Raleigh v. District Court of First Judicial Dist.
| Decision Date | 16 July 1900 |
| Citation | 61 P. 991,24 Mont. 306 |
| Parties | RALEIGH v. DISTRICT COURT OF FIRST JUDICIAL DISTRICT. |
| Court | Montana Supreme Court |
Application in the supreme court by Medora T. Raleigh for writ of mandamus against the district court of the First judicial district to compel it to restore to its files a second contest to the probate of a will. Writ granted.
T. J Walsh, Sanders & Sanders, and Massena Bullard, for plaintiff.
Clayberg & Gunn, H. G. McIntire, and H. S. Hepner, for respondent.
This is an application for a writ of mandate to the district court of Lewis and Clarke county, commanding it, among other things in substance, to reinstate and entertain jurisdiction of a contest instituted by the plaintiff on the 5th day of May 1900, of the alleged will of one Albert G. Clarke, deceased. An alternative writ was issued, and the court, through its judges, showed cause by answers. The petition and answers disclosed these facts: On the 10th day of January, 1900, the Honorable Sidney H. McIntire, one of the judges of the district court of Lewis and Clarke county, appointed the 23d day of January, 1900, as the time for the hearing of a petition praying for the probate of the alleged will, and of two alleged codicils thereto (one bearing date the 16th day of January, 1899, and the other having been made on the 27th day of June of that year), of Clarke, deceased. On the day appointed for the hearing the plaintiff in the present proceeding appeared and filed the statement of her grounds of opposition to the probate of the purported will, in so far as the codicil of January 16, 1899, was concerned; alleging that such codicil was no part of said will, the testator having been induced to make the codicil by the fraud and undue influence of certain devisers and legatees. The petitioners for the probate of the will traversed the averments of the contestant touching the fraud and undue influence, and also pleaded matter in avoidance. The contestant, by reply, joined issue on the new matter. On the 2d day of May, 1900, the contest came on for hearing before the court sitting with a jury, whereupon the proponents of the will objected to the introduction of evidence and to the court's proceeding further in the cause, and moved that the grounds of opposition be overruled, for the reason that the execution of the second codicil was a republication of the original will as modified by the codicil of January 16, 1899, and because the grounds of opposition were confined solely to the first codicil; there being no allegation that the testator was of unsound mind at the time of the execution of the last codicil, or that he was induced to make it by fraud, duress, or undue influence. Before the submission of the motion the contestant offered to file and serve amended grounds of opposition, alleging that at the time of the making of each of the codicils the decedent was not free from fraud or undue influence, but, on the contrary, that certain of the legatees and devisers had exercised, and did then exercise, over him, undue influence, and practiced fraud upon him, whereby he was induced to make the codicil dated January 16th, and also the later one of June 27th. The proponents objected to the allowance of the amended statement of grounds of opposition to the will, for the reason that the proposed amended protest set forth a new and different cause of action from that originally filed, which objection was sustained on the 4th day of May. On the same day the objection theretofore interposed to the reception of any evidence in support of the allegations of the contest and the motion to overrule the contest were, respectively, sustained and granted, and the contest was dismissed. The court then adjourned the hearing of the petition to prove the will to the 5th day of May, at the hour of 2 o'clock in the afternoon. On that day, and before the hour appointed, the contestant filed a duly-verified statement of her grounds of opposition to the probate of the will, the statement setting up the same objections that were contained in the amended statement of opposition offered to be filed on the 2d day of May. At the hour of 2 o'clock on the 5th day of May the proponents of the will moved to strike from the files the statement of contest. On May 26th the court granted the motion, and refused to proceed further with the contest; the court basing its action upon the supposed fact that the contestant had, at the time originally appointed for the hearing of the petition to prove the will, filed her written opposition to the probate of the will, assailing the first codicil only. The court held that one contest had already been filed and disposed of upon law points, and that the statute will not permit successive contests before probate. After the court, through Judge McIntire, had stricken the grounds of opposition from the files, the matter of hearing proof of the execution of the alleged will and codicils was, upon motion of the contestant, transferred by Judge McIntire to the other department of the district court, presided over by the Honorable Henry C. Smith as judge, with the request that Judge Smith act in the place of Judge McIntire in hearing the proof touching the execution of the will and codicils. Since the transfer to Judge Smith's department, no hearing has been asked for or had. Upon the foregoing facts the defendant moves this court to quash the alternative writ of mandate and dismiss the proceeding, for the reason that neither the petition nor alternative writ states facts sufficient to authorize the granting of the peremptory mandamus, or any relief whatever. The plaintiff, on the other hand, moves the court to grant a peremptory writ of mandate herein, notwithstanding the answers.
Two questions are presented: (1) Did the plaintiff have the right to file written grounds of opposition to the probate of the will after the dismissal of the first contest, and subsequently to the day originally appointed for hearing the petition for the probate of the will, but at the time to which the hearing was postponed? (2) Is mandamus the proper remedy? These two questions, only, are necessarily involved. Whether or not the court erred in refusing to permit the plaintiff to amend her grounds of contest, and whether or not the court was right in dismissing the first formal contest, we need not inquire. Nor is it essential that we consider the scope or effect of that part of section 2 of article 8 of the constitution of Montana providing that the supreme court "shall have a general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by law." This provision was touched upon in State v. Second Judicial Dist. Ct., 22 Mont. 220, 56 P. 219; and provisions resembling it have been considered in Vine v. Jones (S. D.) 82 N.W. 82; State v. Johnson (Wis.) 79 N.W. 1081; State v. Judge, 31 La. Ann. 794; Railroad Co. v. Judge, 44 Mich. 479, 7 N.W. 65; City of Detroit v. Judge, 79 Mich. 384, 44 N.W. 622; and Ex prate Walker, 54 Ala. 577. With regard to the doctrines announced in these cases, which we have cited for convenient reference, no opinion is expressed.
1. The court held that the first contest failed to state any ground of opposition to the will, and therefore dismissed it. Before the hearing of the petition the plaintiff caused to be filed the statement of the new grounds of opposition to the will. This the court refused to consider, and struck from the files, for the reason that the plaintiff had already attempted to maintain a contest which had been disposed of upon law points; the statute not permitting successive contests before probate. It is to be observed that the first attempted contest was dismissed because it failed utterly to state any ground of opposition to the probate of the will and that the second contest was dismissed because there had already been a contest instituted against the will. Without commenting upon this seeming inconsistency, it is enough to say that the institution and dismissal of the first intended contest did not deprive the plaintiff of the right to commence and maintain a subsequent contest based upon other grounds. Neither the common law nor the statute recognizes the doctrine applied by the court in striking from the files the second statement of contest. In this court, counsel for the defendant argue that, because the plaintiff failed to institute the second contest at the time originally appointed for the hearing of the petition for probate, the court was correct in striking it from the files. Their contention is that one desiring to contest a will before probate must, at the time appointed for the hearing, file his statement of the grounds of opposition, and that a contest instituted thereafter, even though it be at the time to which the hearing was postponed, is too late. In our opinion, such is not the interpretation of those sections of articles 1 and 2, c. 2, tit. 12, pt. 3, of the Code of Civil Procedure, pointing...
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