PRESENT: All the Justices
KATHY MATTHEWS, ET AL.
OPINION BY
v. Record No. 081251 JUSTICE S. BERNARD GOODWYN
APRIL 17, 2009
INGEBORG D. MATTHEWS
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
F. Ward Harkrader, Judge
In this case, we consider whether the circuit court erred
in failing to dismiss a probate appeal when the party appealing
the probate order of the clerk had also submitted a different
will for probate.
On October 3, 2005, Donald A. Matthews, Sr. (Matthews)
died, leaving a wife and three children from a prior marriage.
Allan Scott Matthews, his son, qualified as administrator of
Matthews’ estate in the Circuit Court of Spotsylvania County on
December 28, 2005. Allan Scott Matthews declared that his
father died intestate and named himself, his two siblings,
Donald A. Matthews, Jr., and Kathy L. Matthews, and his
stepmother, Ingeborg D. Matthews (Mrs. Matthews), as his
father’s heirs.
On February 1, 2006, Mrs. Matthews attempted to probate a
last will and testament of Matthews that was dated July 18, 1995
(the 1995 will). Mrs. Matthews explained to the clerk that the
original of the 1995 will had been inside a safe that was
stolen; the clerk refused to probate the 1995 will because it
was a copy. Later that day, Mrs. Matthews returned to the
clerk’s office with the original of a will executed by Matthews
on February 8, 1993 (the 1993 will). The clerk probated the
1993 will. In effect, both wills left one dollar to each of the
three children and the remainder of Matthews’ estate to his
wife.
Kathy Matthews and Donald Matthews, Jr. 1 (the children),
filed a bill to impeach the 1993 will, claiming that it was
invalidated by the express terms stated in the copy of the lost
1995 will, and because the 1995 will had been refused for
probate, their father died intestate. Mrs. Matthews filed an
Answer and Grounds of Defense to that bill to impeach. She also
later timely filed an appeal from the clerk’s order denying
probate of the 1995 will.
The children filed a motion to dismiss Mrs. Matthews’
appeal of the clerk’s order regarding the 1995 will because Mrs.
Matthews had offered the 1993 will for probate. The circuit
court denied the motion to dismiss. The children’s devisavit
vel non action and Mrs. Matthews’ appeal of the clerk’s order
regarding the 1995 will were consolidated for trial. 2 The
1
Allan Scott Matthews did not participate in the suit.
2
Donald A. Matthews, Jr. died and his wife, Julie A.
Matthews, the administrator of his estate, was substituted in
his place.
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children agreed to this consolidation and the matters were set
jointly for trial with a jury.
At trial, Mrs. Matthews offered evidence related to the
loss of the 1995 will. Mrs. Matthews testified that her husband
put the original of the 1995 will in the family safe. A police
officer testified that a safe belonging to Matthews and Mrs.
Matthews was stolen from the home. Mrs. Matthews stated that
she saw the 1995 will in the safe two weeks before the burglary.
The children argued that Matthews died intestate because the
copy of the 1995 will expressly invalidated the 1993 will, but
the original of the 1995 will was not found among Matthews’
papers at the time of his death.
At the close of trial, the circuit court granted a directed
verdict on the validity of the 1993 will, ruling that it was not
the decedent’s last will and testament. The jury found that the
1995 will was Matthews’ last will and testament, and the circuit
court entered judgment consistent with that verdict. The
children appeal.
Analysis
On appeal, the children assign error to the circuit court’s
denial of their motion to dismiss Mrs. Matthews’ appeal of the
clerk’s order denying probate to the 1995 will. The children
claim that Mrs. Matthews forfeited her statutory right to timely
appeal the clerk’s order concerning the 1995 will by offering
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the 1993 will for probate. They assert that because of Mrs.
Matthews’ election to probate the 1993 will, her appeal of the
clerk’s order regarding the 1995 will operated as an
impermissible collateral attack upon the validity of the 1993
will, resulted in Mrs. Matthews approbating and reprobating
because she assumed mutually contradictory positions, and was
barred by judicial estoppel. Mrs. Matthews asserts that her
appeal of the clerk’s order concerning the 1995 will was not a
collateral attack upon the clerk’s order concerning the 1993
will, her positions are not impermissibly inconsistent and
judicial estoppel does not bar her appeal of the clerk’s order
regarding the 1995 will.
