In re Will of Bentley

Eggleston, J., delivered the opinion of the court. Susan Bentley, a resident of the city of Richmond, died on February 28, 1934. On April 3, 1934, a paper writing dated January 19, 1917, was presented to the court below and in an ex parte proceeding was duly proved, established and admitted to probate as and for her true last will and testament. On July 7, 1939, J. Thomas Hewin presented to the court below and offered for probate as and for the true last will and testament of the deceased a paper writing dated February 7, 1922, in which he was named as executor. The proponent offered to prove the due execution of the instrument and moved the court that he be permitted to qualify as executor thereof. The beneficiaries under the will theretofore admitted to probate opposed the probate of the purported will of February 7, 1922, and offered to prove that the testatrix at the time of the execution of the latter instrument was not of sound mind and was incapable of making a will. The dispositions by the testatrix of her real and personal property under the first will are inconsistent with those in the subsequent will. — 459 — The lower court refused to consider the probate of the purported will of February 7, 1922, for the reasons thus stated in its order: “And no bill or other proceedings having been filed, within two years (that being the time limit fixed by statute existing 3rd April, 1934) from the order of probate and adjudication of April 3rd, 1934; and the Court being of opinion that the order of April 3, 1934, is forever binding as stated in Section 5259 Code of Virginia, doth refuse to consider the paper writing dated February 7th, 1922, and this day presented and offered for probate.” From this order J. Thomas Hewin, the executor named in the purported will of February 7, 1922, has appealed. At the time the first will was probated, on April 3, 1934, Code, section 5259, provided, among other things, that after the probate of a will under sections 5249 or 5259, “a person interested, who was not a party to the proceeding, may proceed by bill in equity to impeach or establish the will, on which bill a trial by a jury shall be ordered to ascertain whether any, and if any, how much of what was so offered for probate, be the will of the decedent.” The section further provided that such bill should be filed within two years* from the date of the entry of the order of probate by the court, either in the exercise of its original jurisdiction or on appeal from the clerk, or from the date of the entry of the order of probate by the clerk when no such appeal is taken, and that “If no such bill be filed within that time, the sentence or order shall be forever binding.” Code, section 5260, provides a saving for non-residents and persons under disabilities. It will be observed that section 5259 in terms places a limitation on the time within which a suit in equity may be brought “to impeach or establish” a will. It places no limitation on the time within which a will may be probated. Under Code, section 5263, the title of a bona, fide purchaser for value of real estate from the heir of a decedent is protected against a devise of the lands by the decedent, — 460 — of which the purchaser had no notice, unless the will be probated within one year of the death of the testator. Except for this latter section there is no statute in Virginia placing any limitation of time upon the probate of a will. Bliss v. Spencer, 125 Va. 36, 57, 99 S. E. 593, 5 A. L. R. 619. It is well settled in this State and elsewhere that the judgment of a probate court of competent jurisdiction admitting a paper to probate is in the nature of a judgment in rem,, and as long as it remains in force binds conclusively all parties and all other courts. Culpeper Nat. Bank v. Morris, 168 Va. 379, 387, 388, 191 S. E. 764, and cases there cited; Freeman on Judgments, 5th Ed., Vol. II, section 812; 28 R. C. L., section 376, p. 375; 68 C. J., section 597, pp. 874, 875. Such a judgment of probate can not be collaterally attacked and can only be assailed in the manner provided by statute. West v. Ex’rs, 3 Rand. (24 Va.) 373, 386; Robinson v. Allen, 11 Gratt. (52 Va.) 785, 787; Norvell v. Lessueur, 33 Gratt. (74 Va.) 222; Avant v. Cook, 118 Va. 1, 4-6, 86 S. E. 903. But it is equally well settled that the conclusiveness of the judgment of probate of an. earlier will does not preclude the probate of a later will for the reason that, as we shall presently see, the probate of the later will is not an attack on the judgment of probate of the earlier will. The precise question was before this court in Schultz v. Schultz, 10 Gratt. (51 Va.) 358, 60 Am. Dec. 335, decided in 1853, which appears to be a leading case on the subject. In that case a subsequent will was presented to the probate court more than seven years after the first will had been probated. The applicable statute (Code 1819, ch. 104, section 13, p. 378) provided that a person interested might within seven years after the probate of a will file a bill in chancery to contest its validity, and that “no such party appearing within that time, the probate shall be forever binding,” with a saving for non-residents and persons under