Preston v. Fidelity Trust & Safety Vault Co.

JUDGE PRYOR delivered the opinion of the court. Mrs. Mary Howard Preston departed this life on the 17th of November of the year 1892, leaving a paper purporting to be her last will and testament that was offered for probate in the Jefferson Connty Court, and by one of its provisions the Fidelity Trust [300] and Safety Yault Company was made,the sole executor. The contestants, who were the heirs at law of Mrs. Preston, resisted the probate of the will on three grounds — first, because the decedent, at the time of her death, resided in the county of Trimble; second, she was of unsound mind at the time she executed the instrument; and lastly, that it was procured by undue influence. The case was heard by the Judge of the Jefferson County Court on December 30, 1892, upon evidence touching all the points at issue, viz: residence, mental capacity and undue influence, and this judgment entered: “It is the judgment of the court that the legal residence of Mary Howard Preston at the time of her death was in Trimble county, Kentucky, and for that reason this court has no jurisdiction to pro-late the will, and the said motion is overruled.” After this judgment was entered the propounders of the paper took an appeal to the Jefferson Court of Common Pleas, and after the case reached that court the contestants, for the purpose of questioning the jurisdiction of the court, moved lo dismiss the appeal for want of jurisdiction on the part, of that tribunal to determine the question, insisting that the remedy for the propounders was not by an appeal, but to apply to a court of superior jurisdiction to-compel the county court, by mandamus, to dispose of the case on its merits. • The common pleas court having the jurisdiction of appeals in will cases, overruled the motion to dismiss the appeal taken by the propounders, and the contestants, claiming that this. [301] ■action on the part of the judge of the court of common pleas was a usurpation of jurisdiction, filed the present petition in this ihe appellate court, asking for a writ of prohibition commanding the judge of the court of common pleas to cease entertaining jurisdiction on the appeal. The right of the contestants to this writ, and the ■exercise of such a supervening power by this court, is claimed to be derived from section 110 of the new •Constitution, that provides: “ Said court (the Court ■of Appeals) shall have power to issue such writs as may be necessary to give it a general control of inferior jurisdictions.” As the court below has, in our opinion, jurisdiction of the appeal, it is unnecessary to determine the power of this court to grant the writ. We will proceed, therefore, to discuss only the right of the propounders to an appeal. The statute gives to the circuit' courts (common pleas courts having like jurisdiction) jurisdiction of appeals from every judgment of a county court admitting a will to record or rejecting it. (General Statutes, section 27, chapter 113, title Wills.) It is not claimed that this will has been rejected on the merits, or that the judgment of the county court rejecting it for want of jurisdiction would be .a bar to a like proceeding in the Trimble County Court, but it is contended the probate has been denied, and this gives the right to an appeal; and if so, the remedy being ample, ‘it affords a strong-reason for refusing the • writ. The language of the statute, in regard to appeals [302] in will cases, does not require, before an appeal can. be taken, that a judgment should first be rendered invalidating the paper. It is enough that the court to which the application is made refuses to probate the writing, whether for the one cause or the other the will has been rejected, and the right to an appeal .exists. The word reject means, as defined by Mr. Webster, “to throw away; to discard ; to refuse to receive; ” “to refuse to grant, as to reject a prayer or request.” To give the word reject the technical meaning contended for by counsel for the contestants, would be to deny the prepounders a remedy when the offer of probate is denied, and the jurisdiction of the county court, so far as its decision goes, ended. If application to probate should be made to the Trimble County Court, with a decision adverse to the jurisdiction, the propounders would be without remedy. When the case reaches the circuit court the judge hears the testimony on the question of jurisdiction and determines it, and if his judgment should be adverse to that of the county court, the case will then be tried on its merits, and whether at the same term is for that court, and not this, to determine. If the decision of the judge ends with that of the county court as to the jurisdiction, the propounders on that issue alone can appeal to this court, and if the ca.se is heard on the merits either party can also raise the question should it come to this. There is no reason why the case should not be tried as other cases on appeal, the court first determining its jurisdiction. The case was before the county court for judgment, and if that judgment is final as to that court, there [303] is no reason for withholding from the circuit court the power to try the entire case, if, in his opinion, the county court had jurisdiction to probate the paper. It is, however, argued that the judgment upon the question of jurisdiction was not a final judgment, or one from which an appeal could be taken, .and the case of Benjamin’s Heirs v. DuBois, reported ■in 118 U. S., '46, is referred to as sustaining this view. It is said in that case, that a judgment or decree to be final, so as to give the court jurisdiction on appeals ■or writs of error from the Supreme Court of the District of Columbia, must be on its merits. That case has no application to the practice in this State, as appeals may be granted from orders of dismissal for want of jurisdiction, or for any othér cause where the amount in controversy is within the jurisdiction of the appellate court. The statute provides that the appeal in will cases shall be in five years after the judgment of probate or rejection, and this would apply, in so far as -the appeal is concerned, to the judgment refusing to probate for want of jurisdiction, and while the limitation applies to the appeal, it would not affect the right to probate in the court having the jurisdiction, as a judgment without jurisdiction .is a nullity. We must deny the request made for the writ.