Dowell v. Tucker

Battle, J. On the -18th day of August, 1884, Dowell and Taylor Dowell commenced this action against Frank W. Tucker and others. They state in their complaint, among other things, as follows : That, on or about the 9th day of September, 1865, Samuel Robinson departed this life intestate, leaving him surviving his daughter, Martha C. Dowell, wife of John Henry Dowell, as his sole heir at law, the said Martha G. being-the mother and the said John Henry Dowell being the father of plaintiffs. That Samuel Robinson, at the time of his death, was seized and possessed of real and personal property of the value of $40,000. That some time in March, 1868, Martha C. Dowell departed this life intestate,, leaving her surviving her husband, the said John Henry Dowell, and the plaintiffs, her sons, and sole heirs at law. That on the 11th day of October, 1865, the said John Henry Dowell, at the county of Lawrence and before the probate court of said county, “procured to be propounded a certain instrument of writing, which he falsely and fraudulently represented to be the last will and testament of Samuel Robinson, deceased.” That by this supposed will Samuel Robinson is made to say: “ I give, devise and bequeath to my daughter, Martha Cyrena Dowell, and my son-in-law, John Henry Dowell, the whole of my undivided estate, all the property, real, personal and mixed, of which I shall die seized or possessed, or to which I shall be entitled at the time of my decease, of whatever kind or character, to have and to hold to them and their heirs to their use and benefit forever, without any reserve whatever.” That this paper was probated and admitted to record by the court of probate of Lawrence county, and said John Henry Dowell qualified as executor thereof and took possession of the personal and real estate, sold and disposed of the former, settled with the court, and was discharged before the commencement of this suit. That the said paper-writing was not the last will and testament of said Samuel Robinson, deceased, because— First — He was, at the time when, etc., mentally incapable of making a will. Second, — Said will was not the voluntary conscious act of the said Samuel Robinson, but was prepared, concocted and executed by the said John Henry Dowell, and under his direction and influence, and was procured by fraud.and deceit practiced upon the said Samuel by the said John Henry. Third — That there was no publication of the will and ua declaration by the said Samuel concerning the same. Fourth — That the probate was informal. That after the death of the said Martha O. the said John H. sold and conveyed the lands to Henry M. Mandeville ■and William Allen, since deceased, who took possession under their deed; that since that time Mandeville sold and •conveyed his interest to defendant, Frank W. Tucker, and Tucker reconveyed by way of trust to secure the purchase money, and that this trust is still unsatisfied ; that Allen died before the commencement of this action, leaving a widow and divers heirs, some of whom are known and others unknown to plaintiffs; that Tucker and the heirs of Allen are in possession of the lands, who, with Mandeville, are made defendants. The prayer of the complaint was that said pretended will be rejected, declared void and held for naught, and for other relief. The defendant, Tucker, demurred to the complaint, because— First — It did not state facts sufficient to constitute a ■cause of action against him. Second — The circuit court has no jurisdiction of the subject matter of the controversy. Third — Misjoinder of parties defendant. Fourth— For want of proper parties. Fifth — That neither of the ■paragraphs shows a cause of action, nor all together, ■against him. Sixth — Because the action appears to be •barred by limitation of five years. Seventh — Because plaintiffs are estopped by acts of their ancestors, through whom they claim. ' The demurrer was sustained by the court, and the plaintiffs appealed. 3.. Contesting Wills: Statute repealed. This action is based on sections 6525 and 6526 of Mansfield’s Digest, which say: “If any person interested in the probate of any will shall appear within five years after the probate or rejection thereof, and by petition to the circuit court of the county in which such will was established or rejected, pray to have any such will rejected, if previously established, or proven, if previously rejected by the court of probate, it shall be the duty of the circuit court to direct an issue to try the validity of such will, which issue shall in all cases be tried by a jury.” “ Sec. 6526. If no person shall appear within the time aforesaid to contest the validity of such will, the probate or rejection thereof shall be binding, saving to infants, married women, persons absent from the United States, or of unsound mind, a like period after their respective disabilities are removed.” Have these statutes been repealed? They were a part cf the revised statutes of this state. Subsequent to their enactment the civil code of practice was enacted. Section 513 of the civil code 'provides, that wills shall be proven before and admitted to record by the probate court; that an appeal shall lie from the probate court to the circuit court, and thence to the Supreme Court, upon every order admitting a will to record, or rejecting it; that the appeal to the circuit court shall be taken within three years after rendering the order of probate, or rejection in the probate court, and to the Supreme Coui’t within one year after the decision in the circuit court; that the