Matthews v. Sontheimer , 39 Miss. 174 ( 1860 )

Handy, J.,

delivered the opinion of the court:

This was a petition in the Court of Probates of Holmes county, filed by the plaintiff in” error, one of the heirs at law of Hugh Johnson, deceased, in behalf of herself and the other heirs, against the defendant in error, for the purpose of having an instrument set aside and vacated which had been admitted to probate as the last will and testament of the said deceased.

The petitioner states, in substance, that the defendant had, by undue influence upon the deceased, and by fraudulent means, procured him to execute the will in controversy, whereby he directed the payment of a large account which the defendant had falsely raised against him, and left the defendant one of his executors. The particulars of this alleged fraudulent scheme are fully set out, and a copy of the will is exhibited. In order to show that the petition was filed in due season, the amended petition states that the fraudulent acts of the defendant were so concealed by him that neither the petitioner nor any of the other heirs could, with reasonable diligence, have discovered the same until it was developed by accident in the month of December, 1859 ; that every thing appears fair in the record, so far as the probate of the will is concerned, and that the manner of obtaining the said will was studiously and fraudulently kept concealed by the defendant, and there being no clue left by him, it was a matter of impossibility for any one ignorant of the facts to have discovered them sooner.

The defendant demurred to the petition, on the following grounds:

1. That it was barred by the statute, not having been filed within two years after the probate.

2. That it is not alleged that reasonable diligence was used within two years after the probate to discover the alleged fraud in procuring the will to be executed.

3. That the original and amended petitions are multifarious, in seeking to set aside the will as fraudulent, and in charging that the defendant’s account against the deceased is false, and in seeking discovery as to both of these charges.

4. That the petition is not verified by the affidavit of the petitioner.

This demurrer was sustained, and the petition dismissed; and to that decree the petitioner prosecutes her writ of error.

A preliminary objection is taken in behalf of the defendant in error, that the writ of error is irregular, because the mode of having a decree of the Court of Probates revised in this court is by appeal taken in accordance with the statute, Rev. Code, 430, Art. 28, and not by writ of error.

It is true that this statute authorizes an appeal from such decrees in the mode prescribed by it. But the statute, 563, Art. 9, also authorizes any party to “ a judgment of any inferior tribunal from which a cause may be taken to this court,” to “petition the clerk of the court, where such judgment or decree was rendered, for the issuance of a writ of error, which writ it shall be the duty of such clerk to issue,” &c. The word “ judgment” in the former part of this section is used in the more general sense, to embrace a final adjudication of any inferior tribunal from which a cause may be taken to this court; and this is plain from the use of the words “judgment or decree,” in the subsequent parts of the section, showing that the writ of error lies as well to decrees as to judgments, wherever the cause may be taken to this court for review.

Again, it is insisted that the demurrer was properly sustained, because the petition does not allege that the will had been admitted to probate, or in what court, or at what time; and that these things do not appear by the copy exhibited with the petition.

This objection is not made a ground of demurrer, and appears to be taken in this court for the first time. The demurrer being-taken for causes specially assigned, no objection would be indulged here other than those specified, unless it 'was vital to the legal merits of the cause, and appeared to be of such a character that it could not be cured by amendment. This objection does not appear to be of that character; for the petition, in several places, refers to the will as " admitted to probate,” “ the record of the probation of the will,” &c. The deceased had his domicile in Holmes county, the will purports on its face to have been executed there, and the copy is made and certified as made from the record of the Probate Court of that county. Under such circumstances, it is fair to presume that the facts, though not positively alleged, do exist; and as no objection was taken by the demurrer on the ground of the absence of the proper allegations of these things, none can be now entertained here.

The first ground of demurrer, and that chiefly relied on, is, that the petition was not filed within two years from the date of the probate of the will, and was, therefore, too late, under the provision of the statute, Rev. Code, 434, Art. 43. But this objection could not be maintained; for the date of the probate is not stated in the petition nor in the copy of the will exhibited with it. Though the objection might have been set up by plea or answer, yet, as it did not appear in the petition or exhibit, it could not be taken advantage of by demurrer.

