Saunders v. Link

• Decision Date: 21 November 1912
• Citation: 114 Va. 285,76 S.E. 327
• Parties: SAUNDERS. v. LINK et al.
• Court: Virginia Supreme Court

76 S.E. 327

114 Va. 285

SAUNDERS.

v.LINK et al.

Supreme Court of Appeals of Virginia.

Nov. 21, 1912.

1. Wills (§ 421^*) — Probate—oCnclusiveness of Judgment.

Acts 1902-1904, c. 255 (Code 1904, § 2039a), as amended by Act March 12, 1904 (Acts 1904, c. 108 [Code 1904, § 2533]), provides that the circuit and corporation courts, and the clerks of said circuit and corporation courts, shall have jurisdiction of the probate of wills. Section 2538 provides that one offering to a circuit court or clerk, or a corporation court, a will for probate may obtain from the clerk process requiring any person interested to appear at the next term of court, or before such clerk, to show cause; and section 2539 empowers such courts to cause all persons interested in the probate to be summoned to appear. Section 2544, which was not changed by the amendment, provides that a court may, without summoning any party, proceed to probate, and admit or reject a will; and that one who is not a party may, within two years, proceed by bill in equity to impeach or establish the will, and if no bill be filed within that time the order shall be forever binding. Section 2G39a authorizes clerks of any circuit or corporation court to admit wills to probate as the court could do if in session, requires him to enter all orders in an order book, and permits any interested person, within a year after order entered, to appeal therefrom, and the court shall determine the matter as though presented to it in the first instance. Held, that the word "court, " in section 2544, did not include the "clerk" of the circuit court, so as to give him the powers conferred upon a court thereby, so that, where a will was admitted to probate by the clerk of the circuit court without appeal as provided, the order admitting it was conclusive on collateral attack.

[Ed. Note.—For other cases, see Wills, Cent Dig. §§ 904-910; Dec. Dig. § 421.*]

2. Statutes (§ 176*)— Construction—Language.

It is not the province of the court to rewrite a statute which is unambiguous and within the legislative authority.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 255; Dec. Dig. § 176.*]

3. Judgment (§ 640*)—Conclusiveness— Probate Court.

The sentence of a probate court having jurisdiction of the subject-matter is a judgment in rem and binds every one affected, and not merely parties.

[Ed. Note.—For other cases, see Judgment, Cent Dig. § 1154; Dec. Dig. § 640.*]

4. Judgment (§ 470*)—Collateral Attack.

The judgment of a court of general jurisdiction, acting within its jurisdiction, is presumed to be correct and cannot be collaterally impeached, unless want of jurisdiction appears on the face of the proceedings.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 907; Dec. Dig. § 470.*]

Appeal from Circuit Court, Giles County.

Suit by Maggie Link and others against C. A. Saunders. From a decree for complainants, defendant appeals. Reversed

W. B. Snidow, of Pearisburg, for appellant.

Williams & Farrier, of Pearisburg, and Jackson & Henson, of Salem, for appellees.

WHITTLE, J. William A. Huffman died in the year 1908, survived by a widow, and leaving as his heirs at law adult children and infant grandchildren. Prior to his marriage, Huffman made a will, giving his entire estate to Mary F. Saunders, whom he subsequently married, and appointed her his executrix. On April 14, 1908, the will was admitted to probate by the clerk of the circuit court of Giles county in his office, and the widow qualified as executrix.

In September, 1909, Maggie Link, one of the adult children, brought a suit in equity inthe circuit court of said county against the widow and heirs, in which she set out the foregoing facts, and insisted that the subsequent marriage of the testator absolutely revoked the will, under Va. Code 1904, § 2517, and prayed that it might be treated as a nullity, and that it be adjudged that Huffman died intestate. The bill, furthermore, prayed that a deed to the land in controversy from the widow to C. A. Saunders be set aside; that dower be assigned to the widow; and that the residue of the land be partitioned among the heirs and for general relief.

C. A. Saunders demurred to the bill. The controlling ground of demurrer is that, the will having been admitted to probate by the clerk, and no appeal having been taken from the order, as provided by statute, the sentence was final and conclusive and was not amenable to collateral attack, and that consequently the circuit court was without jurisdiction to maintain the suit.