disabilities. — 461 — Nevertheless, this court, with full realization of the nature and conclusiveness of the judgment, held that the court by admitting one will of a deceased to probate had not exhausted its jurisdiction over the subject of the testamentary disposition of the decedent’s estate and was not precluded by such judgment of probate from passing upon the probate of a later will subsequently propounded. This court pointed out that a man’s last will may consist of several different testamentary papers of different dates and that it is not indispensable that they should be probated at the same time. Moreover, it was said that if after the probate of an earlier will a later will is found which “contains an express clause of revocation of former wills, or contains a disposition of the estate incompatible with the provisions of the former, or from its general character may be inferred to be an entire new instrument; intended to supersede the former, the court of probate should receive and admit it to probate, leaving it to have such effect as the law would necessarily attach to it,” and that before probating the second will it was not necessary to file a bill in chancery under the statute to set aside the probate of the former will. (10 Gratt. (51 Va.), at page 375, 60 Am. Dec. 335.) To the same effect, see Waters v. Stickney, 12 Allen (Mass.) 1, 90 Am. Dec. 122; Bowen v. Johnson, 5 R. I. 112, 73 Am. Dec. 49; Merrill v. Boal, 47 R. I. 274, 132 A. 721, 45 A. L. R. 830; Vance v. Upson, 64 Tex. 266; In re Moore’s Estate, 180 Cal. 570, 182 P. 285; Murrell v. Rich, 131 Tenn. 378, 175 S. W. 420; Cousens v. Advent Church, 93 Me. 292, 45 A. 43. In each of these cases Schultz v. Schultz, supra, is cited with approval. See also, Gaines v. Hennen, 65 U. S. (24 How.) 553, 16 L. Ed. 770;* Gaines v. New Orleans, 73 U. S. (6 Wall.) 642, 18 L. Ed. 950.* — 462 — But the appellees insist that the offer to probate the later will is in effect a contest of the earlier will, and that it does not conform to Code, section 5259, which prescribes the exclusive method of contesting a will probated ex parte, namely, by a bill in equity filed within two years of the order of probate. Whether the application to probate a later will whose provisions are inconsistent with those of a will previously probated is in effect a contest of an earlier will and may not be heard after the expiration of the statutory period for contesting the first will, is a question on which the courts are divided. The weight of authority seems to be that the offer of probate of a second will is not such a contest within the meaning of a statute similar to Code, section 5259. In Woerner on The American Law of Administration (Including Wills), 3d Ed. Rev., Vol. II, section 217, p. 719, it is said: “In most States, but not all, a subsequent will may at any time be probated, such proceeding not being considered a contest of the will theretofore probated, though inconsistent with its dispositions.” Those authorities which hold that the probate of a subsequent will is not a contest of an inconsistent will theretofore probated reason thus: The order of probate of the first will settles all questions as to the formality of its execution and the capacity of the testator. Upon inquiry the court ascertains and finds that the instrument has been executed and witnessed in the proper manner by one who is capable of making a testamentary disposition of his property. The probate of the subsequent will does not attack the due execution of the will previously admitted to probate or the testamentary capacity of the testator. It merely establishes that by a testamentary writing of later date, likewise properly executed by a person of testamentary capacity, the testator has made dispositions of his property which are inconsistent with those found in the will previously probated. It is true that both instruments can not stand. But the first will is revoked by the act of the testa — 463 — tor in executing a subsequent will, and not by the judgment of the court in admitting the later will to probate. The result flows not from any proceeding attacking the probate of the first will, but from the law which gives vitality and force to the last testamentary act of the testator. On the other hand, a suit in equity to contest a will which has been admitted to probate is a direct attack on the judgment of probate. In such a proceeding if the court ascertains that the will previously admitted to probate is not the true last will and testament of the testator, the judgment of probate is annulled and set aside. Typical of this line of cases are, In re Moore’s Estate, 180 Cal. 570, 182 P. 285, 289; Vance v. Upson, 64 Tex. 266, 269; Murrell v. Rich, 131 Tenn. 378, 175 S. W. 420, 427. See also, 107 A. L. R. 252, note. There are, however, cases which hold that to probate a later will whose provisions are inconsistent with those of a will previously admitted to probate is in effect a contest of the earlier will within the meaning of a statute similar to Code, section 5259. See Watson v. Turner, 89 Ala. 220, 8 So. 20; Couchman v. Couchman, 104 Ky. 680, 47 S. W. 858, 44 L. R. A. 136; Burns v. Travis, 117 Ind. 44, 18 N. E. 45. See also, 107 A. L. R. 