But the question is presented and argued by counsel for both parties, whether — assuming that the matter comes within the operation of the statute in the Rev. Code, 434, Art. 43, as to the period within which the petition must have been filed, and that it was not filed within two years from the date of the probate— the averments of the petition as to concealment of the alleged fraud and the excuse for not ascertaining it and filing the petition at an earlier time and within the period prescribed, are sufficient to bring it within the proviso of the statute. This question is raised by the second ground of demurrer.

In discussing this, counsel for the defendant in error insists, in the first place, that the petition really contains no charge of fraud.

If this objection were properly the subject of consideration under the causes of demurrer assigned — as it appears not to be —the allegations of the petition sufficiently charge fraud in procuring the will, on the part of the defendant. They are, in substance, that he had a false and pretended debt against the testator to a large amount, and, to suit his own purposes, had the will written and caused it to be executed by the testator, who was totally ignorant of its contents. By this will the defendant was made one of the executors, and was authorized to take all the testator’s property at the amount of a cash valuation to be made by commissioners to be appointed by the Court of Probates for that purpose; and after paying all his debts, to distribute the balance to his relatives in a specified way. The petition that this will the defendant the slaves of the testator by means of the large debt which he bad falsely brought forward against him, which he was enabled to use to that end, as be was executor of the will, and that it was the consummation of a course of fraud and imposition which the defendant had been practising upon the testator for several years, by pretended friendship, furnishing him with ardent spirits, and encouraging him to drink until be became imbecile and came to his death.

The proviso of the statute is, “that in case of a concealed fraud, the limitation provided by this article shall commence to run at, and not before, the time at which such fraud shall be or with reasonable diligence might have been first known or discovered.” The averments of the petition appear to come fully within this proviso. They are, that the fraudulent acts of the defendant were so concealed by him that neither the petitioner nor any of the other heirs could with reasonable diligence have discovered the same, until it was developed by accident in December, 1859. It is not stated bow the fraudulent acts were concealed, nor was that practicable, from their nature as charged in the petition. As alleged, they were in their nature secret acts, not open to view, and leaving no trace by which they could be detected. There appears to have been nothing remaining to bring to tbe notice of tbe petitioner tbe undue influence exerted by tbe defendant upon tbe testator — nothing to give her notice of tbe false account wbicb be bad raised against tbe testator, or of tbe mode in wbicb be expected to get possession of tbe property as charged in tbe petition. Every thing appeared fair on record, and all tbe ordinary means of obtaining any knowledge of the facts constituting tbe fraud were beyond tbe power of tbe petitioner. Tbe only source of information wbicb tbe nature of tbe case could suggest are tbe subscribing witnesses to tbe will, and it does not appear, and is not probable, that they bad any knowledge of tbe principal facts alleged to constitute tbe fraud. Under such circumstances, it is very manifest that tbe alleged fraudulent facts consist entirely of private and secret acts of tbe party charged, of wbicb no trace was left at all calculated, for aught that appears, to awaken suspicion or to excite inquiry. Hence the allegations by way of excuse for- not filing the petition within the usual time prescribed are amply sufficient.

The circumstances of fraud in this case are quite different from those in the case of Buckner & Stanton v. Calcote, 28 Miss. R. 432. In that case the parties were charged with having concealed and secreted their property, of which, to a- large amount, they continued in possession, and had fraudulently failed to return it in their bankrupt schedules. And with reference to this state of case it is said: “ Eor aught that appears by the bill, the' frauds might have been as well discovered by the exercise of due diligence within eighteen months after their commission, as within eighteen months before the filing of the bill, (the period of discovery stated in the bill.) Erom their nature, as charged, they were open and entirely capable at all times of being detected.” 598. But when it appears, from the nature of the fraud charged, that it consists, in its principal characteristics, of secret acts of the party and his agents, not open to observation, with nothing reasonably leading to inquiry or suspicion, it would be to hold such a fraud its own protection to say that the averments of excuse in this case were not sufficient, and to render the proviso of the statute nugatory.

The objections on the ground of multifariousness and the want of an affidavit are not tenable. As to the former, the allegation as to the false account is but part of the circumstances constituting the alleged fraud; and as to the latter, the statute does not require an affidavit to the petition, nor is it necessary, according to the practice in analogous cases. But if it were necessary, it is made by the agent of the petitioner, who is empowered by the-statute to make it. Rev. Code, 516, Art. 223.

The decree is reversed, the demurrer overruled, and the cause remanded, and the defendant required to answer the petition within sixty days.