Spencer v. Spencer

• Decision Date: 25 January 1905
• Citation: 79 P. 320,31 Mont. 631
• Parties: SPENCER v. SPENCER et al.
• Court: Montana Supreme Court

79 P. 320

31 Mont. 631

SPENCER v. SPENCER et al.

Supreme Court of Montana

January 25, 1905

Commissioners' Opinion. Appeal from District Court, Deer Lodge County Welling Napton, Judge.

Will contest by James R. Spencer against John C. Spencer and another. Judgment for plaintiff. Defendants appeal. Modified.

Ed Scharnikow and W. E. Carroll, for appellants.

O. J Saville, for respondent.

POORMAN C.

This is an appeal from a judgment and decree revoking the probate of a will, and from an order overruling a motion for a new trial.

James M. Spencer died in Deer Lodge county, Mont., October 12 1891, leaving surviving him his widow, Fanny Spencer, his only daughter, Jane Porter, and his two sons, John C. and James R. Spencer. Afterwards a paper bearing date September 22, 1891, and purporting to be the last will and testament of said James M. Spencer, was offered for probate; and on December 5, 1891, an order of court was made admitting the same to probate, and appointing John C. Spencer executor thereof. At the time of the death of James M. Spencer all the children were over the age of 21 years, except James R. Spencer, who was born November 8, 1878. Under the terms of this alleged will, $5 were bequeathed to James R. Spencer, $5 to Jane Porter, and all the rest, residue, and remainder of the estate was bequeathed to the widow, Fanny Spencer, and the elder son, John C. Spencer, to be equally divided between them. The estate was administered in accordance with the terms of this alleged will, and the executor was finally discharged from his said trust in 1894. The validity of the will was not questioned by any one until James R. Spencer, having attained his majority, and within one year thereafter, filed his petition contesting the will, and, as appears from the amended petition on which the case was tried, limiting the contest to two grounds: (1) Lack of mental capacity; and (2) fraud, menace, and undue influence of John C. Spencer. The answer put in issue the facts stated in the petition, and alleged the due execution of the will. The case was tried to a jury, which returned findings to the effect (a) that James M. Spencer on the 22d day of September, 1891, did not have sufficient mental capacity to make a testamentary disposition of his property; (b) that he did not have sufficient physical strength to execute a will; (c) that he did not subscribe his name at the end of the instrument offered for probate; (d) that he did not acknowledge to the subscribing witnesses that his signature to the will was made by himself or by his authority; (e) that he did not declare to such witnesses that the instrument was his will; (f) that said witnesses did not sign their names to the instrument at the request of James M. Spencer; (g) that James M. Spencer was not on that day acting under duress, menace, fraud, or undue influence of John C. Spencer. The court adopted these findings of the jury, and entered a decree setting aside the probate of the will, revoking the letters testamentary theretofore issued to John C. Spencer, and ordered letters of administration to be issued upon said estate to Fanny Spencer.

1. The appellant contends that the court erred in holding the former proceedings void in toto, and maintains that the probate of the will and the final order of distribution may not, in any event, in this proceeding, be set aside, except in so far as the rights of the contesting heir are concerned. The probate of wills and the settlement of estates are not governed by the general law relating to actions, proceedings, and judgments, but are, in the main, provided for by statute and, in so far as the statute has spoken, its declarations are final. The doctrine of the indivisibility of judgments, discussed and considered in Wells v. Wells et al., 144 Mo. 198, 45 S.W. 1095, does not apply. Section 2366 of the Code of Civil Procedure provides: "If no person, within one year after the probate of a will, contest the same or the validity thereof, the probate of the will is conclusive; saving to infants and persons of unsound mind, for a like period of one year after the respective disabilities are removed." The language of this statue is too plain to require either interpretation or construction. If the heir voluntarily permitting the time allowed by law to contest a will to elapse without making any objection can profit by a successful contest instituted by one whose time has not elapsed, he accomplishes by indirection that which the law forbids him to do directly, and reopens a controversy which the statute says is concluded. As was said in Thompson v. Samson, 64 Cal. 330, 30 P. 980, in considering this identical question: "The result of sustaining this proposition is, of course, to hold that no purchaser at an executor's sale, and no purchaser from any heir, legatee, or devisee, made even after final distribution, can ever be secure in his purchase until the expiration of one year after every infant and person of unsound mind who may be interested in the estate shall have been relieved of their respective disabilities." Our statute saves to persons not sui juris one year after the removal of their disabilities within which to contest the probate of a will. It also provides for the probate of a document purporting to be the will of a deceased person, for the hearing of the petition, the establishment of the will by proper proof, and the administration and final distribution to the persons entitled thereto. And such order and final distribution "is conclusive as to the rights of heirs, legatees, or devisees, subject only to be reversed, set aside or modified on appeal." Sections 2844, 3196, Code Civ. Proc. All these statutes must be construed together. Where there is a proper subject-matter, neither the order admitting a will to probate nor the order of final distribution is void, and neither can be contested or set aside except in the manner and within the time fixed by statute; nor can one against whom by lapse of time these proceedings have become "conclusive" avail himself of proceedings instituted and carried to a successful conclusion by one against whom the limitation has not run. Furthermore, an heir who has acquiesced in the settlement and final distribution of an estate in a certain manner is estopped afterwards to call this settlement and distribution in question, and to compel the return of, or an accounting for, the property thus parted with by the executor or administrator in good faith, and with the acquiescence and sanction of the heir; and this principle would apply if there were no will at all. On the subject of estoppel, see Lilly v. Townsend, 110 Mich. 253, 68 N.W. 136. Samson v. Samson, 64 Cal. 327, 30 P. 979, is...