Potter v. Adams' Executors

LEONARD, Judge,

delivered the opinion of the court.

This suit ought not to have been dismissed on either of the two grounds that have been suggested to us. The order of the Greene Circuit Court changing the venue was not a nullity ; that court had jurisdiction to make it for the causes stated in the petition, and the error, supposing it to have been one, as to the verification of the petition, was a mere irregularity in the proceedings and not a ground of nullity. The objection is that *162 the affidavit did not verify the existence of the alleged prejudice, but was confined to the party’s just cause to fear that he could not have a fair trial on account of it. Without undertaking to say whether the objection ought to have prevailed, if it had been made at the proper time and place, it is sufficient to remark that it ought to have been made at the time the petition was acted upon, and in the court required to act, and not held back to be made in the court to which the cause was removed. Such a course of practice ought not to be allowed; it answers no purpose of justice, and there is no reason for permitting it.

The defendant was estopped from raising the other objection upon which he insists. Whether the judge of the Greene probate court had authority in vacation to take the proof of wills, and supposing he had not, whether, if the proof was in fact made and administration de facto granted, the act was after-wards impliedly ratified by proceedings in term, both on the part of the court and the administrator, founded upon the assumption that the will was lawfully established, are questions that we are not called upon to decide here, and on which therefore we shall not volunteer an opinion. The alleged will had been proved de facto before a judicial officer, at the instance of the party who now makes the objection, and was, we may suppose, at the very time the objection was being made, treated both by the party himself who now makes the objection, and the court having jurisdiction over the matter, as a legally established will. Certainly, the executors can not be allowed to deny in the Circuit Court the existence of that which they are acting upon in the probate court — to insist in the latter court, by acting upon it as such, that the instrument is the established will of the supposed testator, and at the same time to deny it in the Circuit Court, in order to get rid of the only proceeding allowed by law, to determine whether or not it is his'will, and ought to be established as such. Besides, in the present ease, the party did not make the objection at the first opportunity he had, but allows an issue to be made up as to the validity of *163 the instrument, and after the proceeding has been pending in court for several years, turns upon the plaintiffs with the objection that no such issue ought to have been made, because it was not shown in the petition that the contested paper had been lawfully established as the will of the deceased. We can not allow such a course of practice without bringing reproach upon the administration of the law. If, in any stage of a cause, any thing occurs that renders further progress nugatory, a party may be allowed to bring it forward at any time for the purpose of arresting further proceeding ; and in the present case, if the allowance of the will had been rejected by the probate court in term, or if the grant of administration had been subsequently surrendered by the party and received by the court upon the ground that the original proceedings were irregular on account of their being transacted out of term, this matter might have been shown, and would, we suppose, have afforded a sufficient reason for dismissing the proceeding ; but that is not the case.

Again, it is said the suit was instituted prematurely, having been commenced immediately after the allowance of the will and grant of letters by the probate judge, and before the proceeding had been rejected or confirmed by the court at the succeeding term. The answer to this is, that the letters, granted in vacation, are not limited in point of time, so as to continue only to the succeeding term, and then expire, unless confirmed by the court. They are subject to the confirmation or rejection of the court, and it is the duty of the court to pass upon them ; but they are valid until they are rejected. If the proceeding of the probate judge allowing this will and granting letters upon it had been rejected by the court, then the issue asked by the plaintiffs whould have been unnecessary, and so would the trial of the issue, if the issue itself had already been allowed and made up ; but nothing of that kind is pretended here. The judgment must be reversed, and the cause remanded.