Medill v. Snyder

• Decision Date: 10 June 1905
• Docket Number: 14,177
• Citation: 81 P. 216,71 Kan. 590
• Parties: SHERMAN MEDILL v. E. W. SNYDER, as Administrator, etc
• Court: Kansas Supreme Court

81 P. 216

71 Kan. 590

SHERMAN MEDILL v. E. W. SNYDER, as Administrator, etc

No. 14,177

Supreme Court of Kansas

June 10, 1905

Decided January, 1905.

Error from Douglas district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

WILLS--Contest of Probate--Limitation of Action. The time limited by the statute of wills for bringing a suit in the district court to contest a will is not extended by section 23 of the code of civil procedure (Gen. Stat. 1901, sec. 4451), providing that if any action be commenced within due time and judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.

George J. Barker, Dawes & Rutherford, and William Dale, for plaintiff in error.

Atwood & Hooper, Bishop & Mitchell, and James A. Reed, for defendant in error.

BURCH J., WILLIAM R. SMITH, GREENE, MASON, CLARK A. SMITH, JJ., concurring. JOHNSTON, C. J., dissenting. CUNNINGHAM, J., not sitting.

OPINION

BURCH, J.

The plaintiff in error brought a suit in due season to contest a probated will affecting both real and personal property, and then voluntarily dismissed it. After the expiration of two years from the probating of the will, but within one year from the dismissal of the first suit, he commenced another against the same parties and for the same relief as before. A demurrer was sustained to the petition, on the ground that the right of action was barred because of the expiration of the time limited by the statute of wills within which will contests may be initiated. The question for decision is whether the right to maintain the second suit is preserved by section 23 of the general statute of limitations, contained in the code of civil procedure, which reads as follows:

"If any action be commenced within due time and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure." (Gen. Stat. 1901, § 4451.)

Material portions of the statute of wills (Gen. Stat. 1901, ch. 117) are as follow:

"SEC. 15. If it shall appear that such will was duly attested and executed, and that the testator at the time of executing the same was of full age and sound mind and memory, and not under any restraint, the court shall admit the will to probate."

"SEC. 19. If no person interested shall within two years after probate appear and contest the validity of the will, the probate shall be forever binding, saving, however, to persons under legal disability the like period after the disability is removed.

"SEC. 20. The mode of contesting a will shall be by civil action in the district court of the county in which the will was admitted to probate, which action may be brought at any time within two years after the probate of the will, and not afterward, by any person interested in the will or estate of the deceased.

"SEC. 21. The order of the probate court shall be prima facie evidence on the trial of such action of the due attestation, execution and validity of the will.

"SEC. 22. A certified copy of the testimony of such of the witnesses examined upon the original probate as are out of the jurisdiction of the court, dead, or have become incompetent since the probate, shall be admitted in evidence upon such trial.

"SEC. 23. The rights of persons under legal disability shall not be concluded by the judgment in such action, but any such person may within two years after such disability is removed contest such will in the manner hereinbefore provided."

"SEC. 29. No will shall be effectual to pass real or personal estate unless it shall have been duly admitted to probate or recorded as provided in this act."

It is a rule of interpretation that general statutes of limitation, embodied in the codes of civil procedure ordinarily relate to the prosecution of actions generally, and the enforcement of the remedies that such codes prescribe and regulate; and that special statutes usually must be literally followed in respect to the time conditions that they impose. (Hill v. Supervisors, 119 N.Y. 344, 23 N.E. 921; Beebe v. Doster, 36 Kan. 666, 14 P. 150; Cartwright v. Korman, 45 id. 515, 26 P. 48.)

If the statute of wills be considered in the light of a statute of limitations this rule applies. It is a special enactment, complete in itself, and apparently designates the only exception intended to be allowed. The purpose of the law is to protect devisees, legatees, executors and trustees in their property rights, to foil efforts on the part of designing persons to foment annoying and embarrassing litigation, and generally to prevent the questioning of wills after time has removed witnesses and obscured the circumstances of their execution. Therefore, phraseology of the most imperative and uncompromising kind is employed. As often as the matter of contest is referred to the two-year limitation is attached, and the intention is made as clear as possible that there shall be no extension of time in which to disturb the probate of a will except in the single case twice expressly provided for.

But the statute of wills is not a mere statute of limitations. It grants to a court vested with ordinary law and equity jurisdiction the right to adjudicate upon the validity of wills of personalty--a power which, at common law, was altogether denied to such a tribunal, and vested solely in the ecclesiastical courts. It further authorizes a court endowed with ordinary law and equity powers to hear controversies and render judgments respecting wills of realty that were wholly unknown at common law, viz., controversies and judgments establishing the status of such wills.

The common law respecting these matters, and the rights of parties and the jurisdiction of courts under it, is described by the supreme court of California as follows:

"In England, the probate of wills of personal estate belongs to the ecclesiastical courts. No probate of a will relating to real estate is there necessary. The real estate, upon the death of the party seized, passes immediately to the devisee under the will, if there be one; or if there be no will, to the heir at law. The person who thus becomes entitled takes possession. If one person claims to be the owner under a will, and another denies the validity of the will and claims to be the owner as heir at law, an action of ejectment is brought against the party who may be in possession by the adverse claimant; and on the trial of such an action, the validity of the will is contested, and evidence may be given by the respective parties as to the capacity of the testator to make a will, or as to any fraud practiced upon him, or as to the actual execution of it, or as to any other circumstances affecting its character as a valid devise of the real estate in dispute. The decision upon the validity of the will in such action becomes res judicata, and is binding and conclusive upon the parties to that action and upon any person who may subsequently acquire the title from either of those parties; but the decision has no effect upon other parties, and does not settle what may be called the status or character of the will, leaving it subject to be enforced as a valid will, or defeated as invalid, whenever other parties may have a contest depending upon it. A probate of a will of personal property, on the contrary, is a judicial determination of the character of the will itself. It does not necessarily or ordinarily arise from any controversy between adverse claimants, but is necessary in order to authorize a disposition of the personal estate in pursuance of its provisions. In case of any controversy between adverse claimants of the personal estate, the probate is given in evidence and is binding upon the parties, who are not at liberty to introduce any other evidence as to the validity of the will." (State of California v. McGlynn, 20 Cal. 233, 265, 81 Am. Dec. 118.)

Even although the ecclesiastical courts could determine the validity of wills of personal property, and even although the law courts could incidentally determine for some purposes the validity of wills of real estate, no court of law or equity could, under the common law, entertain any such suit or render any such judgment as is contemplated by the statute of wills of this state.

Therefore, the jurisdiction of the district court under the wills act is an innovation of purely statutory origin. Likewise, the right of a party to invoke such jurisdiction is purely a statutory creation. One of the conditions attached to the exercise of the jurisdiction thus provided for, and the right to call it into exercise, is that proceedings be instituted within two years. Time is of the essence of the power and the right, and lapse of time operates to extinguish both, rather than as a mere bar to a remedy. (Rodman v. Railway Co., 65 Kan. 645, 70 P. 642, 59 L. R. A. 704.)

In the opinions rendered in Mears v. Mears, 15 Ohio St. 90 McArthur v. Scott, 113 U.S. 340, 5 S.Ct. 652, 28 L.Ed. 1015, and other cases, it was said that the method of probating wills in the probate courts of this country corresponds nearly to the probate in England in common form, and that the contesting of wills in courts of chancery or courts of like jurisdiction is analogous to the English probate in solemn form. From such statements it is...