Hembree v. Bolton , 132 S.C. 136 ( 1925 )

This is an action for the partition of certain real estate, which, at the time of her death in 1904, belonged to Frances Hembree. The plaintiffs and the defendant, Pauline Bolton, are the heirs at law of Mrs. Hembree; the defendant, Galbraith, is a grantee of Pauline Bolton. Mrs. Hembree left a will which was admitted to probate in common form, in 1904, shortly after her death. The will as originally drawn, written in long hand by a scrivener who was also a witness, contained this clause, which was practically the entire will, with the exception of the formal parts:

"I give and bequeath unto my beloved husband my entire estate during his lifetime, and after his death I give and devise the said estate to my unmarried children so long as one remains unmarried. Then in case, if it so be that anyone of my unmarried children comes in and takes care ofme and my beloved husband in our old age, that one shallfall heir to my entire estate."

When the will was presented for probate, it was shown that a pen had been drawn through the prefix `un' to the word `unmarried', in the underscored portion of the foregoing extract, making it read:

"Then in case, if it so be that any one of my married children comes in, etc."

In this condition the will was admitted to probate and recorded in Will Book, as if it had originally read "married children," no defense having been made to the obvious alteration. No objection appears to have been entered to the probate of the will, and no proceedings have been prosecuted to require the proof of the will in due form of law.

At the time of the death of Mrs. Hembree in 1904, there were four unmarried children living with their parents; the defendant, Pauline Bolton, was then about 15 years old. Mr. Hembree married a second time about the year 1906, and his second wife died in 1911. Pauline lived with her father before and thereafter, until his death in 1921, marrying about a year after his death.

It is conceded on all sides that if the disputed word should be held to be "married", not one of the married children complied with the condition named in the will of taking care of the old people so as to entitle them to claim the benefit of the provision above quoted, and that, therefore, the estate would be considered intestate property, distributable among the heirs at law.

The plaintiffs contest the claim of Pauline Bolton, contending that the word must be held to be "married", and that even if it should be held to be "unmarried", she did not comply with the conditions named.

Pauline Bolton contended that the word should be held to be as originally written in the will, "unmarried", and that she as an "unmarried child" had fully complied with the conditions of the will, which entitles her to the entire estate.

The case was referred to the Master, who filed a report holding, in effect, that the alteration from "unmarried" to "married", had been made after the execution of the will; that the word must remain as originally written, "unmarried"; and that as Pauline Bolton, as an "unmarried child," had complied with the conditions of the will, she was entitled to the entire property. The Circuit Judge, in a brief and formal decree, confirmed the report of the Master. The plaintiffs have appealed.

In the view which this Court takes of the legal issues involved, it is not deemed necessary to decide the contested issue of fact, whether Pauline Bolton, as an unmarried child, came in and took care of the testatrix and her husband in their old age. Whether that issue should be decided in her favor or against her is entirely immaterial, if she has failed to bring herself within the class of children defined in the will. Having come to the conclusion, for the reasons hereinafter stated, that the word in dispute must be held to be "married", it may be assumed as a fact that Pauline Bolton, as an "unmarried" child, performed the services referred to in the will, without concluding the right of the plaintiffs to partition, for such decision is conclusive against the claim of Pauline Bolton, she not being a "married child" at the time they were rendered.

Upon the trial before the Master, the defendant, Pauline Bolton, offered the testimony of the scrivener of the will, who was also an attesting witness thereto, who testified, in rather an indifferent manner, that when he had finished writing the will and it had been signed by the testatrix, the deletion of the prefix "un" to the word "unmarried", had not been made. This testimony, upon objection by the plaintiffs, was at first rejected by the Master, but at a later stage of the trial he reversed his ruling, and received and considered it.

As before stated, the will was admitted to probate in common form, upon the affidavit of the scrivener as one of the witnesses. The alteration appeared plainly upon its face. The Probate Judge passed the usual order admitting the will to probate, and recorded it in the Book of Wills, as a copy of the will "admitted to probate," pursuant to Section 2191 of the Code. It was probated and recorded as if it had read "married", without any alteration. No question was made at that time, or at any time thereafter within the four years allowed for probate in due form of law (commonly referred to as "solemn form," Section 5351). Nineteen years after the probate in common form was had, in a collateral proceeding, the objection to the will as probated and recorded, is sought to be raised, that the alteration was made after the execution of the will, and that, therefore, the will as probated and recorded is not the will of the testatrix, but that the true will is fixed by disregarding the alteration.

