W. & A. Singleton v. Singleton et al

• Decision Date: 01 June 1848
• Citation: 47 Ky. 340
• Parties: W. & A. Singleton <I>vs</I> Singleton <I>et al.</I>
• Court: Kentucky Court of Appeals

47 Ky. 340

W. & A. Singleton vs Singleton et al.

Court of Appeals of Kentucky.

July, 1848.

APPEAL FROM THE WOODFORD CIRCUIT.

IN June, 1841, after the decree of the Woodford Circuit Court, founded on a verdict against the validity of the writing which had been admitted to probate in the Woodford County Court, as the last will and testament of Jeconias Singleton, deceased, had been affirmed by this Court, (Case of Singleton's will, 8 Dana, 315,) William Singleton and Atwell Singleton, infant grandsons of said Jeconias, and claiming to be his devisees, filed by their next friend, William R. Keene, their bill in the said Circuit Court, praying for a review and reversal of said decree, on the ground that they had not been made parties to the bill and proceeding in which said decree was rendered; that being infants of tender years, the one eleven and the other eight years of age, they had no notice or knowledge of said proceeding — had no opportunity of defending and protecting their rights, and are seriously injured by the decree. They make the suit in Chancery for invalidating the will, and every part of the proceeding appertaining to it, a part of their bill — they show that by one of the clauses of said will, a tract of seventy four acres of land, alledged to be worth $5,000, is devised to their father, Elijah Singleton, a son of the testator, for life, with remainder in fee, to his eldest sons — that they are and were at the date of the said writing, the two eldest sons of said Elijah, and they alledge their interest to be worth $3,000. They aver that said writing is the true and valid last will and testament of said Jeconias Singleton, and alledge that since said decree, the complainants in the former decree are dividing the estate, and making all the parties to the former proceeding, and also the administratrix, since appointed, defendants to their bill; they pray that the said decree may be reviewed, reversed and opened, and that they be allowed to contest the matters set up in the original bill therein; that the issue whether the said writing is the true will of Jeconias Singleton, be tried by a jury, so that they, by their next friend and his counsel, may have an opportunity of maintaining its validity and protecting their rights under it; and they pray for all equitable relief.

In March, 1842, the complainants filed their bill of revivor and amendment, reviving the suit against the administrator de bonis non, of Jeconias Singleton, Jane Singleton, the administratrix, having died, and alledging in detail, the existence, in regard to said writing, of all the circumstances necessary to make it a valid will of lands and personalty, and referring to the proceedings for setting it aside, of which they were wholly ignorant; they say there was no decree against them, as they were not parties; that Elijah Singleton, against whom, with others, the decree was rendered, was but tenant for life of the lands devised to them in remainder, and that he was, as such, unable to sustain the suit by which said will was pretended to be set aside for want of sufficient interest; and that said decree was not only erroneous in as much as it was rendered against said Elijah Singleton only, and affected the inheritance, but also in this, that the issue formed to try the validity of the will, was contrary to law and not such as the statute authorized, and that the rights of infant devisees were not protected, and they were not parties to said suit. They say the said proceedings ought to be reviewed, and pray that said will may be established and the cause heard on the new and supplemental matter aforesaid, at the same time that it is re-heard on said original bill, that the proceedings may be reviewed and the rights of the parties ascertained and determined; and if this be not the proper relief, they pray for such other relief as belongs to their case.

To these bills a demurrer was filed by those of the defendants who had opposed the will, and also a plea relying on the former decree and its affirmance in this Court, as a bar to all relief in the premises. And the cause having, by agreement of all parties, been submitted to the Court for final decision on these pleadings, the demurrer and plea were sustained and the bill dismissed with costs. For the reversal of this decree the complainants have appealed to this Court, and the question is presented whether, upon the statement and prayer of the bill, and giving due effect to the affirmance by this Court, of the decree sought to be opened, they are entitled to any relief, and if any, in what form and to what extent. The first enquiry is as to the sufficiency of the bill, and first, whether it shows any grievance to the complainants; and second, whether it lays the ground for any appropriate remedy within the power of the Court. If it does, then under the prayer, specific or general, the complainants should be entitled to the relief belonging to this case.

