Dugan v. Northcutt

delivered the opinion of the Court:

1. As we have stated, the greater part of the record before us is a transcript of the proceedings in the Circuit Court branch of the Supreme Court of the District of Columbia in the matter of the issues upon the question of the legitimacy of the appellee George H. Northcutt; and to the discussion of the points of law involved in those proceedings the arguments of counsel have been mainly directed. And yet it does not appear to us that we have jurisdiction to review that matter in this present appeal. Under the law of its creation, this court has appellate jurisdiction, in reference to the Supreme Court of the District of Columbia, to review only the final orders, judgments and decrees of that court, and certain specified interlocutory orders that do not concern us here; and we find in the present case no such order, decree, or judgment.

The appeal is from an order adjudging that the appellee has the right to have issues sent to a jury, and ordering that certain specified issues be sent. This is not a final order, decree, or judgment in any proper sense of those terms. The subject-matter of controversy before, the court was the validity of the will of Annie E. Northcutt.

*362The legitimacy or illegitimacy of the appellee has no direct bearing upon that subject. It does not tend of itself either to establish or to overthrow the will. The issue was wholly a collateral issue; and its determination did not affect any right of person or of property. Its result was merely to give the appellee a standing in court, and to become a party litigant. The adjudication, if the order can be called an adjudication, was no more than an order in equity allowing a person not named as a plaintiff or defendant to intervene in a suit. It may be that it will have no effect whatever on the subject-matter of controversy; for whether the will is. ultimately to be sustained or overthrown, the result must be due to causes entirely outside of the question of legitimacy. The legitimacy of the appellee may be a circumstance in the case and a factor in the result; but of itself it could no more show the invalidity of the will than his illegitimacy would tend to uphold -it. Like the question of the competency of a witness in the case, this matter, like all other incidental matters in the proceedings, may become the subject of review in this court, whenever the cause comes before us on appeal from some final order, decree, or judgment establishing the will or adjudging its invalidity. In the meantime, however desirable it may be to have a final determination of this special question, we are unable to find any authority in the law that would give us the right to pass upon the question at this time.

2. With reference to so much of the order appealed from as directs issues to be transmitted to a jury for trial and formulates the issues for the purpose, ignoring the previous issues and findings upon the same points, a very different question is presented.

Under ordinary circumstances, an order of the Orphans’ Court transmitting issues to the circuit court for trial before a jury, is only an interlocutory order, and no appeal will lie from it. It determines nothing; it affects no right; and consequently there is nothing upon which to base an ap*363peal. The sending of issues from the Orphans’ Court is a matter of right to the parties in interest, which that court is not at liberty to refuse. The act of Maryland of 1798, chap. 101, sub-ch. 15, secs. 16 and 17, is mandatory upon the subject, and does not leave it to the discretion of the court; and we have so held. In re Estate of Atwood, 2 App. D. C. 74. But when issues have once been transmitted and there has been a verdict of the jury upon them, and such verdict has been certified to the Orphans’ Court, this verdict, unless vacated by some proper proceeding for the purpose, is binding upon the Orphans’ Court and upon all the world; and it is the duty of the Orphans’ Court to enter judgment thereon in accordance with the verdict. Such verdict and judgment then become conclusive of the issues and the Orphans’ Court is not thereafter at liberty to direct any further or other litigation of the same issues at the instance of anyone. And we regard this question as very well settled by the terms of the statute, by reason, and by authority.

The statute provides that in case either party shall require it, the court shall direct an issue or issues to be made up and sent to a court of law, and shall give judgment upon the finding of the jury. This is plainly mandatory. And yet after all it requhes no more of the Orphans’ Court than it required of the courts of common law in respect of all verdicts. In the case of Van Ness v. Van Ness, 6 How. 62, the Supreme Court of the United States, dealing with this same subject and the construction of the act of 1798, said: “A verdict in any court of common law, if not set aside, is in all cases conclusive as to the fact found by the jury, and the judgment of the court must follow it; as the Orphans’ Court must follow the verdict in this case.”

