Schultz v. Schultz

• Decision Date: 08 September 1853
• Citation: 51 Va. 358
• Court: Virginia Supreme Court
• Parties: SCHULTZ v. SCHULTZ & als. SAME v. SAME.

51 Va. 358

SCHULTZ v. SCHULTZ & als.

SAME v. SAME.

Supreme Court of Appeals of Virginia.

September 8, 1853

1. The saving in the act of 1819, 1 Rev. Code, ch. 104, § 13, p 378, in relation to wills, in favor of persons out of the state, is not repealed by the act of March 8th, 1826, Sup Rev. Code, p. 260, in relation to the limitations of actions.

2. A devisee of a will may propound it for probat, and in so propounding it he becomes the representative of the will for the purpose of its probat, and of all persons similarly interested, though they are not made formal parties to the proceeding, and may have had no notice of its pendency; and this too whether they are sui juris, or laboring under infancy, coverture or other disability. And the same is the case if the propounder of the will be an executor or a legatee.

3. When a paper is propounded for probat to the proper court, by a devisee, and there is a sentence of the court fairly obtained and pronounced on the merits, excluding the paper from probat, such sentence of exclusion from probat is conclusively binding upon all claiming under the paper.

4. S died in 1830, and a paper purporting to be his will, dated in 1818, was admitted to probat in the County court of Wood, and his widow qualified as executrix. In 1845, another paper purporting to be the will of S dated in 1828, was propounded for probat in the County court of Wood by a devisee therein who lived out of the state and had not been within it until a short time before the paper was propounded for probat. The executrix of the first will appeared and contested the probat, and introduced in evidence the record of the probat of the first will. She objected that the County court had no jurisdiction to admit the second paper to probat, and therefore should not hear the evidence; but the court overruled her objection, and decided that the admission of the first paper did not preclude them from admitting the second; and that they would hear the evidence. At the next term of the court the evidence was heard, and the witnesses proved the execution of the paper; and stated that they believed the testator to be of sound and disposing mind and memory. But the court rejected the paper and refused to admit it to probat; not stating the grounds of their decision. Upon appeal to the Circuit court, that court affirmed the sentence, not stating the grounds of its decision in its judgment, though in a written opinion filed in the papers, it is put on the ground that the County court had no jurisdiction to admit the paper to probat until the probat of the first paper had been set aside. HELD:

1. That the County court had jurisdiction to admit the second paper to probat or reject it, at the time it was propounded for probat.

2. That the County court decided the case upon its merits, and its judgment is conclusive on the question unless reversed.

3. The Circuit court having affirmed the sentence of the County court, that sentence is still a judgment upon the merits against the paper, whatever may have been the reasons on which the judgment of the Circuit court was founded.

4. If the Circuit court intended to decide the case on the ground of a want of jurisdiction in the County court, it should have reversed the sentence of that court, and rendered a judgment overruling the motion to admit the paper to probat on the ground of want of jurisdiction.

5. The jurisdiction of a court of probat is not exhausted by the admission to probat of the testamentary papers passed upon at one time. If a codicil to the will admitted to probat be afterwards found, or a will supplemental to the first, or one which may consist with the first and has no clause of revocation, or a will without a clause of revocation, which though it conflicts in part, may consist in part, in all these cases the two papers constitute the testator's will, and the second may be admitted to probat upon a second motion, after the first has been admitted.

6. So if the second paper has a clause of revocation, or conflicts wholly with the first, or from the scheme of the second will it is apparent that it is intended as a complete disposition of the testator's property, the court of probat has jurisdiction to admit such second paper to probat, though the probat of the first paper is not annulled, but remains in full force.

Christian Schultz, late of the county of Wood, departed this life in May 1830; and at the June term of the County court of that county in the same year, a paper writing dated the 22d of May 1818, purporting to be his last will and testament, was produced in court, and admitted to probat as such last will and testament; and upon the motion of Nancy Schultz, widow of said deceased and one of the executrixes named in the will she was admitted to qualify as such executrix.

Some years afterwards; that is to say, on the 15th of September 1845, Michael Schultz produced in the same court another paper writing, dated the 6th of June 1828, purporting to be the last will and testament of the said Christian Schultz, and claiming to be a devisee under the provisions thereof, propounded the same for probat as such will. Nancy Schultz appeared in court and contested the probat of said paper, exhibiting the record of the probat of the former will and of her qualification as executrix under the same, and relying upon it as a bar to the probat of the newly produced paper, and to the introduction of proof of its due execution. The court however decided to hear the evidence, being of opinion that the probat of the paper of the 22d of May 1818 did not preclude them from hearing the evidence of the validity and due execution of the paper then produced, nor from admitting the same to record, provided the evidence so offered would authorize them so to do. And at the next term of the court, to which the cause was continued, after hearing the evidence, the court pronounced its sentence rejecting the paper of the 6th of June 1828, and refused to admit the same to probat as and for the last will and testament of the said Christian Schultz deceased. Afterwards, on the 30th March 1846, upon a supersedeas to the same from the Circuit court of Wood county, that court, for reasons set forth in a written opinion filed in the cause, affirmed the sentence of the County court. The reasons set forth in the opinion was, that the County court had no jurisdiction to admit the second will to probat until the probat of the first had been revoked by a proceeding in equity under the statute.

In November 1845, shortly after the sentence had been pronounced by the County court against the will of 1828, Michael Schultz, with others claiming to be interested under its provisions in the estate left by Christian Schultz, exhibited a bill in the Circuit court of Wood county, setting up the said paper writing as the true last will and testament of the said Christian, and alleging the probat of the paper of the 22d of May 1818 and the qualification of Mrs. Schultz as executrix under the same, and praying the court to decree a revocation of the will of 1818 and to establish that of 1828; or if the court thought the case within the provisions of the act upon the subject, to direct an issue to try which of said papers was the true last will and testament; and also praying a discovery from the said Nancy Schultz upon several subjects, and for general relief.

In March 1846, Mrs. Schultz demurred to the bill for multifariousness; also, because more than seven years had elapsed after the probat of the will of 1818 before the filing of the bill; and also because by the true construction of the will of 1828 filed with the bill, Matilda Schultz, the only child and devisee in that will, took an estate in fee in the whole property during her life time, and at her death the same descended to the demurrant, her mother Mrs. Schultz; and so the complainants had no interest in the subject in controversy. She also at the same time filed her answer to the bill, in which she sets up and relies upon the will of 1818 as the true last will and testament of Christian Schultz; and although she admits the paper of the 6th of June 1828 to be wholly in the handwriting of her said husband, she denies that it is a valid will. She alleges that at the time of writing the same the mind of the said Christian was greatly impaired, and that he did not in fact possess sufficient mind and memory to make a valid will. She refers to what she calls the " strange and inexplicable" codicil annexed to the will, as showing that he could not have been in his right mind when he wrote that paper, and states her expectation to prove the same thing by other evidence. She admits that the complainants bore to the said Christian Schultz the relation they state, and that they resided in the state of New York; though she says she had been informed one of the number had visited the state several times within the period of eight or nine years then last past; but she insists that the saving in the statute of wills in favor of nonresidents had been in effect repealed, and that the complainants were barred by the general limitation contained in the act from now calling in question the probat of the will of 1818. She also insists that the limitation over contained in the paper under which the complainants claimed, being made to depend on the dying of the said Maria Matilda Schultz unmarried and without children, was void because too remote; that the said Maria M. Schultz took the whole estate, absolutely, and that upon her death, (she having died unmarried and without children on the 17th of February 1839,) it descended upon her as the heir at law and sole devisee and legatee of her said daughter; and so that the complainants had no interest under or by...