Wilson v. Wilson

• Decision Date: 27 March 1933
• Docket Number: 30490
• Citation: 146 So. 855,166 Miss. 369
• Court: Mississippi Supreme Court
• Parties: WILSON et al. v. WILSON et al

146 So. 855

166 Miss. 369

WILSON et al. v. WILSON et al

No. 30490

Supreme Court of Mississippi

March 27, 1933

Division B

1 PARTIES.

Court should have refused to proceed under bill for partition where all necessary parties to complete final decree were not before him (Code 1930, section 2921).

2 EQUITY.

Plaintiffs should have amended bill instead of filing replication, since replications have been abolished (Code 1930, section 388).

3 WILLS.

"Concealed fraud," within statute extending time for contesting validity of will probated without notice, is designed fraud by which party knowing to whom right belongs conceals circumstances giving that right, thereby enabling himself to enter and hold (Code 1930, section 1609).

4. WILLS.

Where plaintiffs knew from beginning facts which would have avoided will, but testator's widow promised them she would make division of property and after two years expired repudiated promise, there was no "concealed fraud" extending time for contesting validity of will (Code 1930, section 1609).

5. WILLS. Estoppel could not operate to prevent defendant from pleading statute of limitations applying to will contest, which set up its own exceptions (Code 1930, section 1609).

Code 1930, section 1609, limiting time to contest validity of will probated without notice to two years, provides that if not contested within two years probate shall be final, saving to infants and persons of unsound mind period of two years after removal of respective disabilities, and that in case of concealed fraud limitation shall commence to run when fraud is or with reasonable diligence might have been discovered.

6. LIMITATION OF ACTIONS.

Exceptions set up in statute of limitations exclude others sought to be imported therein.

HON. T. PRICE DALE, Chancellor.

APPEAL from chancery court of Lawrence county HON. T. PRICE DALE, Chancellor.

Suit by George Wilson and others against C. E. Wilson and others. From the decree, defendants appeal. Reversed, and bill dismissed.

Reversed, and bill dismissed.

E. B. Patterson and C. E. Gibson, both of Monticello, for appellants.

In the outset, we call the court's attention to the fact that the proceeding in this case is an undertaking to collaterally attack the will. The bill of complaint filed does not make a direct attack on the will, but the bill is filed as if there had never been a will executed. It makes no reference to the execution and probation of the will in question. It was only after the execution and probation of the will had been plead in bar by the appellants that it was attacked by the appellees, and we therefore say that the attack made on the validity of the will is a collateral attack.

A judgment, regular in all respects, and reciting all necessary facts, including proper service of summons on defendant to entitle the court to render judgment, imports verity, and cannot be collaterally attacked.

Scott v. Porter, 44 Miss. 364, 60 So. 772; Royl v. Thurman, 125 So. 912; 130 So. 106; 158 Miss. 245.

The probate of a will is a judgment in rem and is binding on the whole world so long as it stands and is not subject to collateral attack and its validity can be contested and vacated only by seasonable appeal, or by bill to contest.

Whitney v. Towle, 141 So. 571; Kaplan v. Coleman, 60 So. 885, 180 Ala. 267, 87 So. 152.

The only ground by which the appellees can have any standing in this court in this case, if any they can have at all, is on the ground of concealed fraud. We are unable to see any concealed fraud in this case for the reason that the appellees' replication shows that they were in possession of all the facts, that they knew as much about his mental condition and his inability to make a will as the devisee knew, and if there was any fraud practiced, they are now estopped.

The presumption is that if a party affected by any fraudulent transaction or management might, with ordinary care or attention, have seasonably detected it, he seasonably had actual knowledge of it. Full possession of the means of detecting fraud is deemed the equivalent of actual knowledge.

17 R. C. L., sec. 105; Butt v. McAlpine, 52 So. 420, 167 Ala. 521; Patterson v. Weaver, 114 So. 301, 216 Ala. 686; Thornton v. The City of Natchez, 88 Miss. 1; Jones v. Rogers, 85. Miss. 802.

Under the facts of this case, we maintain that in view of the fact that the will was probated and remained probated unchallenged for two years and more that the decree entering the same to probate was conclusive and binding on all parties.

Section 1609, Code of 1930; 28 R. C. L. 394; Schlottman et al. v. Hoffman et al., 18 So. 893, 73 Miss. 188, 115 So. 112; 138 So. 588.

G. Wood Magee, of Monticello, for appellees.

Section 1609, Mississippi Code of 1930, prescribed a limit of two years to contest a will, but the latter part of this statute provides that in cases of concealed fraud the limitation shall commence to run at, and not before, the time when such fraud shall be, or with reasonable diligence might have been discovered.

The concealed fraud charged against the appellants is admitted by their demurrer. They did not file an answer denying the charges of concealed fraud, and by their demurrer they admit the truth of all these charges.

Falsely representing the state of one's mind to the injury of another is actionable.

Matthews v. Southeirner, 39 Miss. 174; 26 C. J. 1093.

If one makes a false promise not intending to perform it and thereby injures another, a cause of action arises.

12 Ruling Case Law, p. 261; Gross v. McKee, 53 Miss. 536.

Equitable estoppel may be invoked to prevent one from relying upon the statute of limitations.

37 C. J. 725.

One cannot plead the statute of limitations after lulling his advisory into a feeling of security. That is what the devisee in the will is trying to do.

If by misconduct, or by false statements of a debtor, one is caused not to sue, the debtor cannot plead the statute of limitations.

Barnett v. Nichols, 56 Miss. 622; Kelly v. Wagner, 61 Miss. 299.

OPINION

Griffith, J.

Appellees, Geo. Wilson and two others, sons of Geo. W. Wilson, deceased, filed their bill against their mother, Mary Jane Wilson, and against C. E. Wilson, another brother, and also against Louis Jones. Appellees complained that Geo. W. Wilson had died intestate and that their mother and said other brother had taken complete charge of all the land and other property of the decedent and were collecting from the defendant Jones payments for property sold to Jones by Wilson, Sr., before his death. Demand was made in the bill for a partition so that the three complainants should receive their respective portions of the property, including their shares in the collections made from Jones. It appears from the allegations of the bill that there are six or seven other children of the decedent and the widow, Mary Jane Wilson, but these seven children are not made parties to the bill. Under the general rule in respect to parties to land suits, as well as under section 2921, Code 1930, that "all persons in interest must be made parties" in suits for partition, the court could and should have refused to proceed under the bill because all necessary parties to a complete final decree which would terminate the entire controversy were not before him.

This was overlooked by the court for the reason perhaps that the...