In re Will of Bentley
| Decision Date | 10 June 1940 |
| Docket Number | Record No. 2226. |
| Citation | 175 Va. 456 |
| Parties | IN RE WILL OF SUSAN BENTLEY. |
| Court | Virginia Supreme Court |
1. WILLS — Probate and Contest — Limitation of Time upon Probate. — Except for section 5263 of the Code of 1936, protecting the title of a bona fide purchaser for value from the heir of a decedent unless a will is probated within one year of the death of the testator, there is no statute in Virginia placing any limitation of time upon the probate of a will.
2. WILLS — Probate and Contest — Conclusiveness of Judgment Admitting Paper to Probate. — The judgment of a probate court of competent jurisdiction admitting a paper to probate is in the nature of a judgment in rem, and as long as it remains in force binds conclusively all parties and all other courts.
3. WILLS — Probate and Contest — Collateral Attack on Judgment of Probate. — The judgment of a probate court of competent jurisdiction admitting a paper to probate cannot be collaterally attacked and can only be assailed in the manner provided by statute.
4. WILLS — Probate and Contest — Effect of Judgment of Probate on Probate of Later Will. — The conclusiveness of the judgment of probate of an earlier will does not preclude the probate of a later will for the reason that the probate of the later will is not an attack on the judgment of probate of the earlier will.
5. WILLS — Form — Several Different Papers of Different Dates — Time of Probate. — A last will may consist of several different testamentary papers of different dates and it is not indispensable that they should be probated at the same time.
6. WILLS — Probate and Contest — Propounding Second Will. — If after the probate of an earlier will a later will is found which contains an express clause of revocation of former wills, or contains a disposition of the estate incompatible with the provisions of the former, or which from its general character may be inferred to be an entire new instrument, intended to supersede the former, the court of probate should receive and admit it to probate, leaving it to have such effect as the law would necessarily attach to it, and before probating the second will it is not necessary to file a bill in chancery under the statute to set aside the probate of the former will.
7. WILLS — Probate and Contest — Application to Probate Later Will Not a Contest. — An application to probate a later will whose provisions are inconsistent with those of a will previously probated is not in effect a contest of an earlier will, within the meaning of section 5259 of the Code of 1936, and may be heard after the expiration of the statutory period for contesting the first will.
8. WILLS — Probate and Contest — Questions Settled by Order of Probate. — The order of probate of a will settles all questions as to the formality of its execution and the capacity of the testator.
9. WILLS — Probate and Contest — Effect of Probate of Second Will. — The probate of a subsequent will does not attack the due execution of a will previously admitted to probate or the testamentary capacity of the testator. It merely establishes that by a testamentary writing of later date, likewise properly executed by a person of testamentary capacity, the testator has made dispositions of his property which are inconsistent with those found in the will previously probated.
10. WILLS — Probate and Contest — Equity Suit to Contest Will Is Direct Attack on Judgment of Probate. — A suit in equity to contest a will which has been admitted to probate is a direct attack on the judgment of probate. In such a proceeding, if the court ascertains that the will previously admitted to probate is not the true last will and testament of the testator, the judgment of probate is annulled and set aside.
11. WILLS — Probate and Contest — Section 5259 of the Code of 1936 — Purpose of Revision of 1919. — The purpose of the revision of 1919, which added the third sentence in section 5259 of the Code of 1936, pertaining to the probate of wills ex parte, was to conform section 5259 to section 5257, pertaining to probates inter partes, and to permit the jury, in a contest under either section, to pass upon all testamentary papers of the testator, whether admitted to probate or not.
12. WILLS — Probate and Contest — Refusal to Consider Probate of Second Will — Case at Bar. — In the instant case, an appeal from an order refusing the probate of a purported will, soon after testatrix's death a paper writing was presented to the lower court and in an ex parte proceeding was duly proved, established and admitted to probate. Nearly five years later another paper, dated subsequently to that of the paper already probated, was offered for probate by the person named therein as executor. The lower court refused to consider the probate of this purported subsequent will, for the reason that no bill or other proceedings had been filed, within two years (that being the time limit fixed by statute at the time the first paper was probated) from the order of probate, and the order admitting the first will to probate was forever binding, as stated in section 5259 of the Code of 1936.
