Wells v. Wells

• Decision Date: 30 January 1826
• Citation: 20 Ky. 152
• Parties: Wells & c. v. Wells.
• Court: Kentucky Court of Appeals

20 Ky. 152

Wells & c. v. Wells.

Court of Appeals of Kentucky.

January 30, 1826

Parties in Will Cases. Error. Statute of Limitations. Executors. Revocation. Republication.

ERROR TO SHELBY CIRCUIT; HENRY DAVIDGE, JUDGE.

Talbot and Wickliffe, for plaintiffs.

Crittenden for defendants.

OPINION

MILLS JUDGE.

[Absent Chief Justice Bibb.]

This is a case on the same will, which was before this court on a former occasion, as reported in 5 Litt. Rep. 273, to which reference is made.

This writ of error is sued out, to reverse the first order of the county court, rejecting the will, made in 1817, and fully explained in the report referred to. The defendants in error have plead the statute of limitations, and the plaintiffs in error have replied infancy and coverture, and the parties on this point, have referred the facts, as well as the law arising thereon, to the court without a jury.

Plea of the statute of limitations to the writ of error; replication infancy and coverture; and the fact and law referred to the court.

Statement.

In the will there are many legatees, consisting of the children of the testator, by different wives, and only a few of them have united in this writ of error. All who have sued out the writ have brought themselves by unquestionable proof, within the savings of the statute. But one of the legatees who has a joint interest with the plaintiffs, and who has not united in the writ, is shewn not to be within the saving of the act and it is now contended either that the writ is defective and can not be sustained, because that legatee has not joined, or that if it can, it must be considered as if that legatee was joined, and that of course all are bound.

The proceedings in the county court to establish and admit wills to record can not be reduced to the rules of other legal proceedings by proper parties; and the writ of error here, in its original features, very illy suits the case, and yet it is applied to it. The jurisdiction is peculiar, and the sentence or decision as held before in this case, is a proceeding in rem, and is conclusive against the world, or all who were not parties or privies. Such was the proceeding of the ecclesiastical courts in England, as to the proof of wills in matters relating to personalty, and in many of the American States, as to both personal and real estate. 1 Starkie Evi. 230.

Proceedings in the county court and here, and the decisions establishing and annulling wills are cases as in rem wherein all the world are concluded.

The reason given for this is, that all others who have an interest may become parties, if they choose so to do; and if they become parties, each has a right to choose his attitude, either as actor or reus. Hence it was held, in the former opinion in this case, that either the executor or legatee was a suitable person to present and prove a will, and in the proceeding, each legatee may act either as plaintiff or defendant. If it is the interest of one not to prove the will he may decline it--if to prove it, he may either do it, or decline it, or oppose it as he pleases.

In will cases all who are interested may become parties, and may choose their sides.

Either the executor or a legatee may present the will for proof.

If then the persons concerned may choose their attitude in the court below-- may sustain or oppose the will or do either, it follows that they may act in the same manner in this court and that their rights here are the same; otherwise the powers of this court could not be commensurate with that of the court of original jurisdiction, nor could the rights of the parties here be the same. There they may act as their interest or inclination leads them, here they would be compelled to act by technical rules--the reason of which did not apply to the case. Generally a judgment or decree between ordinary p...