Ouachita Baptist College v. Scott

• Decision Date: 23 October 1897
• Citation: 42 S.W. 536,64 Ark. 349
• Parties: OUACHITA BAPTIST COLLEGE v. SCOTT
• Court: Arkansas Supreme Court

42 S.W. 536

64 Ark. 349

OUACHITA BAPTIST COLLEGE v. SCOTT

Supreme Court of Arkansas

October 23, 1897

Appeal from Sevier Circuit Court, WILL P. FEAZEL, Judge.

Judgment reversed and cause remanded.

W. E Atkinson and Jesse B. Moore, for appellants.

W. S. & Farrar L. McCain, for appellees.

OPINION

BUNN C. J.

This is a proceeding to contest the will of Thomas N. Scott deceased, late of Little River county, who departed this life on the 27th of November, 1891, by Robert M. Scott, a brother, and other collateral kindred, who are the appellees here. The will gave all the testator's property to Thomas Penn, a son of Eva Penn, niece of the testator, and the Ouachita College, an institution of learning duly incorporated, and located at Arkadelphia, in this state; they being the appellants here. The ground upon which the contest of the will is made is the want of mental capacity in the testator to make a will at the time the will in question was made, which bears date June 24, 1890.

The will was probated in the common form; that is, by the taking of the depositions of the subscribing witnesses by the clerk, and filing the same with the will, and as the proof of the execution of the same, and the making by the court thereafter, in term time, of the probate orders, without having summoned any of the parties interested to appear at the probation to make objection thereto. The order of probation was made on the 20th January, 1892, and on the 11th of August next following the said contestants filed their affidavit before the clerk of said court, in vacation, under the provisions of the statutes contained in sections 1148 and 1149 of Sandels & Hill's Digest.

It is objected by the contestees that, as the contestants did not appear, and were not in fact parties to the probate proceedings in the probate court, they were improper parties appellant in the circuit court; in other words, could not appeal from the order of the probate court admitting the will to probation. It has been held by this court that a court of equity has no jurisdiction to hear and determine a contest of a will. Mitchell v. Rogers, 40 Ark. 91. It has also been held by this court that such a contest cannot be made by proceedings on a writ of certiorari, but that the only remedy is by appeal. Petty v. Ducker, 51 Ark. 281, 11 S.W. 2. It has also been determined by this court that the circuit court has no original jurisdiction now, as formerly, to try such a contest, since the constitution confers original and exclusive jurisdiction of wills, etc., upon the probate court. Dowell v. Tucker, 46 Ark. 438. It follows that such a contest, if made at all, must be made originally in the probate court, or else, when that cannot be done, on appeal from the probate order of the probate court to the circuit, accordingly as the will has been probated in the more solemn form or in the common form.

If the will has been probated in the more solemn form (that is, upon notice to all interested to appear in the probate court at the probation), then, of course, this particular question does not arise. If, however, as in the present case, the probation is in the common form, and parties interested have not been summoned to appear and make objection, then we think it but a fair and reasonable construction to put on the statute that parties interested may file the affidavit provided in the statute within the twelve months allowed, and thus make themselves parties to the probate proceedings for the purpose of taking an appeal from the order of probation to the circuit court, wherein, in such case, the real contest of the will may be made on the grounds set forth in their petition, which of course, will necessarily show their relationship to the deceased. This ruling is one of first impression in this court, but is in harmony with the suggestions contained in all of our more recent decisions, although these decisions contain mere suggestions or intimations on the subject, and nowhere decide the particular question. Petty v. Ducker supra; Hogane v. Hogane, 57 Ark. 508, 22 S.W. 167. Furthermore, since the...