court where proceedings for the probate thereof are now pending; and in default of the orators so proving and establishing said will within the time limited as aforesaid, their bill to be dismissed with costs to the defendants. If within the aforesaid time, the orators prove and establish said will by a final judgment of the county or supreme court, let the court of chancery further retain said cause; and if in due administration of the estate of said Conroe, the jurisdiction and powers of the probate court for the district of Addison prove inadequate to establish and protect the rights and title of the orators under said will, in the property, personal and real, in controversy, the court of chancery is directed to further proceed with said cause to the extent of granting the orators such relief in the premises as they may be entitled to in equity, and which the powers and jurisdiction of said probate court are inadequate to grant. If such ancillary aid of the court of chancery shall not be needed, then, finally, let the bill be dismissed upon such terms in respect to costs, as that court may deem equitable. Defendants Eells and Sperry to recover their costs in this court.

C. M. Wilds and W. H. Bliss for the orator.

OPINION

THOMPSON

The orators claim to maintain this bill in chancery as legatees and devisees under an alleged last will and testament of Lydia E. Conroe, deceased, which it is charged was fraudulently destroyed in her life time by the defendant, Isaac L. Eells.

After the decease of Conroe, the orators, the wardens and vestrymen of the First Episcopal Society of Addison county, presented the alleged will for probate to the probate court for the district of Addison, in which district she resided at the time of her death, and probate thereof was refused. From this decision an appeal was taken by the proponents to the county court, and the question of the probate of the will is still pending therein.

The orators have no standing in court if Lydia E. Conroe died intestate. If they have any title to any part of her estate, personal or real, it is derived through her last will. If she left no will, the possession of the property alleged to belong to her estate by defendants Eells and Sperry, is sufficient title to enable them to hold the same as against the orators, who, in that event, would be mere strangers and intermeddlers as to her estate. Hence, at the outset, the orators must establish that Conroe died testate, and must establish the contents of the will so far as they claim the same constitutes them devisees and legatees thereunder.

Defendants Eells and Sperry by demurrer, have raised the question whether in this state, the court of chancery has jurisdiction to establish spoliated, suppressed and destroyed wills.

Chapter 2, Art. 5 of the Constitution of Vermont, so far as it relates to this question, is as follows:

"A future legislature may, when they shall conceive the same to be expedient and necessary, erect a court of chancery, with such powers as are usually exercised by that court, or shall appear for the interest of the commonwealth."

This article of the constitution was adopted in 1786 and has since been retained. It was thus left with the legislature to determine the powers and jurisdiction of such court when created. They might be the same as were possessed at that time by the court of chancery in England, or they might be modified as in the judgment of the legislature, the best interest of the state might require. Under this grant of power, a court of chancery was created by the legislature as early as 1788, St. 1788, p. 10.

From that time to the present, the powers of that court as defined by statute, have been substantially as now declared by Vt. St., s. 907, which section reads:

"There shall be a court of chancery, the powers of which shall be vested in a chancellor; and the powers and jurisdiction shall be the same as those of the court of chancery in England, except as modified by the constitution and laws of this state."

It is necessary to consider whether at the time of the adoption of this provision of the constitution, the court of chancery in England had jurisdiction to set up spoliated, suppressed and destroyed wills. At that time there was no way in England by which a will devising real estate, could be established and probated once for all. It was considered as a muniment of title, and was required to be proven whenever necessary to establish title, and might be attacked whenever offered in evidence before a court. The ecclesiastical courts had jurisdiction over wills of personalty. Probate of such wills, against the world, and once for all, could be made in them. If the will was of personalty and realty, the ecclesiastical court could probate it, but the probate was not noticed by the common law courts in respect to the realty. If the devisee was in possession, he could not maintain ejectment against the heir and thus establish his title under the will. To obviate this dilemma courts of chancery entertained a bill in favor of such devisee against the heir to establish the will and title thereunder. This was in the nature of a bill to quiet title. 3 Pom. Eq. s. 1158 and note 3; Adams. Eq. 6th Am. ed. with Sharswood's notes, 248, 249 and notes; Buchanan v. Matlock, 8 Hum. 390, 47 Am. Dec. 622; Harris v. Tisereau, 52 Ga. 153, 21 Am. Rep. 242.

There are cases where chancery formerly exercised jurisdiction to relieve against a will fraudulently obtained. But since the decision of Kenrick v. Bransby, 3 Brown Ch. 358, and Webb v. Cleverden, 2 Atk. 424, it seems to be considered as settled in England, that equity will not set aside a will for fraud and imposition. The reason assigned, is where personal estate is disposed of by a fraudulent will relief may be had in the ecclesiastical court; and at law, on a devise of real property. Bennet v. Vade, 2 Atk. 324; 3 Atk. 17; Jones v. Jones, 3 Meriv. 171. In Gaines v. Chew, 2 HOW 619, 11 L.Ed. 402, Justice McLean on this subject said:

"In cases of fraud, equity has a concurrent jurisdiction with the court of law, but in regard to a will charged to have been obtained through fraud, this rule does not hold. It may be difficult to assign any very satisfactory reason for this exception. That exclusive jurisdiction over the probate of wills is vested in another tribunal, is the only one that can be given."

Kieley v. McGlynn, 21 Wall. 503; 3 Pom. Eq. ss. 913, 914. There are not many English cases bearing directly upon the question of the jurisdiction of chancery to set up a suppressed, spoliated or destroyed will. Haines v. Haines, 2 Vern. 441, was decided in 1702. That case was this: The uncle having devised his real estate, part to the orator and part to other relatives, and disinherited the heir at law; at the funeral of the uncle, a younger brother of the heir at law, snatched the will out of the hands of the executor and tore it into many small pieces, and most of them, particularly such part wherein was the devise of the land, were picked up and stitched together again. The bill was to have the will established; and it was decreed that the devisees should hold and enjoy against the heir, and he to convey to the devisees, although no direct proof was made that the heir directed the tearing of the will. The report of the case does not show that it was argued, and no reasons are given by the court for its judgment. This case is quite analagous to the class of cases before suggested in which the devisee in possession could maintain a bill against the heir at law to set up the will to quiet his title. Hampden v. Hampden, 3 Bro. P.C. 550, was first heard and decreed by the master of the rolls in December, 1708, then affirmed by the lord chancellor on appeal, and afterwards by the house of lords in 1723. In Dalston v. Coatsworth, 1 P. Wms. 731, Hampden v. Hampden is stated thus: The orator claimed as devisee under the will of the defendant's father; by proof it appeared there was such a will, though no exact account was given of its contents; but inasmuch as the court was satisfied the defendant had suppressed the will, and for that, though no exact proof was made of its contents, the defendant might clear this by producing the will; therefore it was decreed that the orator, the devisee, should hold and enjoy until the defendant produced the will and further order. In 1719 was decided in chancery, the...