Craighead v. Alexander

¶1delivered the opinion of the Court:

¶21. These appeals were argued by both parties, upon the as*234sumption that the report of the evidence taken below and made a part of the record by order of the court is properly before this court for review. A proceeding in a probate court is not a proceeding in equity, and final orders therein are only reviewable in accordance with the practice at common law. Ormsby v. Webb, 134 U. S. 47—65, 33 L. ed. 805—812, 10 Sup. Ct. Rep. 478; Campbell v. Porter, 162 U. S. 478—481, 40 L. ed. 1044, 1045, 16 Sup. Ct. Rep. 871. And the evidence in such cases must be brought up in a bill of exceptions. Whether the rule as to the bill of exceptions, which governs in all cases of contests of wills under a caveat, applies in a special proceeding of this kind, presents a question that seems not to have been raised before. In a summary proceeding to quash an attachment, it has been held that the evidence taken thereon must be embraced in a bill of exceptions. Wilkins & Co. v. Hillman, 8 App. D. C. 469—475. But in view of the fact that the practice had not been authoritatively settled, and that there was a virtual agreement between counsel as to the evidence, and the trial court had so certified, the report of the judge was received as the equivalent of a bill of exceptions in that case, with notice, however, that this action was not to be drawn into a precedent for the government of future cases. We would, for the same reason, be inclined, in this particular ease, to consider the evidence certified by the court; but we do not find it necessary to do so, or to decide whether a formal bill of exceptions is necessary in all similar proceedings. We therefore pass the question, with the suggestion that the safer practice will be, hereafter, to bring up all evidence taken in hearing's in probate by regular bill of exceptions.

¶32. We are of the opinion that the errors complained of by both sets of appellants can be determined by the pleadings. The right to the caveat is claimed under section 137 of the Code [31 Stat. at L. 1212, chap. 854], which reads as follows: “If, upon the hearing of the application to admit a will to probate, the court should decree that the same be admitted to probate, any person in interest may file a caveat to said will and pray that the probate thereof may be revoked at *235any time within three months after such decree, if it be a will of personal property, and as far as it is a will of personal property; and if it be a will of real estate, and as far as it is such will of real estate, any person interested actually served with process or personally appearing in such proceedings may file such caveat within one year after such decree; any person interested, who at said time was returned, ‘not to be found/ and was proceeded against by publication, may file such caveat within two years after such decree; and any person interested who, at the time of said decree, is within the age of twenty-one years, may file such caveat within one year after he becomes of age.”

¶4The object of the section is to extend to the persons coming within its description a certain period within which to contest a will that has been regularly admitted to probate. As to them the probate is not a finality until the expiration of the prescribed periods. Until then the right to the caveat is absolute.

¶5The section, it will be observed, gives three months to anyone in interest to file a caveat to a will, or to so much of a will as relates to personal property, while the one year within which to contest a will of real estate is extended to those interested, actually served with process, or appearing in such proceedings; two years to those who have not been found, and have been cited by publication; and to those under twenty-one years of age, one year after attaining that age. That the caveators are persons of interest, and as such entitled to file the caveat as to the will of personal property, seems clear.

¶6While a liberal construction would include them among those “personally appearing in such proceedings,” who are entitled to contest a will of real estate within one year, we need not now decide whether such construction should, or should not, prevail. As the caveat was not filed until more than three months after the order of probate, the allegations of fraud, practised in procuring the waiver of citation and service, were evidently made to excuse their failure to proceed within the statutory period; applying thereto, by analogy, the rule in re*236spect of the operation of statutes of limitation. Treating the allegation of the answer of the executors, that the questions raised were of law and not fact, and should be determined on the pleadings, as a demurrer to the petition, we think the court was right in dismissing so much of the caveat as related to the will as a will of personal property. Giving them the benefit of every inference reasonably deducible from the averments of their petition, the fraud perpetrated upon them was discovered immediately. They allege no fact from which it can be inferred that the mental condition of the testatrix or the undue influence alleged to have been practised by the principal legatee, were fraudulently concealed from them, or were not as well known to them on September 17, 1909, as they were on September 16, 1910, when their petition was filed. They delayed the assertion of their rights not only for three months thereafter, but also for one year lacking a day. The petition presents no reasonable excuse for this long delay.

¶73. The appeal of the executors from so much of the order as directed the petition to stand as a caveat to the will as a will of real estate must be dismissed. It was not a final order, and not such an interlocutory one as can be appealed from as a matter of right under the provisions of section 226 of the Code, regulating the appellate jurisdiction of this court. Dugan v. Northcutt, 7 App. D. C. 351—362. Having declined to entertain the,appeal of the executors in cause No. 2347, we, necessarily, are without the power to express any opinion respecting the effect of the receipt by Jesse V. A. Craighead of the legacy under the will, as an estoppel, or of the allegation of his readiness to return the same.

¶8For the reasons given, so much of the order as has been appealed from by the caveators in No. 2346 will be affirmed, with costs, and an order entered in No, 2347, dismissing the appeal of the executors.

¶9It is so ordered.