I. In discussing the bill at the bar, some debate occurred as to its true character and name, and it was argued upon the definitions of "a bill of review," "a bill in the nature of a bill of review," and "a supplemental bill in the nature of a bill of review," and upon the cases to which the elementary writers on chancery practice state these bills to be respectively applicable, that this bill, upon the case which it makes out, is not entitled to either of these denominations or characters. And it is insisted that as a decree cannot be opened, reviewed or reversed by bill, unless it belong to one of these classes, the complainants, so far as they seek a reversal of the decree, must fail in limine.

But the names of these several bills are of no other importance than as they serve to designate the mode of applying, under different circumstances, for the review and reversal of a decree by bill. Every bill which seeks the review and reversal of a decree, is essentially a bill of review or a bill in the nature of a bill of review. Even a bill which seeks to set aside a decree for fraud, is said to be an original bill in the nature of a bill of review: (Story on Eq. Plea. page 340;) and so must every bill which seeks to reverse the decree on any other ground, be regarded as a bill of review or a bill in the nature of a bill of review, whether it shall be called a bill of review simply, or a bill in the nature of a bill of review, or an original or supplemental bill in the nature of a bill of review, depends upon its contents and objects, and the circumstances under which, and the parties by or against whom it is filed.

A bill of review strictly so called, is a bill filed after the enrollment of the decree, seeking its review and reversal on the ground either of error of law on its face, or of new matters subsequently discovered. If the decree be not enrolled, a bill seeking a review and reversal, though in the nature of a bill of review on account of its object, is not strictly a bill of review, because the decree is not enrolled. But as a decree not enrolled could be re-heard and changed on a petition merely, a bill for this purpose is not necessary, unless new matter or new parties are to be introduced, when the bill being in respect to the new matter or parties, supplemental, and in respect to its object, in the nature of a bill of review, it is called a supplemental bill in the nature of a bill of review; and as we have seen, a bill impeaching a decree on the ground of fraud, is or may be called an original bill in the nature of a bill of review.

Originally, perhaps the parties to the decree or record, or their privies in representation, may alone have been allowed to file a bill of review or a bill in the nature of a bill of review, or a supplemental bill of that nature; and it is sometimes laid down that these bills can only be filed by the parties. But if this was the case originally, the rule was relaxed in process of time, when it appeared that it was requisite for the preservation of the interests of persons who were not parties to the decree, but were bound or affected thereby, to have remedy by bill, for its review and reversal. Some of the cases in which the right to come in by bill for the review and reversal of a decree, has been allowed to persons who were not parties to the record nor their privies in representation, will be hereafter noticed. It is sufficient at present, to say that the bills by which they have been thus allowed to obtain relief, being in their nature and object, bills of review, and stating also new matter, at least so far as they bring in new parties and show their interest, may with propriety be called supplemental bills in the nature of bills of review: (Story's Eq. Plead., page 338 Sec. 424.) The main question, however, is whether the matter of this bill is sufficient to authorize and require a reversal of the decree, and whether the complainants are in a condition which entitle them to seek a reversal by bill. If these questions be answered in the affirmative, we should not doubt that if a name be necessary for the bill, an appropriate one may be found in the vocabulary of a Court of equity.

II. The bill shows that a writing purporting to be the will of Jeconias Singleton, alledged by the complainants to be his true and valid will, by which if valid, an estate by way of vested remainder upon a life estate, and worth $3,000, is devised to them was, if the rule of chancery practice is to prevail in such proceedings, annulled and set aside by verdict and decree in a suit brought by some of his heirs, against all of his devisees except the present complainants — that they were in being at the death of the testator, and during the whole progress of the suit, with such interest as entitled and required them to be made parties after having been admitted to probate in the County Court — that they were infants of tender years, having no knowledge or notice of the proceedings, not made parties...