Owens v. Waddell

Truly, J., delivered the opinion of the court. We see no reason to disturb the decree of the chancellor. The point pressed here with much force that the chancellor was without power to entertain such proceeding and render a decree therein in vacation was not presented with sufficient clearness by the demurrer to require the chancellor to postpone the hearing to a later date in-the absence of any request to that effect. The first ground of the demurrer avers want of jurisdiction in the court generally, denying the power of the court to entertain the petition, not because the hearing was in vacation, but by reason of a lack of power to grant the relief prayed for. There is no suggestion, and certainly no specific averment, that the jurisdici tion was challenged on the ground that the hearing was in vacation ; in fact, the whole trend of the record inclines us to believe that such could not have been the prime object of this ground of the demurrer. • The petition was made returnable to the regular term of the court, and was, by order duly entered on the minutes in term time, continued for hearing and determination to a stated date in vacation. No objection on the part of the executors or their counsel was made to this order. Subsequently, in vacation, they took part in the taking of depositions and entered into an agreement with opposing counsel that certain material matters of evidence might be considered on the hearing before the chancellor. At the hearing they made no application for postponement or delay, but, their demurrer being overruled, joined issue, the record recites, upon the merits and proceeded to a final determination of the question presented. They cannot now, having participated without objection in the trial, be heard to say that they were entitled to a delay or to additional time for the preparation of their case. An alleged error, not vital in its [316] nature, but arising merely on a point of practice, which might have been waived, and to which the attention of the trial -judge was not specifically directed, cannot, in fairness to him, be considered on appeal. We think none of the grounds of demurrer present any cause why the petition should have been denied. The chancery court is clothed with the fullest jurisdiction to determine all matters relating to the administration of estates, and is always open for the hearing of a petition by any one interested asking the construction of the last will of a decedent. Nor do we think the particular proceeding here presented comes within the purview of Code 1892, § 1922 or § 1961. The reason on which each of these statutes is based does not exist in this case. The estate is admittedly solvent, and no rights of creditors are involved or can be prejudiced. This is not a suit, within the meaning of the statute, such as may not be instituted against the executors of a last will and testament within the prescribed period; nor is it a proceeding instituted by a legatee or annuitant to compel distribution. Appellee does not stand in the attitude of either. She was granted by the terms of the will a “comfortable support” during her life; and in view of her advanced age, her helplessness, and her impoverished circumstances, it was manifestly the intention of the testator that this support should begin immediately upon his decease and continue so long as she should live. In view of the age and physical condition of appellee, as portrayed by this record, how idle and perfectly futile would have been this provision for her support, if the contention of the executors be true — that she must wait until the expiration of the statutory period mentioned in the sections cited, and then only recover at the end of a litigation with the executors! Such a course would inevitably tend to, and might absolutely, defeat the purpose of the testator — a purpose so worthy and so commendable that, in our opinion, under the peculiar circumstances of this case, the executors themselves, if in doubt as to their power, should have invoked the aid of the [317] court to enable them to carry into effect the generous impulse of the testator, tbe common benefactor of them all; for, in all human probability, before the tedious delays thus entailed upon appellee would have ended, she would have been removed far beyond the need of human help and beyond the fear of human niggardliness. The decree of the chancellor is manifestly correct from a legal view point and is in accordance with every dictate of justice and humanity. Affirmed.