The clerk of any circuit court has the jurisdiction to
probate wills, within his respective territorial jurisdiction,
as defined by law. Code § 64.1-77. In admitting a will, the
clerk “acts in a judicial capacity and the order made by him,
admitting or rejecting a will, is as much a judgment as though
entered by the court.” First Church of Christ v. Hutchings, 209
Va. 158, 160, 163 S.E.2d 178, 179-80 (1968). The validity of
this judgment may only be drawn into question “in the manner and
within the time prescribed by law.” Id. at 160, 163 S.E.2d at
180.
Under Code § 64.1-78, any interested person may appeal a
clerk’s order within six months after the entry of such an
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order. After entering the appeal, the circuit court shall hear
and determine the appeal “as though it had been presented to the
court in the first instance.” Id. At the same time, a person,
who is not a party to the probate of a will, may bring a bill to
impeach the will under Code § 64.1-88. After a bill to impeach
is filed, that statute provides that a trial by jury shall be
ordered to ascertain the validity of the will admitted to
probate by the clerk. Id.
The children argue that Mrs. Matthews’ appeal of the
clerk’s order denying probate to the 1995 will was an improper
collateral attack upon the 1993 will and the clerk’s order
admitting it to probate. A collateral attack is an attempt to
impeach a judgment in a proceeding not instituted for the
purpose of annulling or reviewing that judgment. See Sutherland
v. Rasnake, 169 Va. 257, 266-67, 192 S.E. 695, 698 (1937).
Thus, the alleged collateral attack must be upon the clerk’s
order to probate the 1993 will.
The children brought a bill to impeach the 1993 will as
statutorily allowed by Code § 64.1-88. Thereafter, Mrs.
Matthews appealed the clerk’s refusal to probate the 1995 will
as she is statutorily allowed to do. Therefore, prior to Mrs.
Matthews’ appeal, the clerk’s order concerning the 1993 will had
been directly attacked by the children through their bill to
impeach. Pursuant to Code § 64.1-88, upon the children’s direct
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attack upon the clerk’s order concerning the 1993 will, the
will’s validity was to be ascertained in a trial by jury. We
hold that under the circumstances, Mrs. Matthews’ appeal could
not be and was not a collateral attack upon the clerk’s order
regarding the 1993 will.
The children also claim that Mrs. Matthews’ appeal should
have been dismissed by the court because she approbated and
reprobated by offering both the 1993 and 1995 wills for probate.
Mrs. Matthews claims that she did not approbate and reprobate
because the children’s challenge to the clerk’s order concerning
the 1993 will and her appeal of the clerk’s order concerning the
1995 will were not the same litigation, but rather separate
cases consolidated for purposes of trial. Further, she claims
that she merely sought alternative outcomes available to her,
without taking impermissibly inconsistent positions.
A litigant is not allowed to “approbate and reprobate.”
Hurley v. Bennett, 163 Va. 241, 252, 176 S.E. 171, 175 (1934).
This Court has stated that a party may not “in the course of the
same litigation occupy inconsistent positions.” Id.; see also
Rowe v. Commonwealth, 277 Va. ___, ___, ___ S.E.2d ___ (2009)
(this day decided) (citing Cangiano v. LSH Bldg. Co., 271 Va.
171, 181, 623 S.E.2d 889, 895 (2006) and Powell v. Commonwealth,
267 Va. 107, 144, 590 S.E.2d 537, 560 (2004)). It is improper
for a litigant to invite error and take advantage of the
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situation created by her own wrong. Rowe, 277 Va. at ___, ___
S.E.2d at ___; Fisher v. Commonwealth, 236 Va. 403, 417, 374
S.E.2d 46, 54 (1988).
The prohibition against approbation and reprobation forces
a litigant to elect a particular position, and confines a
litigant to the position that she first adopted. Hurley, 163
Va. at 252, 176 S.E. at 175. Mrs. Matthews was first the
proponent of the 1995 will, so if she did approbate and
reprobate, the remedy would not be to dismiss her appeal, but
rather to confine her to the position she first adopted as
proponent of the 1995 will. The jury found the 1995 will to be
valid.
Further, if the children’s bill of impeachment and Mrs.