There can be no controversy, we think, over the proposition that the action of the Court of Probate, in admitting a will to probate in common form, is an adjudication by that Court of a matter within its jurisdiction.

The statute, Section 5351, provides for proof required in the probate of a will in common form, and declares that, "If such proof shall satisfy the Judge of Probate that the paper is the last will and testament of the deceased, he shall admit it to probate in common form," which, of course, can only be evidenced by an order, a decree, a judgment of that Court.

In Crosland v. Murdock, 4 McCord, 217 (quoting syllabus), it is held:

"The power of the Court of Common Pleas in cases of appeals from the ordinary of questions in relation to the validity of wills, is entirely appellate, though the matter is examined over de novo, and the verdict of the jury is not more conclusive against a devisee, than the decree of the ordinary. It is but the judgment of the Ordinary."

In 40 Cyc., 1223, it is said:

"The term `probate' * * * relates to proving and establishing a will before the officer or tribunal having jurisdiction to determine its validity, and as there used, it includes, not only the evidence, jurisdictional and otherwise, presented to the Court, but also the judicial determination bythe Court on that evidence, that the instrument is what it purports to be."

At page 1370, it is said:

"As a proceeding to probate a will is a judicial one, a judgment or decree admitting a will to probate stands upon the same footing as a judgment of any other Court of competent jurisdiction; and after the lapse of time allowed to have it annulled or set aside * * * it stands as an adjudication that the instrument probated is the last will andtestament of the deceased and is conclusive of all matters properly before the Court for determination."

Section 5351, Subd. (2) of the Code of 1922, provides:

"Probate in common form shall be good, unless some person * * * interested to invalidate the said paper as a will shall give notice to the Judge of Probate, within four years next after such probate * * * that he * * * requires it to be proved in due form of law"; which clearly recognizes the action of the Probate Court as a judgment, standing good for all time, with the exception stated.

The probate of a will in common form, being the judgment of a Court of competent jurisdiction, is entitled to the respect accorded to the judgments of all Courts of like character; namely, that it is conclusive of all matters directly connected with the passing of the judgment, and that it is immune from attack in any collateral proceeding.

The first question, therefore, for determination is whether the admission to probate of a will, with an apparent alteration on its face, probated and recorded in a manner giving effect to that alteration, will be held to have carried with it the finding, essential to its probate in said altered form, either that the alteration was made before the execution of the will, or that the will was republished after the alteration.

Upon application for the probate of a will in common form, the Probate Court is expected to find these facts before issuing its order: (1) That the testator signed the will: (2) that it was signed in the presence of three witnesses who attested it in his presence and in the presence of each other; (3) that the testator was at the time, of sufficient legal capacity to make a will; (4) that he was free from undue influence, fraud or imposition in making his will; (5) that the paper produced, just as it appears, is the will actually executed by the testator.

That the Probate Court has the power, and is under an obligation, to inquire into an obvious alteration appearing upon the face of the will, in order to determine the question whether the paper produced was the will of the testator as it stands, and if not, to establish what was the will, I do not think we can admit of doubt.

In Guerin v. Hunt, 118 S.C. 32; 110 S.E., 71, the Court, in an exceedingly able opinion by Hon. E.M. Rucker, Acting Associate Justice, concurred in by the Chief Justice and Justices Watts, Fraser, and Cothran, held:

"There can be no question that an attesting witness must be prepared to attest not only the mere fact of signature, but, in the presence of evident alterations, that the paper produced was the paper executed, and that the condition it is in when produced was its condition when executed."

"Where interlineations are made in a will after its execution, they do not destroy the will as a whole, but each provision of the will annulled by such interlineation should be set forth on the probate of the will" (In re Stickney'sWill, 41 Misc. Rep., 70; 83 N.Y.S., 650), which, of course, could not be done without an inquiry by the probating officer, as to the time the alteration occurred.

If, therefore, the validity of the alteration should, or even could, have been brought in issue before the Probate Court, on the application for probate of the will in common form, under the principles announced in Johnston-CrewsCo. v. Folk, 118 S.C. 470; 111 S.E., 15, the adjudication of the Probate Court is res adjudicata, until it shall have been reversed by a proceeding to prove the will in solemn form.