In the case of Pegg v. Warford, 4 Md. 385, it was said by the court: “We hold, therefore, from the very nature of the thing, when a question is once submitted, so far as it is concerned, the functions of the Orphans' Court are suspended until the finding of the jury be certified, and when *364that is done, it has no discretion in regard to it, but is imperatively required to enter up judgment in conformity thereto. And as a consequence of this, where, on the application of one party, an issue is transmitted to a court of law for trial, the granting, on the application of another party, of substantially the same issue to be tried before another jury, is a mere nullity — a void act. On an appeal from an order of the Orphans’ Court awarding the same issue a second time, this court would be bound to denounce it as utterly void and of none effect.”

In the same case the court said also : “ No issue can be granted which substantially embraces the same question that has been pronounced upon by the jury; for their finding in regard to it is conclusive and binding on the whole world. Nor, for the same reason, can the same issue be granted on the several applications of different parties, unless they be joined as plaintiffs or defendants, so as to produce by the trial but one and the same verdict. Were different parties permitted to propound the same question to different juries, there might, and most probably would' be, different verdicts, and as an inevitable consequence, under the act of 1798, different judgments in the Orphans’ Court on the same matter. It would be absurd to impute such a folly to the act. Its purpose is to insure certainty ; and this cannot be accomplished if the same question be submitted to different juries.”

The same doctrine was substantially reaffirmed in the case of Worthington v. Gittings, 56 Md. 542 — although in this latter case the contested will had been admitted to probate upon the verdict of the jury upon the first issues before application was made by other parties for substantially the same issues to be tried on their behalf. In other respects, that case was not very unlike the one now under consideration. There a caveat had been filed to a will by two of the heirs-at-law of the deceased — their precise relationship, however, does not appear from the report of the case ; whereupon issues were sent for trial by a jury, and a *365verdict rendered in favor of the caveatees, in pursuance of which the will was admitted to probate. Subsequently the children of a deceased brother residing in a distant State, who had not been made parties to the proceedings upon the former caveat, either by name, citation, or publication filed a petition and caveat to the will, and requested issues to be sent for trial substantially the same with those which had been previously passed upon. But the court refused to send such issues, and its decision was sustained on appeal, notwithstanding that the petitioners had alleged that the verdict of the juiy upon the previous issues had been procured by agreement and fraudulent concert between the parties to the proceedings. It was held by the Court of Appeals of Maryland in that case, that, when probate had been passed and letters have been granted, after contest involving the validity of the will, no further proceeding in the Orphans’ Court touching that question can be had, unless the probate were first revoked for fraud or collusion, upon proper proceeding taken for that purpose.

Different issues, it is true, affecting the validity of the will on different grounds, may be successively sent to the same jury, or to different juries for trial, on behalf of the same or of different caveators, as often as the nature of the case is capable of generating issues. But it is the policy of the law to combine the issues as far as possible, and to require all the parties to join in them, who have filed caveats, so that it may be definitely ascertained in a single proceeding, if possible, whether a paper, purporting to be of a testamentary character, is or is not a valid instrument. But there is no warrant in law or in reason for the trial by a jury a second time of issues that have been legally determined by a jury. The theory of res adjudicata is against such a course; and it might perhaps be questioned whether such retrial would not be in violation of the constitutional provision that “ no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.” For it is not in accordance with the *366rules of the common law, that issues of fact once tried should be subject to be tried again, while the previous verdict upon them stands.

It is Intimated that great hardship might often result if the Orphans’ Court were absolutely bound by the verdict of the jury; that there might be newly discovered evidence ; that these issues are no different from issues sent from a court of chancery to be tried by a j ury; and that numerous circumstances and conditions might be imagined that would render it inequitable to enter judgment in accordance with the verdict. In this argument we have the assumption of incidental and equitable jurisdiction which the Act of 1798 denied to the Orphans’ Court in express terms. It is a grave misapprehension of the law, that issues from an Orphans’ Court do not differ in effect from issues sent from a court of chancery; they do differ fundamentally and radically. There is no law that requires a chancellor to send issues to a jury. It is so much or so little a matter of practice merely that it has now almost fallen into disuse and become a matter simply of tradition. And, as is well known, the verdict of the jury upon such issues is only advisory, and may be, and not unfrequently has been, wholly disregarded. Not so the verdict of a jury upon issues from the Orphans’ Court. The subject of these issues is regulated by a statute, which, as we have seen, is mandatory in its terms, and leaves no discretion to the Orphans’ Court. It might be that it would be wise to repose some equitable jurisdiction in the Orphans’ Court as now constituted in this jurisdiction; but it is sufficient for our present purpose to say that Congress has not yet thought proper to give it, or to modify in any manner in that regard the provisions and the limitations of the act of 1798.

