Stanback's Estate, In re
| Decision Date | 12 May 1969 |
| Docket Number | No. 45353,45353 |
| Citation | 222 So.2d 660 |
| Parties | In the Matter of the ESTATE of Estella D. STANBACK (also known as Estella Brown Steinback, and Estella Stanback), Deceased. Virgin E. KNUCKLES, Complainant/Appellant, v. Lucy Mae WELLS (Lucy Mae Brown Wells), Ardelia Moore (Idela Brown Moore) andArthur Brown, et al., Defendants/Appellees. |
| Court | Mississippi Supreme Court |
William Thomas, Jr., Greenville, for appellant.
Bogen, Wilkes & McGough, Greenville, for appellee.
This cause arose in the Chancery Court of Washington County when the appellant filed a petition seeking probate of a will, issuance of letters testamentary thereon, and revocation of a will previously probated by the appellees. The appellees answered the petition and also filed a plea in bar as part of their answer. After a special hearing on the plea, it was sustained and the chancellor entered an order dismissing the bill of complaint.
Estella D. Stanback, the testator, died on March 26, 1966. Shortly thereafter, Lucy Wells, Ardelia Moore and Arthur Brown offered for probate a will executed by the deceased on June 8, 1964, in which they were designated as the sole beneficiaries. The will was admitted to probate in common form on May 26, 1966.
On February 14, 1968, the appellant, Virgin E. Knuckles, filed a petition seeking to set aside the will previously admitted to probate and to have admitted to probate a will which allegedly had been executed by the deceased on November 11, 1965. The petition for the probate of this document did not designate any of the interested parties as defendants thereto although it did allege that Edward J. Bogen was the executor of the first will. Neither does the prayer of the petition request that process issue for anyone nor does the affidavit to the petition set forth any facts upon which process could issue for a nonresident defendant. Thereafter, on June 5, 1968, at the request of the appellant's attorney, process by publication was issued for the beneficiaries under the first will.
The appellees filed an answer to the petition which contained, among other things, a plea in bar asserting that petitioner's action was barred under the provisions of Mississippi Code 1942 Annotated section 505 (1956) since it was not commenced within two years of May 26, 1966, the date the first will was admitted to probate. As mentioned, the evidence showed that appellant's petition for probate was presented to the chancery clerk and marked 'filed' on February 14, 1968. There was no request for summons to issue at that time and, in fact, none did issue until June 5, 1968. The position taken by the appellant at the hearing on the plea in bar was that the filing of the petition properly commenced the suit and therefore tolled the two-year statute of limitations. The appellees maintained, however, that the petition was not 'filed' within the meaning of the law until the appellant requested the chancery clerk to issue summons thereon, and since the statute of limitations had expired prior to that date, the action was barred.
The lower court, after considering evidence on the motion, sustained the plea in bar and dismissed the appellant's petition. The primary question presented to this Court on appeal is the propriety of the chancellor's ruling that appellant's suit was not commenced within the time prescribed by statute and therefore was barred under the law.
In order to answer this question it is necessary to briefly examine the statutes which are involved. Mississippi Code 1942 Annotated section 505 (1956) provides in part as follows:
Any person interested may, at any time within two years, by petition or bill, contest the validity of the will probated without notice; and an issue shall be made up and tried as other issues to determine whether the writing produced be the will of the testator or not; but if some person do not appear within two years to contest the will, the probate shall be final and forever binding * * *. (Emphasis added).
The terms of this section are self-explanatory. Simply stated, it provides that any party who wishes to contest the validity of a will probated in common form may do so by a petition or bill within two years of the date on which the will is admitted to probate. Mississippi Code 1942 Annotated section 506 (1956) also provides:
In any proceeding to contest the validity of a will, all persons interested in such contest shall be made parties. (Emphasis added).
It is evident from the above statute that the problem in this cause does not relate to the fact that the commencement of a suit within a designated time period is necessary to toll the statute of limitations. Indeed, the cases on this point seem to be in relative harmony. See Williams v. New York Life Ins. Co., 132 Miss. 345, 96 So. 97 (1923); Sartor v. Sartor, 39 Miss. 760 (1861); Dilworth v. Mayfield, 36 Miss. 40 (1858); and Bacon v. Gardner, 23 Miss. 60 (1851). See also Frederick Smith Enterprise Co., Inc. v. Lucas, 204 Miss. 43, 36 So.2d 812 (1948). The question here is what constitutes the 'filing of a suit' so that the suit is commenced.
In discussing this subject Griffith states in his Mississippi Chancery Practice section 222 (2d Ed. 1950), the following:
* * * In chancery the filing of the bill is the bringing of the suit, provided process in due course issue thereon. A suit in chancery is begun by the filing of a bill, but a filing must be one in the legal sense which is that process shall issue and be served in due course. Therefore the delivery of a bill to the clerk and having him mark it filed, and the entry of the case on the docket and the immediate taking out of the papers by counsel for the complainant with the statement that no process is to be issued until later, is not a filing and is not the institution of a suit. * * * (Emphasis added).
The subject has also been discussed at length in the early case of Meridian National Bank v. Hoyt & Bros. Co., 74 Miss. 221, 228-229, 21 So. 12, 14, 36 L.R.A. 796 (1896), wherein this Court stated:
* * * It is clear that marking the paper 'Filed' is not filing it. A paper may be marked 'Filed' and yet not be in fact filed, and a paper may be in fact filed though not marked 'Filed'; and the entry on the general docket does not constitute filing. All these indorsements of the clerk are evidence, but not conclusive evidence, of...
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