If the Probate Court is expected to establish the facts above stated, before admitting the will to probate in common form, it follows that his decree speaks the verity of these facts. In Del Campo v. Camarillo, 154 Cal., 647;98 P., 1049, it is held:

"A valid and effectual probate of a will operates to establish the will according to its tenor."

"The probate of a will by a Court of competent jurisdiction is conclusive of the validity and contents of thewill. Box v. Lawrence, 14 Tex., 545.

"The probate of a will before the Clerk in common form is conclusive evidence of the validity thereof until [it] is vacated or declared void by a competent tribunal."Holt v. Ziglar, 163 N.C. 390; 79 S.E., 805.

"A judgment of the Circuit Court, admitting a will to probate, is conclusive as to the validity of the will." Bowenv. Allen, 113 Ill., 53; 55 Am. Rep., 398.

"Probate in common form becomes conclusive after the lapse of time allowed by law." Sutton v. Hancock,118 Ga. 436; 45 S.E., 504.

"A decree admitting a will to probate is conclusive upon the world, and is conclusive upon one who was not privy to the proceeding, being one in rem." Bunce v. Galbrath,268 Pa., 389; 112 A., 143.

"The only difference between the finality of probate in solemn and common form, is as to the time when the probate becomes conclusive; probate in solemn form becoming conclusive on the rendering of the decree to that effect, while probate in common form becomes conclusive on the expiration of the time fixed by statute for contesting wills after its probate." Horton v. Barto, 57 Wn., 477;107 P., 191; 135 Am. St. Rep., 990.

In Linnard's Appeal, 93 Pa., 313; 39 Am. Rep., 753, it is said:

"Moreover, the probate of the will as we now find it, was an adjudication of its due execution, including by necessary implication the republication of the instrument after the alteration in question was made. This established,prima facie at least, the validity of the of the legacy. * * * In the distribution of the estate, the will was before the Court for consideration, and as a guide in determining who were entitled to participate in the fund; but the question of its due execution, in whole or in part, did not properly arise in that proceeding. That matter had been adjudicated and no appeal had been taken."

In Gaines v. New Orleans, 6 Wall., 642, 703 (18 L.Ed., 950), it is held:

"When a will is duly probated by a State Court of competent jurisdiction, that probate is conclusive of the validity and contents of the will in this Court."

"The proponent of a will has the burden of showing that an alteration was made before execution, but after probate the will as probated is presumed to be valid." 2 Schouler, Wills, § 782.

"The effect of probate, indeed * * * is to authenticate the formal disposition made by decedent as his last will, with all due formalities." 2 Schouler, Wills, § 825.

"The propounding of a will for probate * * * is a judicial act and binding upon all Courts and persons and presumed to be legal until revoked or set aside." Note 21 L.R.A., 680.

"Ex parte probate ascertains nothing further than theprima facie validity of the will, and that the instrument is seemingly what it purports to be on its face." Note 21 L.R.A., 684, citing cases.

"It [probate] settles the question that it is the will of the testator." Strong v. Perkins, 3 N.H. 517.

"The Probate Court is vested with full power to inquire into the sufficiency of the authentication and to ascertain whether, under the proof offered, the will should be admitted to record." Note 21 L.R.A., 681, citing Callowayv. Cooley, 50 Kan., 743; 32 P., 372.

The will, as probated and recorded, giving effect to the alteration, stands for the further reason in this case. The probate, being the judgment of a Court of competent jurisdiction, cannot be impeached in a collateral proceeding, except upon the ground of fraud or want of jurisdiction.

"The judgment of probate has the force of an adjudication in rem, and is conclusive until set aside by appeal or other direct attack, and cannot be collaterally attacked, where the Court had jurisdiction." Schouler, Wills, § 827.

It would be a useless waste of time and space to cite the unbroken line of authorities sustaining this proposition.Upson v. Horn, 3 Strob., 108; 49 Am. Dec., 633; Decennial Dig. Wills, 421; Decennial Dig. Judgments, 470.

The statute, Code, § 5351, above quoted, is conclusive upon the proposition, for it specifically provides that the probate in common form shall be good unless a proceeding to require proof in due form of law be commenced within four years from the date of the probate.

The judgment of this Court should be that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for partition as prayed for.