Nor is it any hardship that by the finality of verdicts upon issues from the Orphans’ Court parties may be precluded from using newly discovered evidence. There is no good reason for refusing to give to this class of verdicts the same stability that is given to all others. There must be an end *367of litigation ; and causes can not be reopened indefinitely for newly discovered evidence. There may be such new evidence as would justify proceedings to have the probate of a will vacated ; but there should be proper proceedings to take advantage of it; and the arbitrary refusal of the Orphans’ Court to render judgment in accordance with a previous verdict of a jury is not such a proceeding.

So likewise parties are entitled to impeach the probate of a will and the verdict upon which it is based for fraud and collusion in their procurement; but such proceeding must be upon proper proceedings taken for the purpose. Worthington v. Gittings, 56 Md. 542, 549. And it may be added that, where the issues tried by the jury do not include all the issues that can properly and legitimately be formulated in the cause, it does not always follow that the paper must be admitted to probate because the verdict has been in favor of its validity upon the issues that have been submitted. In the case of Pegg v. Warford, supra, it was said:

“ It does not necessarily follow, because the finding of a jury on issues be as is desired by those at whose instance they may have been awarded, that the paper shall be admitted to or denied probate as the case may be. The finding of the jury may be affirmatively or negatively on the questions submitted, and yet such finding either way may not determine the question of the validity of the paper as a will; there may be other facts outside of the verdict and not inconsistent with it which will decide the question. For instance, a jury might find on an issue so framed that a certain paper, purporting to be a last will, was executed, duly attested, and published as such, and yet its final judgment might be against the paper as a valid will; because it might appear from testimony taken before the Orphans’ Court, or by the finding of another jury, that at the time of the execution and publication, the testator had not the requisite disposing capacity. And this being so, the Orphans’ Court have not only the right, but are bound to render their final judgment on the finding of different juries, *368where they have pronounced on different issues touching the same paper. They are also to consider all testimony adduced before them on the same subject which is not inconsistent with the finding of the juries. But so far as the facts covered by the verdicts are involved, they are settled unalterably by them, and all other facts contrariwise are to be disregarded.”

It has been urged, that because under some of the issues that were before the jury under the caveat of John McGrane in this case no testimony was offered, and the trial justice, in consequence of such total want of proof on the part of the caveator, who was the plaintiff in the issues, directed the jury to render their answers on those issues in favor of the caveatees, therefore there was no trial of those issues, and the Orphans’ Court is at liberty to have them tried again, or to formulate new issues on the very same subjects. This we conceive to be a very grave mistake. A verdict is no less binding and conclusive because rendered upon total failure of proof, or upon wholly insufficient proof, than it would be when following upon sharply contested and well balanced testimony. Indeed, it would seem that it ought to be more conclusive, if possible, in the former case. Of course, if the failure to adduce proof on the part' of a caveator is the result of collusion between the parties, or of circumstances and conditions amounting to fraud, actual or constructive, upon the rights of other parties affected thereby, such failure would constitute a good ground for proceedings to vacate the verdict. For, as is well known, fraud will vitiate everything ; and a verdict superinduced by fraud should not be permitted to stand. Whether the procurement of issues and their transmission to a jury for trial when the caveator who procures them has no testimony whatever for their support, and no reasonable expectation of obtaining any such testimony, and merely sues out the issues for the purpose of discrediting the will and with the vague anticipation, perhaps, that something might turn up to justify them, as is too frequently *369done, should not be regarded as a fraud upon the rights of other parties in interest who might honestly be entitled to litigate such issues, we are not here called upon to decide. Certainly, such a course is a fraud upon the court and upon the administration of justice, for which the abandonment of the issues before the jury is no more than proper reparation.

