London v. Wilmington & Weldon R.R. Co.

• Decision Date: 28 February 1883
• Court: North Carolina Supreme Court
• Parties: JOHN LONDON, Adm'r, v. WILMINGTON & WELDON RAILROAD COMPANY.

88 N.C. 584

JOHN LONDON, Adm'r,

v.WILMINGTON & WELDON RAILROAD COMPANY.

Supreme Court of North Carolina.

February Term, 1883.

CIVIL ACTION tried at Fall Term, 1882, of NEW HANOVER Superior Court, before MacRae, J.

Upon the death of Eli W. Hall in the year 1865, several scripts purporting to contain his will, with certain successive codicils, all without date and all duly attested, except the last, in which he designated Edward D. Hall and John Dawson executors, were offered by them for probate in the county court of New Hanover, the residence of the deceased, and, upon the evidence of one of the subscribing witnesses to the original instrument and of another to the last attested codicil, which revokes all preceding it, were declared and adjudged to be the “last will and testament of the said Eli W. Hall.”

The deceased at his death owned eighteen shares of the capital stock of the defendant corporation, which the said Edward, acting as executor, caused to be transferred; to-wit, sixteen shares on November 28, 1868, and the other two in May, 1872, to different purchasers to whom the same had been sold. The tranfer was affected, under the charter and according to the by-laws of the company, by the surrender of the first certificate of stock and the issue of new to the assignee, and the making the proper entries of the transfer upon its books.

In the month of April, 1881, John London, the plaintiff, produced before the probate judge the last attested and repealing script of those declared to constitute the will of the testator, and, under regular proceedings for an ex-parte probate, the same was adjudged, upon the testimony of T. D. Haigh, a subscribing witness thereto, proving its execution in due form of law, to be ““the last will and testament” of the said testator, and sufficient in law to pass his real and personal estate. Thereupon, letters of administration, with the will annexed, were issued to the plaintiff.

The present action was commenced on May 13, 1881, to compel the defendant to issue to the plaintiff, as administrator, a certificate for 18 shares of the stock, alleged to have been thus wrongfully and without legal authority transferred to others, and to account for all dividends and profits thereon declared and paid since the testator's death; or, if disabled by its charter from making a further increase of its capital stock, to pay over to the plaintiff the value of the stock and accruing profits or interest thereon.

The defendant insists that the transfer of the stock was rightfully made under the direction and authority of Edward D. Hall, to whom, and his associate, letters testamentary had been duly and regularly issued by a court of competent jurisdiction, and that it is not in any way responsible to the plaintiff's demand.

The court held that the defendant was protected, in transferring the stock, by the adjudication in the county court and the award of letters testamentary, and that the action could not be maintained. Judgment was accordingly rendered against the plaintiff for costs, and he appeals.

Messrs. MacRae & Strange, for plaintiff .

Messrs. George Davis and Stedman & Latimer, for defendant .

SMITH, C. J., after stating the above.

The only question arising upon the appeal is whether the granting of the letters testamentary is void, so as to afford no sanction to the defendant's act in transferring the stock, and to leave the company exposed to the action of the party to whom the letters of administration have since been granted, without any direct revocation of the former adjudication upon the same instrument.

The argument on either side of the proposition has been full and exhaustive, and, with the numerous references to decided cases and the works of elementary writers, has greatly aided us in arriving at a satisfactory conclusion.

The general rule is well settled that the judgment of the probate court, in which is vested exclusive jurisdiction to pass on wills of personalty (and in this state by statute of realty also) and grant letters testamentary or of administration, is conclusive of the right determined, and is not exposed to impeachment collaterally in another court where the effect of the action is to be considered.

A probate in common form, unrevoked, is conclusive in courts of law and equity as to the appointment of an executor and the validity and contents of a will; and it is not allowable in an action to show that another was appointed executor. This is the principle announced in the elementary books. Williams' Ex'rs, 339; Toller, 76.

“The probate,” says BULLER, J., “is conclusive till it be repealed, and no court of common law can admit evidence to impeach it”; and, referring to the analogy attempted to be drawn from the case of a grant of letters of administration upon the estate of a living person supposed to be dead, he adds, “that in such case the ecclesiastical court has no jurisdiction, and the probate can have no effect. The distinction in this respect is this: if they, the courts, have jurisdiction, their sentence, so long as it stands unrepealed, shall avail in all other places; but where they have no jurisdiction, their whole proceedings are a nullity.” Allen v. Dundass, 3 D. & E., 125.

“Whether there is a will, and who is the executor thereof,” is the remark of HENDERSON, J., “are matters of ecclesiastical cognizance, and consequently the decision of the ecclesiastical courts on the subject is conclusive. They adjudicate that this is the will of A, and that B is the executor thereof, and when in other courts it is necessary that B should sustain the character of executor, that adjudication is conclusive”; and he adds, that the letters testamentary are a testimonial given by the court that the party has been adjudged to be executor, and further, that it is needless to append a copy of the will, as it can answer no purpose. Granberry v. Mhoon, 1 Dev., 456. The principle is affirmed by the same judge in Ro. Nav. Co. v. Green, 3 Dev., 434.

To the same effect is the language of PEARSON, J., in commenting on the difference between an ex-parte probate of a deed for registration and of a will. “It would seem,” he says, “that where a court has exclusive jurisdiction and a case is properly constituted before it, its action must be conclusive until reversed. It is otherwise where there is a want of jurisdiction; or where it appears on the face of the proceeding that the case was not properly constituted before it, as if process was not served on the party whose rights are to be affected by the judgment or decree.” Barwick v. Wood, 3 Jones, 306.

The general principle being established, the next inquiry is as to the cases in which the probate court acts without possessing jurisdiction in the particular case; and the numerous adjudications of this court are entirely in harmony with the rule laid down by reliable text writers.

It is an unwarranted assumption of jurisdiction when the probate court...