The court overruled the demurrer and directed an issue to be tried to ascertain whether any, and, if any, how much, of the paper in question was the will of the decedent. Afterwards, by a vacation decree, the court set aside so much of the former decree as directed an issue devisavit vel non, and adjudged that the marriage of the testator operated an absolute revocation of the will; that the order of the clerk admitting the same to probate did not give the will any validity whatever, and granted the relief prayed for in the bill. From that decree this appeal was allowed.

The Virginia Constitution 1902, art. 6, § 101 (Code 1904, p. ccxxxv), ordains that "the General Assembly shall have power to confer upon the clerks of the several circuit courts jurisdiction, to be exercised in the manner and under the regulations to be prescribed by law, in the matter of admission of wills to probate, and of the appointment and qualification of guardians, personal representatives, curators, appraisers and committees of the estates of persons who have been adjudged insane or convicted of felony, and in the matter of the substitution of trustees."

The Legislature, in accordance with the above provision, by act approved May 15, 1903, conferred upon clerks of circuit courts, among other powers, jurisdiction to admit wills to probate. Acts 1902-04, p. 386 (Code 1904, § 2639a). This act was so amended by an act approved March 12, 1904, as to extend this jurisdiction to clerks of corporation courts, except that in the city of Richmond the jurisdiction was vested in the clerk of the chancery court. Acts 1904, p. 205 (Code 1904, § 2533). The amended act was declared unconstitutional by this court, in so far as it attempted to confer probate jurisdiction on the clerk of the chancery court of the city of Richmond; such clerk not being either within the terms or intendment of

section 101 of the Constitution. That phase of the case involved the constitutionality of the act only with respect to the clerk of the chancery court, and the decision was confined to the precise question in issue. Mc-Curdy v. Smith, 107 Va. 757, 60 S. E. 78.

The court, at page 761 of 107 Va., at page 80 of 60 S. E., gives the following reason for the constitutional provision: "This jurisdiction, outside the cities, was formerly lodged in the county courts, which held monthly terms in each county of the state; but, inasmuch as those courts were to be abolished, and the circuit courts only convened once in three or four months, provision had to be made for the convenient and speedy dispatch of those important functions."

The amended act referred to was carried into section 2639a, Va. Code 1904. in addition to this specific act passed expressly to give effect to section 101, certain sections of the Code with respect to the probate of wills were so amended as to conform to changed conditions. Thus section 2533 declares that the circuit and corporation courts, "and the clerks of the said circuit and corporation courts, shall have jurisdiction of the probate of wills according to the following rules." Then follows the bestowal of territorial jurisdiction upon these tribunals, and the section concludes with the above-mentioned proviso as to the city of Richmond.

Section 2538 prescribes that "a person offering or intending to offer to a circuit court, or to the clerk thereof, or to a corporation court a will for probate, may obtain from the clerk of such court process directed to the proper officer of any county or corporation, requiring him to summon any person interested in such probate to appear at the next term of such court, or before such clerk, on a day named in such summons, to show cause why the said will should not be admitted to record."

And section 2539 empowers "a circuit or corporation court to which a will is offered for probate, or into which the question of probate is removed by appeal or otherwise, " to cause all persons interested in the probate to be summoned to appear on a certain day.

Having thus drawn the distinction between a "court" and a "clerk" in the two preceding sections, section 2544, which remaim unchanged, declares that "a court may, however, without summoning any party, proceed to probate, and admit the will to record or reject the same. After a sentence or order under this section, a person interested, who was not a party to the proceeding, may, within two years, 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 ordered for probate, be the will of the decedent. If no such bill be filed within that time, thesentence or order shall be forever binding." Section 2545 contains a saving in favor of infants and nonresidents.

Be it observed that the right to impeach or establish a will applies expressly to an ex parte probate proceeding by "a court * * * under this section, " and operates in favor of "a person interested, who was not a party to the proceeding." If this section had been intended to include a "clerk, " or to apply to an ex parte probate by a clerk, that officer would have been mentioned eo nomine, as in section 2538. But a still more conclusive reason against such contention is furnished by the fact that the Legislature had, as remarked, by independent enactment (Va. Code 1904, § 2639a), conferred upon clerks special jurisdiction of the ex parte probate of wills,...