Matthews’ appeal of the order concerning the 1995 will are
considered to be the same litigation, Mrs. Matthews essentially
sought alternative theories of recovery, as prescribed by the
statutes governing the probate of wills in the Commonwealth, and
permitted by Rule 1:4(k). See Code § 64.1-77; Code § 64.1-88;
Rule 1:4(k). Rule 1:4(k) allows a party to “plead alternative
facts and theories of recovery” as long as the alternative facts
“arise out of the same transaction or occurrence.” It further
provides that “[a] party may also state as many separate claims
or defenses as he has regardless of consistency and whether
based on legal or equitable grounds.” Rule 1:4(k). Reading
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previous cases in concert with this Rule, a litigant who takes
inconsistent positions must also invite error and take advantage
of the situation created by the inconsistency in order to
approbate and reprobate. See Hoar v. Great Eastern Resort
Mgmt., 256 Va. 374, 382 & n.7, 506 S.E.2d 777, 782 & n.7 (1998)
(distinguishing Smith v. Settle, 254 Va. 348, 492 S.E.2d 427
(1997)); Fisher, 236 Va. at 417, 374 S.E.2d at 54. Indeed, Code
§ 64.1-88 provides that in trying a bill to impeach, a court may
require all testamentary papers of the same decedent to be
produced and direct the jury to ascertain, if there are more
than one, which is the will of the decedent. Code § 64.1-88.
In this case, Mrs. Matthews’ alleged support of both wills
did not invite error, nor did Mrs. Matthews take advantage of
the situation created by the inconsistency. Mrs. Matthews’
consistent position was that her husband died testate. Mrs.
Matthews told the clerk, when she attempted to probate the 1995
will, that the original will had been stolen from her safe in
2003. She offered the 1993 will for probate because the clerk
would not probate the copy of the 1995 will, and probate of
either will had the same result, each child receiving one dollar
from the estate, and Mrs. Matthews the remainder. The circuit
court did not err in refusing to dismiss Mrs. Matthews’ appeal
of the clerk’s order concerning the 1995 will based on the
allegations of approbation and reprobation on her part.
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The children also assign error to the circuit court’s
refusal to dismiss Mrs. Matthews’ appeal of the clerk’s order
concerning the 1995 will based on the doctrine of judicial
estoppel. The modern-day doctrine of judicial estoppel is
derived from the Scottish law prohibiting approbation and
reprobation. Lofton Ridge, LLC v. Norfolk S. Ry. Co., 268 Va.
377, 381, 601 S.E.2d 648, 650 (2004) (citing Burch v. Grace
Street Bldg. Corp., 168 Va. 329, 340, 191 S.E. 672, 677 (1937)).
Judicial estoppel forbids a party “from assum[ing] successive
positions in the course of a suit, or series of suits, in
reference to the same fact or state of facts, which are
inconsistent with each other, or mutually contradictory.”
Lofton Ridge, 268 Va. at 380-81, 601 S.E.2d at 650 (internal
quotation marks omitted). In order for the doctrine to apply,
the proceeding must involve the same parties. Bentley Funding
Group, L.L.C. v. SK&R Group, L.L.C., 269 Va. 315, 326, 609
S.E.2d 49, 54 (2005). Along with a prior inconsistent factual
position or positions and identical parties, the party asserting
the inconsistent position must have also persuaded the court to
accept that earlier position. Id. at 327, 609 S.E.2d at 55.
“Absent success in a prior proceeding, a party’s later
inconsistent position introduces no risk of inconsistent court
determinations, and thus poses little threat to judicial
integrity.” Id.
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In this case, the children claim that Mrs. Matthews
asserted an inconsistent factual position in a prior proceeding,
by probating the 1993 will and defending it in the devisavit vel
non action, then appealing the clerk’s order denying probate to
the 1995 will. They claim Mrs. Matthews held inconsistent
factual positions concerning the validity of the 1993 will and
the validity of the 1995 will. However, whether a will is valid
is not a factual assertion, but a legal assertion. Further,
Mrs. Matthews did not achieve success concerning the attempt to
probate the 1993 will, because of the children’s bill to impeach
that will.
At the time she appealed the clerk’s order concerning the
1995 will, the children had already challenged the 1993 will in
their devisavit vel non action. Because of the bill to impeach,
Mrs. Matthews had not prevailed on the issue of the validity of
the 1993 will, but rather faced a jury trial to determine the
validity of that will. Because Mrs. Matthews had not been
successful in her prior proceeding concerning the 1993 will,
Mrs. Matthews should not have been judicially estopped from
appealing the clerk’s order denying probate of the 1995 will.
For the foregoing reasons, we hold that the circuit court
did not err in denying the children’s motion to dismiss Mrs.
Matthews’ appeal of the clerk’s order concerning the 1995 will.
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We will affirm the judgment of the circuit court and will enter
final judgment for Mrs. Matthews.
Affirmed.
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