Held: Error, since the offer to probate the second will was not a contest, within the meaning of section 5259 of the Code of 1936.
Appeal from a decree of the Chancery Court of the city of Richmond. Hon. William A. Moncure, judge presiding.
The opinion states the case.
J. Thomas Hewin, Sr., for the appellants.
Thomas I. Talley, for the appellees.
Susan Bentley, a resident of the city of Richmond, died on February 28, 1934. On April 3, 1934, a paper writing dated January 19, 1917, was presented to the court below and in an ex parte proceeding was duly proved, established and admitted to probate as and for her true last will and testament.
On July 7, 1939, J. Thomas Hewin presented to the court below and offered for probate as and for the true last will and testament of the deceased a paper writing dated February 7, 1922, in which he was named as executor. The proponent offered to prove the due execution of the instrument and moved the court that he be permitted to qualify as executor thereof.
The beneficiaries under the will theretofore admitted to probate opposed the probate of the purported will of February 7, 1922, and offered to prove that the testatrix at the time of the execution of the latter instrument was not of sound mind and was incapable of making a will.
The dispositions by the testatrix of her real and personal property under the first will are inconsistent with those in the subsequent will.
The lower court refused to consider the probate of the purported will of February 7, 1922, for the reasons thus stated in its order: "And no bill or other proceedings having been filed, within two years (that being the time limit fixed by statute existing 3rd April, 1934) from the order of probate and adjudication of April 3rd, 1934; and the Court being of opinion that the order of April 3, 1934, is forever binding as stated in Section 5259 Code of Virginia, doth refuse to consider the paper writing dated February 7th, 1922, and this day presented and offered for probate."
From this order J. Thomas Hewin, the executor named in the purported will of February 7, 1922, has appealed.
At the time the first will was probated, on April 3, 1934, Code, section 5259, provided, among other things, that after the probate of a will under sections 5249 or 5259, "a person interested, who was not a party to the proceeding, may proceed by bill in equity to impeach or establish the will, on which bill a trial by a jury shall be ordered to ascertain whether any, and if any, how much of what was so offered for probate, be the will of the decedent."
The section further provided that such bill should be filed within two years* from the date of the entry of the order of probate by the court, either in the exercise of its original jurisdiction or on appeal from the clerk, or from the date of the entry of the order of probate by the clerk when no such appeal is taken, and that "If no such bill be filed within that time, the sentence or order shall be forever binding." Code, section 5260, provides a saving for non-residents and persons under disabilities.
It will be observed that section 5259 in terms places a limitation on the time within which a suit in equity may be brought "to impeach or establish" a will. It places no limitation on the time within which a will may be probated.
Under Code, section 5263, the title of a bona fide purchaser for value of real estate from the heir of a decedent is protected against a devise of the lands by the decedent of which the purchaser had no notice, unless the will be probated within one year of the death of the testator.
Except for this latter section there is no statute in Virginia placing any limitation of time upon the probate of a will. Bliss Spencer, 125 Va. 36, 57, 99 S.E. 593, 5 A.L.R. 619.
2, 3 It is well settled in this State and elsewhere that the judgment of a probate court of competent jurisdiction admitting a paper to probate is in the nature of a judgment in rem, and as long as it remains in force binds conclusively all parties and all other courts. Culpeper Nat. Bank Morris, 168 Va. 379, 387, 388, 191 S.E. 764, and cases there cited; Freeman on Judgments, 5th Ed., Vol. II, section 812; 28 R.C.L., section 376, p. 375; 68 C.J., section 597, pp. 874, 875. Such a judgment of probate can not be collaterally attacked and can only be assailed in the manner provided by statute. West West's Ex'rs, 3 Rand. (24 Va.) 373, 386; Robinson Allen, 11 Gratt. (52 Va.) 785, 787; Norvell Lessueur, 33 Gratt. (74 Va.) 222; Avant Cook, 118 Va. 1, 4-6, 86 S.E. 903.
But it is equally well settled that the conclusiveness of the judgment of probate of an earlier will does not preclude the probate of a later will for the reason that, as we...
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