A question is also made upon the notice by publication that was given in this case upon the application of the executors for the probate of the will. The order of publication was inserted for three weeks in the Washington Law Reporter, and no other publication seems to have been made. This has been stigmatized as a travesty of justice. It may be that such a notice is very inadequate to reach the parties whom it is its apparent purpose to reach; but all notices by way of publication are imperfect and inadequate, and are only justified by the propriety of having the rights of persons present and within the jurisdiction secured or enforced against the absent or the unknown who cannot be reached by the regular process of the court. There is no more certainty that the absent or the unknown will be reached by notice in the newspaper of the largest circulation in the world than if it is inserted in a publication circulating almost exclusively among members of the legal profession, many of whom are on the alert to convey such notice to those whom, perhaps, it might not otherwise reach. Improvements in this method of notice can readily be suggested ; and it seems to be within the power of the courts to make them. But the method here used appears to have been the usual method for many years in the practice of the Orphans’ Court of the District of Columbia. No notice of the application for the probate of a will is required by the testamentary law; but there is a provision for such notice in the rules of the Supreme Court of the District of Columbia for the Orphans’ Court, by way of personal service of citation to the next of kin resident in the District, and, when any of such next of kin are *370non-residents, by publication in one or more newspapers printed or published in the city of Washington for such time and in such manner as the court may direct. The court in the present instance designated the Washington Law Reporter as the newspaper in which the notice should be inserted. We fail to see how this action can be regarded as implying a failure of jurisdiction on the part of the court to proceed, as seems to have been subsequently assumed. While publication was proper and the best possible publication should be secured, we know of no provision of law that makes the jurisdiction of the Orphans’ Court depend upon notice to the next of kin. And even if jurisdiction did depend upon it, that jurisdiction attached when any of the persons intended to be notified voluntarily came in and became actors in the proceedings as occurred in the present case. The issues on behalf of John McGrane and the proceedings thereon were regular; and the validity cannot be questioned because the notice by way of publication might have been defective or insufficient duly to warn others equally entitled to be made acquainted with the application for probate.

We are of the opinion that the order made by the court below on June 22, 1895, transmitting issues to the Circuit Court on behalf of the appellee, George H. Northcutt, was erroneous, and should be reversed and vacated. We think that, if the appellee has any good or reasonable ground whereon to impeach the proceedings had upon the caveat of John McGrane and the issues thereupon transmitted, for fraud or collusion, reasonable time and opportunity should be given to him for that purpose. And further, if he can formulate any further issues substantially different from those already tried and whereby the validity of the alleged will of Annie E. Northcutt may be affected, he should also have leave to file and prosecute such issues. But in the event of the failure of said appellee, within such reasonable time as may be prescribed by the court, to file such new issues, or to institute proceedings in due form for the impeachment of *371the proceedings had upon the petition and caveat of John McGrane, the Orphans’ Court should proceed forthwith to enter up its judgment or decree upon the verdict of the jury heretofore rendered on the issues transmitted to be tried on the caveat of John McGrane, and for the admission to probate of the will of the deceased Annie E. Northcutt.

The order of the court below appealed from is therefore reversed, with costs, in so far as it directs certain issues therein specified to be transmitted to a jury for trial; and the cause is remanded to that court for fiirther proceedings therein in accordance with law and in conformity with this opinion. And it is so ordered.

On December 6, 1895, Messrs. Glassie & Glassie, for the appellee, filed a motion for a rehearing. The motion was opposed by Mr. Shillington and Mr. Forrest, for the appellant.

On December 9, 1895, the motion was denied, Mr. Justice Morris delivering the opinion of the Court:

The motion for a rehearing in this case must be denied. We appreciate the hardships of the appellee’s being pre-. eluded from trying the issues requested by him; but the due administration of justice peremptorily requires that issues once tried by a jury should not be subject to be again tried by another jury at the instance of another person. We have pointed out the course to which the appellee may recur, in the event that he has reason to believe that he has been precluded from any just right to which he may be entitled; and we have no doubt that, if any good cause can be shown in the Orphans’ Court for vacating the proceedings upon the former issues, that court will not hesitate to vacate them.