Hamberlin v. Terry , 8 Miss. 143 ( 1843 )

Mr. Chief Justice Sharkey

delivered the opinion of the court.

The appellants filed their bill in the superior court of chancery, against the executor of the last will and testament of John Pickens, deceased, and the legatees mentioned in the will, in which they allege that the testator was incapable of making a will, and that the same was procured by fraud. The prayer is, that an issue of devisavit vel non be directed, and that the will be set aside; and for an injunction against the executor who was about to sell the personalty. There was a demurrer to the bill, which the chancellor sustained, and dismissed the bill.

It was considered no doubt that the matter set out in the bill was properly cognizable before the probate court of the proper county, and that the chancery court had not jurisdiction. The powers and jurisdiction of the probate courts have undergone repeated adjudication in this court, and have been uniformly held to be full and complete, and even exclusive over all matters testamentary and of administration. The several decisions were reviewed in the case of Carmichael v. Browder, 3 Howard, 252. The conclusion in that case was, that a court of chancery could not take jurisdiction in any matter testamentary or of administration, unless upon the same principle that it always assumes jurisdiction over matters not peculiarly within its cognizance, to wit, the incompetency of the probate court to give ample relief. Then the question here is, has the probate court power to give relief? if so, the remedy is before that court. We think it undoubtedly has; and not only so, but that this is a matter peculiarly within its jurisdiction. It is a matter testamentary, and the cognizance of it was confided to that court by the constitution. Whilst the administration is pending, the executor is always subject to the jurisdiction of the probate court. He may be superseded at any time for good cause shown, and that court may inquire into the validity of a will, at the suggestion of any party interested. The first probate is a mere incipient step necessary to enable the court to adopt the means to carry it into execution; but it is not conclusive on heirs and distributees, and may be opened and if necessary set aside. If it be necessary to direct an issue of devisavit vel non, that court has the power and can exercise it, by sending the case to the circuit court. There is no allegation in the bill to exempt this case from the general rule heretofore laid down. This is not a matter of equity jurisdiction. Incidentally courts of equity may sometimes inquire into the validity of wills, but such inquiries are only incidental to enable them to give relief in matters where the jurisdiction is undoubted. But on a direct application for that specific purpose, courts of equity cannot interfere to set aside a will either for fraud or incompetency in the testator. Powell on Devises, 689, 690, 691; 2 Fonb. 318. Such questions belonged to the ecclesiastical courts in England, and they belong to the probate courts here.

Prior to the adoption of our present constitution, there was a statutory provision which authorized any party interested within a given time to file his bill in chancery to set asido a will, whereupon an issue was directed to be made up to try the validity of the will. But this was not a matter of equity jurisdiction; on .the contrary, it is testamentary in its character, and when the constitution gave to the probate courts full jurisdiction in all matters testamentary and of administration, this power was of course included in that general grant; and as the jurisdiction of the probate court is also exclusive, it follows as a matter of course that the law alluded to was virtually repealed by the constitution.

The decree of the chancellor must be affirmed, with costs.