court to which a will is offered for probate may cause all persons interested in the probate to be summoned to appear on a certain day; that when the proceeding is taken to the circuit court, all the necessary parties shall be brought before the court; and upon the demand of any one of them a jury shall be empanneled to try which or how much of any testamentary paper produced is, or is not, the last will of the testator; that, if no jury be demanded, the court shall determine that question, and the final decision given shall be « bar to any other proceeding to call the probate or rejection of the will in question — subject to the right of appeal or writ of error to the Supreme Court as hereinbefore named, hut nothing in that section should preclude a court of chancery from its jurisdiction to impeach such final decision, for such reason as would give it jurisdiction over any other judgment at law. Section 21 of the civil code provides that appeals from orders and judgments of the probate court “may be taken to the circuit court in the same time and in a similar manner in which appeals from the circuit court are taken to the Supreme Court, except that the original papers and copies of the orders of the probate court shall be delivered by the clerk of the probate court to the clerk of the circuit court, upon an appeal being taken, instead of a copy of the complete record.” Section 780 says: “This code of practice shall reguulate the procedure in all civil actions and proceedings in the courts of this state, and all laws coming within the purview of its provisions shall be repealed.” Section 857 says : “All statutes and laws heretofore in-force in this state, in any case provided for by this code, or inconsistent with its provisions, are hereby repealed and abrogated.” The civil code of practice unquestionably provided for all cases in which sections 6525 and 6526 of Mansfield’s Digest afforded any relief or remedy, and that being the case repealed the last named sections. In the absence of an express repeal they were repealed by the code by implication. For, as said in Pulaski County v. Downer, 10 Ark., 590, “ The authorities are abundant to support the proposition that when the legislature takes up a whole subject anew, and covers the entire ground of the subject matter of a former statute, and evidently intended it as a substitute for it, the prior act will be repealed thereby, although there may be no express words to that effect, and there may be in the old act provisions not embraced in the new.” See Mears v. Stewart, 31 Ark., 19. The general assembly, by an act entitled “ An act to divide the state into sixteen judicial circuits, to confer original jurisdiction in all matters pertaining to probate and administration upon circuit courts, and to fix the time for holding said courts,” approved April 16, 1873, abolished probate courts, and vested in the circuit court all the. powers and jurisdiction formerly, and at the time of the passage of the act, possessed by courts of probate. The circuit court was vested with jurisdiction in all matters pertaining to the probate of wills at the time the constitution of 1874 was adopted. By that constitution probate courts were re-created and vested with “ such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians and persons of unsound mind, and their estates, as was then vested in the circuit courts, or might be thereafter prescribed by law.” It must follow, then, that under the constitution of 1874, the circuit court has not and cannot take original jurisdiction in any matter relative to the probate of wills. 2. Statute tatio™" disaMiitie! If it be true that the statutes relied on by appellants are still in force, they are barred from maintaining this action, The five years in which these statutes required such actions to be brought expired before the commencement of this suit. The complaint alleges that Samuel Robinson, the testator, left him surviving Martha C. Dowell, his daughter, his sole heir; that the will in question was probated on the 11th day of October, 1865 ; that Martha O. was a married woman at this time, and so continued until her death ; and that she died some time in March, 1868, intestate, leaving surviving her, the plaintiffs her sole heirs and distributees at law. Under this state of facts Martha O. Dowell was the only party who had a right to contest the will of Robinson during her lifetime. She was a married woman, and the five years did not commence running during her coverture; but when she diedit commenced running against the plaintiffs. The fact that they where minors at that time did not prevent the statute running. They cannot tack their disabilities to that of their mother, Martha O. Dowell, in order to suspend or continue the suspension of the operation of the statute. This is a well settled principle of law. Angelí on Limitations (6 ed.), secs. 197, 198, 4T7-, 4¶9, 4-82; Wood on Limitations, sec. 251; Thorp v. Raymond, 16 How. (U. S.), 247; Lewis v. Marshall, 5 Pet. (U. S.), 469; Carter v. Cantrell, 16 Ark., 164; Parsons v. McCracken, 9 Leigh, 495; Bunce v. Walcott, 2 Conn., 32. As a rule the statute of limitation cannot be taken advantage of by demurrer to the complaint, in an action at law, unless the complaint shows that a sufficient time had elapsed to bar the action, and the non-existence of any ground of avoidance. That is done by the complaint in this case. Collins v. Mack, 31 Ark., 684; McGehee v. Blackwell, 28 Ark., 27. The demurrer in this case was properly sustained. The judgment of the court below is affirmed.