252, note. In Schultz v. Schultz, supra, this court held that the fact that the time had expired within which a bill in equity could be filed to set aside a will admitted to probate would not preclude the probate of a subsequent inconsistent will. That is to say, the limitation placed on the time for filing a bill in equity under Code, section 5259, does not apply to the probate of a subsequent inconsistent will, for the reason that the offer to probate the subsequent will is not a contest of the first will within the meaning of that section. See Harrison on Wills and Administration, Vol. I, section 138, p. 245; 2 Virginia Law Register (N. S.), pp. 433, 434. Schultz v. Schultz, supra, was decided in 1853. It has long been recognized by text writers and by the profession as the settled law in Virginia. See Harrison on Wills and Administration, Vol. I, section 138, p. 245; Page on Wills, — 464 — section 321; 2 Virginia Law Register (N. S.), pp. 433, 434. In a paper entitled “Some Suggested Changes In The Law Of Wills In Virginia”, read before the Virginia State Bar Association in 1916 by Hon. R. Gray Williams, and found in 2 Virginia Law Register (N. S.), p. 401, among other matters, it was recommended to the profession (pp. 432-437) that the principles laid down in Schultz v. Schultz, supra, be changed by legislative enactment; that some limitation be placed on the time within which a will might be offered for probate; that the offer to probate a subsequent will be placed on the samé footing as the institution of a contest of the will already probated; and that section 2547a of the Code of 1904 (as amended by Acts 1914, ch. 303, p. 511; Acts 1916, ch. 292, p. 509)*, protecting the title of a bona fide purchaser for value of real estate from the heir of a decedent after the lapse of a specified time, be amended to include the title of a bona fide purchaser for value of real estate from a devisee. While it appears from the revisors’ note to section 5259 of the Code of 1919 that they adopted some of the recommendations made in this article, no attempt was made to- change the principles laid down in Schultz v. Schultz, supra. Nor has the General Assembly at any of its subsequent sessions seen fit to do so. It is true that in Schultz v. Schultz, supra, the applicable statute (Code 1819, ch. 104, section 13, p. 378, corresponding to the present Code, section 5259) providing for the contest of a will probated ex parte, in terms confined the inquiry to the identical papers which were probated or rejected in the proceeding. By the language of the statute the jury was directed to ascertain whether “the writing produced” be the will of the testator. There was no provision for requiring the production of other testamentary papers. Cf. Revisors’ Note, Code 1919, section 5259. The revisors of the Code of 1919 added to section 5259 this sentence, “The court may also, if it deem proper, require all testamentary papers of the same decedent to be produced, and direct the jury to ascertain whether any, — 465 — or if there be more than one, which of the papers produced, or how much of what was so produced, be the will of the decedent.” The obvious purpose of this amendment was to conform section 5259 (pertaining to probates ex parte) to section 5257 (pertaining to probates inter partes), and to permit the jury, in a contest under either section, to pass upon all testamentary papers of the testator, whether admitted to probate or not. See Harrison on Wills, Vol. I, section 140, p. 248; 2 Virginia Law Register (N. S.), p. 437; Revisors’ Note, Code 1919, section 5259. But there is nothing in the language of the amendment to section 5259, or in any other part of the statute, which suggests that the proponent of a subsequent will must offer it for probate only in an equity suit brought to contest the will theretofore probated. Our conclusion, therefore, is that the offer to probate the second will in the instant case was not a contest, within the meaning of Code, section 5259, of the will previously admited to probate. We are not unmindful of the fact that it would greatly promote the stability of titles to real estate if some limitation were placed upon the time within which a will may be probated after the death of the testator, or if the probate of a subsequent will were placed upon the same footing as the institution of a contest of a will already probated. These, however, are matters for the General Assembly and not for the courts. For the reasons stated we are of opinion that the trial court erred in refusing to hear the application for the probate of the writing dated February 7, 1922. Accordingly, the order appealed from is reversed and the cause is remanded for further proceedings in conformity with the views here expressed. Reversed and remanded. Footnotes [*] This period was reduced to one year by amendment to this section. Acts 1934, ch. 339, p. 523. [*] These eases involve the probate of two wills by Daniel Clark, a resident of Louisiana. The rights of various parties claiming under the respective wills were the subject of no less than eleven appeals to the United States Supreme Court. Davis v. Gaines, 104 U. S. 386, 406, 26 L. Ed. 767. [*] Code 1919, section 5268.