National Safe Deposit, Savings & Trust Co. v. Heiberger

delivered the opinion of the Court:

The act of June 8, 1898, makes material changes in the former law relating to the probate of wills. Section é regulates the presentation of the will, notice to all persons affected, and the action to be taken in the event there be no opposition. Under certain conditions therein named, summary probate and. record may be made by consent of the heirs-at-law and next of kin; but the section embraces a requirement of the former law in the following proviso: “ That in no case shall any will or testament be admitted to probate and record save upon formal proof of its proper execution.” (See also D. C. code, Sec. 135.) Subsequent sections regulate the proceedings where' a caveat shall have been filed; but the requirement of formal proof of execution is not affected thereby. The caveator expressly admitted the execution of the will in due compliance with the requirements of the law, and the issue submitted by her and adopted by the court assumes the fact.

The fact of formal execution was submitted by the proponent of the will as a distinct issue, and should have been acted upon in some way because, as we have seen, it cannot be dispensed with by the admission of the caveator or the consent of all concerned.

*521Although the statute is silent on the point, it would seem that, when not put in issue by the caveat, formal proof of the execution might properly be required before the formation of the issues of the controversy; for if execution cannot be proved the caveat would necessarily be abated. To defer the production of the proof of execution until after the determination of the issues formed under the caveat would be to reverse the logical order of procedure. At the end of protracted litigation, too, the necessary proof of execution might be more difficult.

The proponent was right, therefore, in submitting this preliminary issue, and the same, not having been disposed of as suggested, ought to have been included in those framed for submission to the jury. It is in the public interest that all questions touching the validity of a will offered for probate should, if practicable, be comprehended in one trial and settled by one judgment. The submission of .this issue, which the caveator does not controvert, would neither interfere with the proceedings of the actual trial nor deprive the caveator of her right to open and conclude that trial.

We are not advised that there was a settled practice under the former law in respect of the time when the formal proof of execution was required to be made, where a caveat had been filed which did not controvert the fact. But it is said that in one instance, at least, the proof was not required until after the trial of the controverted issues. It must be remembered, however, that no jury could be impaneled in the probate court under the former law. The issues framed under a caveat were transmitted to the circuit court for trial by jury. None other could be transmitted. The circuit court rendered no judgment upon the verdict, but certified the same to the orphans’ court. When received by the orphans’ court it could not be set aside, and was to be carried into effect by an appropriate decree. Perry v. Sweeny, 11 App. D. C. 404, 414, and cases cited. As the. question of formal execution, when not controverted, could not be transmitted for determination by the jury, and in the *522absence of statutory regulation, tbe time when it should be heard was necessarily a matter within the discretion of the orphans’ court, to be exercised under the special circumstances of each- case.

The broad issue relating to the actual controversy, that was submitted on behalf of the proponent, embodies the test of capacity to make a will that is prescribed in the probate act of 1798 as follows: “No will, testament or codicil shall be good or effectual for any purpose whatever, unless the person making the same be, at the time of executing or acknowledging it as hereafter directed, of sound and disposing mind, and capable of executing a valid deed or contract.” Chapter 101, subch. 1, par. 3. See also D. C. code, Sec. 1625.

The question for determination in all such cases is necessarily this: TIad the testator the testamentary capacity required by the statute ?

Though a man ordinarily of the requisite testamentary capacity, as is admitted in the caveat in this case, a testator, at the very time of the execution of a particular will, may have been suffering from acute mania as the temporary consequence of illness or intoxication, or he may have been under the influence of insane delusions with respect to his property or the natural objects of his bounty, as is alleged in this case; but each condition is evidence merely of the fact to be ascertained, namely, the want of the sound and disposing mind, which the law requires.

The.fact to be found by the jury is not that the testator was demented at the particular time from any cause, or that he was the victim of insane delusions with respect to his property or the natural objects of his bounty, but whether from any one or more of these conditions, tending to show which evidence may be introduced, he was not of sound and disposing mind and capacity to make a valid deed or contract.

In an earlier case, determined under the law requiring all issues to be transmitted to the circuit court for trial by jury, it was said — though the point was not necessarily involved — that there might arise cases in which it would be proper *523to submit a special issue based on the alleged existence of insane delusions of a testator of otherwise sound mind, which may have operated to take away his capacity to make the particular will in controversy. Safe Deposit Co. v. Sweeney, 3 App. D. C. 401, 404. But the formation of such an issue for transmission was expressly referred to as “ In addition and in subordination to the first,” or broad issue.

In accordance with this view there would seem no good reason why the issue as framed might not follow the broad issue if the caveator desires.

There is nothing, however, to prevent the caveator, under the broad issue alone, from confining her evidence on the trial to the alleged special incapacity by' reason of the insane delusions of the testator. In such event the court would instruct the jury in the law applicable to the particular phase of the case presented by the evidence, and direct them to find, as in the special issue framed, whether the testator was at the time of the execution of the will, “ under the influence of any insane delusion or delusions with respect to his property and the natural objects of his bounty, or either of them, which prevented him from then having a sound and disposing mind and rendered him incapable of executing a valid deed or contract, where the subject of said delusion or delusions was involved.”

If she shall obtain a verdict and judgment thereon, probate will be denied. If she shall fail, then the will ought to be admitted to probate once for all. As far as possible under the law there should be an end of litigation.

The policy of the old law was to comprehend all the issues relating to the validity of a will, as far as practicable, “ so that it may be definitely ascertained in a single proceeding, if possible, whether a paper, purporting to be of testamentary character, is or is not a valid instrument.” Dugan v. Northcutt, 7 App. D. C. 351, 365.

In that case it was held that a judgment admitting a will to probate, after verdict upon issues framed under the caveat of one party and transmitted to the circuit court for trial in accordance with the procedure at that time, concluded all *524persons in respect of any matter within the scope of the issues so determined.

The act of June 8, 1898 (see also D. C. code, Sec. 140), changes the former procedure in some important respects. Among these the issues when framed are to be tried by jury in the orphans’ court itself.

Section 6 of the above entitled act, concludes with the following, which is also embodied in section 140 of the code: “ In all cases in which such issues shall be tried the verdict of the jury and the judgment of the court thereupon shall, subject to proceeding in error and to such revision as the common law provides, be res judicata as to all persons, nor shall the validity of any such judgment be impeached or examined collaterally” (D. C. code, Sec. 140).

Referring to the foregoing it is said in the brief for the appellant: “ It will be observed that according to the above-quoted language the verdict and judgment are to be res judicata as to all persons, not the questions of the execution and validity of the will.”

It is not necessary, and would be decidedly inappropriate, to attempt to determine, now, whether an adjudication in favor of the proponent under the special issue as adopted in this case, would be res judicata as to all persons in respect of the general capacity of the testator to make the will. If not, then for the same reason, it would not bar a second caveat by this caveator filed within the statutory period. Assuming that it would not bar a second proceeding on the broader ground, the impropriety of limiting the issue to the narrow ground becomes manifest. It would be plainly against the sound public policy that reprobates repeated litigation, as well as detrimental to'the interests of the many legatees and devisees named in the will.

Nor the reasons given, the order appealed from will be reversed, with costs, and the cause will be remanded for further proceedings not inconsistent with this opinion. Reversed.